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384 U.S. 886
86 S.Ct. 1906
16 L.Ed.2d 993
Anthony CASTALDI, petitioner,v.UNITED STATES.
No. 33.
Carmine P. TRAMUNTI, petitioner,
v.
UNITED STATES.
No. 218.
Supreme Court of the United States
June 20, 1966
Daniel H. Greenberg, for petitioner Castaldi.
Philip R. Edelbaum, for petitioner Tramunti.
Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Richard W. Schmude, for the United States in No. 33.
Solicitor General Cox, Assistant Attorney General Vinson, Beatrice Rosenberg and Theodore George Gilinsky, for the United States in No. 218.
On Petitions for writs of certiorari to the United States Court of Appeals for the Second Circuit.
PER CURIAM.
1
The petitions for writs of certiorari are granted. The judgments are vacated and the cases are remanded to the United States District Court for the Southern District of New York for further proceedings in the light of Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622.
2
Mr. Justice BLACK concurs in the result.
3
Mr. Justice HARLAN dissents for the reasons stated in his opinion in Cheff v. Schnackenberg, 384 U.S. 373, at 380, 86 S.Ct. 1537, 16 L.Ed.2d 629, at 634.
| 01
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384 U.S. 895
86 S.Ct. 1977
16 L.Ed.2d 1001
Woodrow WHISMANv.GEORGIA.
No. 1381, Misc.
Supreme Court of the United States
June 20, 1966
Rehearing Denied Oct. 10, 1966.
See 87 S.Ct. 27.
Reuben A. Garland and Beryl H. Weiner, for appellant.
Arthur K. Bolton, Atty. Gen. of Georgia, and Alfred L. Evans, Jr., Asst. Atty. Gen., for appellee.
PER CURIAM.
1
The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.
2
Mr. Justice DOUGLAS is of the opinion that certiorari should be granted and the judgment reversed. He would remand the case for a new trial, it being clear from the record that the principles announced in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, were not applied. He sees no reason for discriminating against this petitioner, the case having come here on direct review and being of the same vintage as Miranda v. State of Arizona. See dissenting opinion in Johnson v. State of New Jersey, 384 U.S. 736, 86 S.Ct. 1782, 16 L.Ed.2d 894.
| 01
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384 U.S. 757
86 S.Ct. 1826
16 L.Ed.2d 908
Armando SCHMERBER, Petitioner,v.STATE OF CALIFORNIA.
No. 658.
Argued April 25, 1966.
Decided June 20, 1966.
Thomas M. McGurrin, Beverly Hills, Cal., for petitioner.
Edward L. Davenport, Los Angeles, Cal., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Petitioner was convicted in Los Angeles Municipal Court of the criminal offense of driving an automobile while under the influence of intoxicating liquor.1 He had been arrested at a hospital while receiving treatment for injuries suffered in an accident involving the automobile that he had apparently been driving.2 At the direction of a police officer, a blood sample was then withdrawn from petitioner's body by a physician at the hospital. The chemical analysis of this sample revealed a percent by weight of alcohol in his blood at the time of the offense which indicated intoxication, and the report of this analysis was admitted in evidence at the trial. Petitioner objected to receipt of this evidence of the analysis on the ground that the blood had been withdrawn despite his refusal, on the advice of his counsel, to consent to the test. He contended that in that circumstance the withdrawal of the blood and the admission of the analysis in evidence denied him due process of law under the Fourteenth Amendment, as well as specific guarantees of the Bill of Rights secured against the States by that Amendment: his privilege against self-incrimination under the Fifth Amendment; his right to counsel under the Sixth Amendment; and his right not to be subjected to unreasonable searches and seizures in violation of the Fourth Amendment. The Appellate Department of the California Superior Court rejected these contentions and affirmed the conviction.3 In view of constitutional decisions since we last considered these issues in Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448—see Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, and Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081—we granted certiorari. 382 U.S. 971, 86 S.Ct. 542, 15 L.Ed.2d 464. We affirm.
I.
2
THE DUE PROCESS CLAUSE CLAIM.
3
Breithaupt was also a case in which police officers caused blood to be withdrawn from the driver of an automobile involved in an accident, and in which there was ample justification for the officer's conclusion that the driver was under the influence of alcohol. There, as here, the extraction was made by a physician in a simple, medically acceptable manner in a hospital environment. There, however, the driver was unconscious at the time the blood was withdrawn and hence had no opportunity to object to the procedure. We affirmed the conviction there resulting from the use of the test in evidence, holding that under such circumstances the withdrawal did not offend 'that 'sense of justice' of which we spoke in Rochin v. (People of) California, 1952, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183.' 352 U.S., at 435, 77 S.Ct. at 410. Breithaupt thus requires the rejection of petitioner's due process argument, and nothing in the circumstances of this case4 or in supervening events persuades us that this aspect of Breithaupt should be overruled.
II.
4
THE PRIVILEGE AGAINST SELF-INCRIMINATION CLAIM
5
Breithaupt summarily rejected an argument that the withdrawal of blood and the admission of the analysis report involved in that state case violated the Fifth Amendment privilege of any person not to 'be compelled in any criminal case to be a witness against himself,' citing Twining v. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97. But that case, holding that the protections of the Fourteenth Amendment do not embrace this Fifth Amendment privilege, has been succeeded by Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653. We there held that '(t)he Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement—the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty * * * for such silence.' We therefore must now decide whether the withdrawal of the blood and admission in evidence of the analysis involved in this case violated petitioner's privilege. We hold that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature,5 and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends.
6
It could not be denied that in requiring petitioner to submit to the withdrawal and chemical analysis of his blood the State compelled him to submit to an attempt to discover evidence that might be used to prosecute him for a criminal offense. He submitted only after the police officer rejected his objection and directed the physician to proceed. The officer's direction to the physician to administer the test over petitioner's objection constituted compulsion for the purposes of the privilege. The critical question, then, is whether petitioner was thus compelled 'to be a witness against himself.'6
7
If the scope of the privilege coincided with the complex of values it helps to protect, we might be obliged to conclude that the privilege was violated. in Miranda v. Arizona, 384 U.S. 436, at 460, 86 S.Ct. 1602, at 1620, 16 L.Ed.2d 694, at 715, the Court said of the interests protected by the privilege: '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,' * * * 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.' The withdrawal of blood necessarily involves puncturing the skin for extraction, and the percent by weight of alcohol in that blood, as established by chemical analysis, is evidence of criminal guilt. Compelled submission fails on one view to respect the 'inviolability of the human personality.' Moreover, since it enables the State to rely on evidence forced from the accused, the compulsion violates at least one meaning of the requirement that the State procure the evidence against an accused 'by its own independent labors.'
8
As the passage in Miranda implicitly recognizes, however, the privilege has never been given the full scope which the values it helps to protect suggest. History and a long line of authorities in lower courts have consistently limited its protection to situations in which the State seeks to submerge those values by obtaining the evidence against an accused through 'the cruel, simple expedient of compelling it from his own mouth. * * * 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." Ibid. The leading case in this Court is Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021. There the qustion was whether evidence was admissible that the accused, prior to trial and over his protest, put on a blouse that fitted him. It was contended that compelling the accused to submit to the demand that he model the blouse violated the privilege. Mr. Justice Holmes, speaking for the Court, rejected the argument as 'based upon an extravagant extension of the 5th Amendment,' and went on to say: '(T)he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material. The objection in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof.' 218 U.S., at 252—253, 31 S.Ct., at 6.7
9
It is clear that the protection of the privilege reaches an accused's communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one's papers. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746. On the other hand, both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.8 The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling 'communications' or 'testimony,' but that compulsion which makes a suspect or accused the source of 'real or physical evidence' does not violate it.
10
Although we agree that this distinction is a helpful framework for analysis, we are not to be understood to agree with past applications in all instances. There will be many cases in which such a distinction is not readily drawn. Some tests seemingly directed to obtain 'physical evidence,' for example, lie detector tests measuring changes in body function during interrogation, may actually be directed to eliciting responses which are essentially testimonial. To compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment. Such situations call to mind the principle that the protection of the privilege 'is as broad as the mischief against which it seeks to guard.' Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 198.
11
In the present case, however, no such problem of application is presented. Not even a shadow of testimonial compulsion upon or enforced communication by the accused was involved either in the extraction or in the chemical analysis. Petitioner's testimonial capacities were in no way implicated; indeed, his participation, except as a donor, was irrelevant to the results of the test, which depend on chemical analysis and on that alone.9 Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner's testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds.
III.
12
THE RIGHT TO COUNSEL CLAIM.
13
This conclusion also answers petitioner's claim that, in compelling him to submit to the test in face of the fact that his objection was made on the advice of counsel, he was denied his Sixth Amendment right to the assistance of counsel. Since petitioner was not entitled to assert the privilege, he has no greater right because counsel erroneously advised him that he could assert it. His claim is strictly limited to the failure of the police to respect his wish, reinforced by counsel's advice, to be left inviolate. No issue of counsel's ability to assist petitioner in respect of any rights he did possess is presented. The limited claim thus made must be rejected.
IV.
14
THE SEARCH AND SEIZURE CLAIM.
15
In Breithaupt, as here, it was also contended that the chemical analysis should be excluded from evidence as the product of an unlawful search and seizure in violation of the Fourth and Fourteenth Amendments. The Court did not decide whether the extraction of blood in that case was unlawful, but rejected the claim on the basis of Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782. That case had held that the Constitution did not require, in state prosecutions for state crimes, the exclusion of evidence obtained in violation of the Fourth Amendment's provisions. We have since overruled Wolf in that respect, holding in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, that the exclusionary rule adopted for federal prosecutions in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, must also be applied in criminal prosecutions in state courts. The question is squarely presented therefore, whether the chemical analysis introduced in evidence in this case should have been excluded as the product of an unconstitutional search and seizure.
16
The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State. In Wolf we recognized '(t)he security of one's privacy against arbitrary intrusion by the police' as being 'at the core of the Fourth Amendment' and 'basic to a free society.' 338 U.S., at 27, 69 S.Ct. at 1361. We reaffirmed that broad view of the Amendment's purpose in applying the federal exclusionary rule to the States in Mapp.
17
The values protected by the Fourth Amendment thus substantially overlap those of the Fifth Amendment helps to protect. History and precedent have required that we today reject the claim that the Self-Incrimination Clause of the Fifth Amendment requires the human body in all circumstances to be held inviolate against state expeditions seeking evidence of crime. But if compulsory administration of a blood test does not implicate the Fifth Amendment, it plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment. That Amendment expressly provides that '(t)he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated * * *.' (Emphasis added.) It could not reasonably be argued, and indeed respondent does not argue, that the administration of the blood test in this case was free of the constraints of the Fourth Amendment. Such testing procedures plainly constitute searches of 'persons,' and depend antecedently upon seizures of 'persons,' within the meaning of that Amendment.
18
Because we are dealing with intrusions into the human body rather than with state interferences with property relationships or private papers—'houses, papers, and effects'—we write on a clean slate. Limitations on the kinds of property which may be seized under warrant,10 as distinct from the procedures for search and the permissible scope of search,11 are not instructive in this context. We begin with the assumption that once the privilege against self-incrimination has been found not to bar compelled intrusions into the body for blood to be analyzed for alcohol contest, the Fourth Amendment's proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner. In other words, the questions we must decide in this case are whether the police were justified in requiring petitioner to submit to the blood test, and whether the means and procedures employed in taking his blood respected relevant Fourth Amendment standards of reasonableness.
19
In this case, as will often be true when charges of driving under the influence of alcohol are pressed, these questions arise in the context of an arrest made by an officer without a warrant. Here, there was plainly probable cause for the officer to arrest petitioner and charge him with driving an automobile while under the influence of intoxicating liquor.12 The police officer who arrived at the scene shortly after the accident smelled liquor on petitioner's breath, and testified that petitioner's eyes were 'bloodshot, watery, sort of a glassy appearance.' The officer saw petitioner again at the hospital, within two hours of the accident. There he noticed similar symptoms of drunkenness. He thereupon informed petitioner 'that he was under arrest and that he was entitled to the services of an attorney, and that he could remain silent, and that anything that he told me would be used against him in evidence.'
20
While early cases suggest that there is an unrestricted 'right on the part of the government always recognized under English and American law, to search the person of the accused when legally arrested, to discover and seize the fruits or evidences of crime,' Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 344, 58 L.Ed.2d 652; People v. Chiagles, 237 N.Y. 19 o, 142 N.E. 583 (1923) (Cardozo, J.), the mere fact of a lawful arrest does not end our inquiry. The suggestion of these cases apparently rests on two factors—first, there may be more immediate danger of concealed weapons or of destruction of evidence under the direct control of the accused, United States v. Rabinowitz, 339 U.S. 56, 72—73, 70 S.Ct. 430, 437, 438, 94 L.Ed. 653 (Frankfurter, J., dissenting); second, once a search of the arrested person for weapons is permitted, it would be both impractical and unnecessary to enforcement of the Fourth Amendment's purpose to attempt to confine the search to those objects alone. People v. Chiagles, 237 N.Y., at 197—198, 142 N.E., at 584. Whatever the validity of these considerations in general, they have little applicability with respect to searches involving intrusions beyond the body's surface. The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.
21
Although the facts which established probable cause to arrest in this case also suggested the required relevance and likely success of a test of petitioner's blood for alcohol, the question remains whether the arresting officer was permitted to draw these inferences himself, or was required instead to procure a warrant before proceeding with the test. Search warrants are ordinarily required for searches of dwellings, and absent an emergency, no less could be required where intrusions into the human body are concerned. The requirement that a warrant be obtained is a requirement that inferences to support the search 'be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.' Johnson v. United States, 333 U.S. 10, 13—14, 68 S.Ct. 367, 369, 92 L.Ed. 436; see also Aguilar v. State of Texas, 378 U.S. 108, 110—111, 84 S.Ct. 1509, 1511, 1512, 12 L.Ed.2d 723. The importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt is indisputable and great.
22
The officer in the present case, however, might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened 'the destruction of evidence,' Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777. We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest.
23
Similarly, we are satisfied that the test chosen to measure petitioner's blood-alcohol level was a reasonable one. Extraction of blood samples for testing is a highly effective means of determining the degree to which a person is under the influence of alcohol. See Breithaupt v. Abram, 352 U.S., at 436, n. 3, 77 S.Ct. at 410, 1 L.Ed.2d 448. Such tests are a commonplace in these days of periodic physical examination13 and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain. Petitioner is not one of the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing, such as the 'Breathalyzer' test petitioner refused, see n. 9, supra. We need not decide whether such wishes would have to be respected.14
24
Finally, the record shows that the test was performed in a reasonable manner. Petitioner's blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment—for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.
25
We thus conclude that the present record shows no violation of petitioner's right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual's person is a cherished value of our society. That we today told that the Constitution does not forbid the States minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.
26
Affirmed.
27
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, concurring.
28
In joining the Court's opinion I desire to add the following comment. While agreeing with the Court that the taking of this blood test involved no testimonial compulsion, I would go further and hold that apart from this consideration the case in no way implicates the Fifth Amendment. Cf. my dissenting opinion and that of Mr. Justice White in Miranda v. Arizona, 384 U.S. 504, 526, 86 S.Ct. 1643, 1655, 16 L.Ed.2d 740, 753.
29
Mr. Chief Justice WARREN, dissenting.
30
While there are other important constitutional issues in this case, I believe it is sufficient for me to reiterate my dissenting opinion in Breithaupt v. Abram, 352 U.S. 432, 440, 77 S.Ct. 408, 412, as the basis on which to reverse this conviction.
31
Mr. Justice BLACK with whom Mr. Justice DOUGLAS joins, dissenting.
32
I would reverse petitioner's conviction. I agree with the Court that the Fourteenth Amendment made applicable to the States the Fifth Amendment's provision that 'No person * * * shall be compelled in any criminal case to be a witness against himself * * *.' But I disagree with the Court's holding that California did not violate petitioner's constitutional right against self-incrimination when it compelled him, against his will, to allow a doctor to puncture his blood vessels in order to extract a sample of blood and analyze it for alcoholic content, and then used that analysis as evidence to convict petitioner of a crime.
33
The Court admits that 'the State compelled (petitioner) to submit to an attempt to discover evidence (in his blood) that might be (and was) used to prosecute him for a criminal offense.' To reach the conclusion that compelling a person to give his blood to help the State convict him is not equivalent to compelling him to be a witness against himself strikes me as quite an extraordinary feat. The Court, however, overcomes what had seemed to me to be an insuperable obstacle to its conclusion by holding that
34
'* * * the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends.' (Footnote omitted.)
35
I cannot agree that this distinction and reasoning of the Court justify denying petitioner his Bill of Rights' guarantee that he must not be compelled to be a witness against himself.
36
In the first place it seems to me that the compulsory extraction of petitioner's blood for analysis so that the person who analyzed it could give evidence to convict him had both a 'testimonial' and a 'communicative nature.' The sole purpose of this project which proved to be successful was to obtain 'testimony' from some person to prove that petitioner had alcohol in his blood at the time he was arrested. And the purpose of the project was certainly 'communicative' in that the analysis of the blood was to supply information to enable a witness to communicate to the court and jury that petitioner was more or less drunk.
37
I think it unfortunate that the Court rests so heavily for its very restrictive reading of the Fifth Amendment's privilege against self-incrimination on the words 'testimonial' and 'communicative.' These words are not models of clarity and precision as the Court's rather labored explication shows. Nor can the Court, so far as I know, find precedent in the former opinions of this Court for using these particular words to limit the scope of the Fifth Amendment's protection. There is a scholarly precedent, however, in the late Professor Wigmore's learned treatise on evidence. He used 'testimonial' which, according to the latest edition of his treatise revised by McNaughton, means 'communicative' (8 Wigmore, Evidence § 2263 (McNaughton rev. 1961), p. 378), as a key word in his vigorous and extensive campaign designed to keep the privilege against self-incrimination 'within limits the strictest possible.' 8 Wigmore, Evidence § 2251 (3d ed. 1940), p. 318. Though my admiration for Professor Wigmore's scholarship is great, I regret to see the word he used to narrow the Fifth Amendment's protection play such a major part in any of this Court's opinions.
38
I am happy that the Court itself refuses to follow Professor Wigmore's implication that the Fifth Amendment goes no further than to bar the use of forced self-incriminating statements coming from a 'person's own lips.' It concedes, as it must so long as Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, stands, that the Fifth Amendment bars a State from compelling a person to produce papers he has that might tend to incriminate him. It is a strange hierarchy of values that allows the State to extract a human being's blood to convict him of a crime because of the blood's content but proscribes compelled production of his lifeless papers. Certainly there could be few papers that would have any more 'testimonial' value to convict a man of drunken driving than would an analysis of the alcoholic content of a human being's blood introduced in evidence at a trial for driving while under the influence of alcohol. In such a situation blood, of course, is not oral testimony given by an accused but it can certainly 'communicate' to a court and jury the fact of guilt.
39
The Court itself, at page 764, expresses its own doubts, if not fears, of its own shadowy distinction between compelling 'physical evidence' like blood which it holds does not amount to compelled self-incrimination, and 'eliciting responses which are essentially testimonial.' And in explanation of its fears the Court goes on to warn that
40
'To compel a person to submit to testing (by lie detectors for example) in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment. Such situations call to mind the principle that the protection of the privilege 'is as broad as 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).'
41
A basic error in the Court's holding and opinion is its failure to give the Fifth Amendment's protection against compulsory self-incrimination the broad and liberal construction that Counselman and other opinions of this Court have declared it ought to have.
42
The liberal construction given the Bill of Rights' guarantee in Boyd v. United States, supra, which Professor Wigmore criticized severely, see 8 Wigmore, Evidence, § 2264 (3d ed. 1940), pp. 366—373, makes that one among the greatest constitutional decisions of this Court. In that case, 116 U.S. at 634—635, 6 S.Ct. at 534, all the members of the Court decided that civil suits for penalties and forfeitures incurred for commission of offenses against the law,
43
'* * * are within the reason of criminal proceedings for all the purposes of * * * that portion of the fifth amendment which declares that no person shall be compelled in any criminal case to be a witness against himself; * * * within the meaning of the fifth amendment to the constitution * * *.'*
44
Obviously the Court's interpretation was not completely supported by the literal language of the Fifth Amendment. Recognizing this, the Court announced a rule of constitutional interpretation that has been generally followed ever since, particularly in judicial construction of Bill of Rights guarantees:
45
'A close and literal construction (of constitutional provisions for the security of persons and property) deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.' Boyd v. United States, supra, at 635, 6 S.Ct. at 535.
46
The Court went on to say, at 637, 6 S.Ct. at 536, that to require 'an owner to produce his private books and papers, in order to prove his breach of the laws, and thus to establish the forfeiture of his property, is surely compelling him to furnish evidence against himself.' The Court today departs from the teachings of Boyd. Petitioner Schmerber has undoubtedly been compelled to give his blood 'to furnish evidence against himself,' yet the Court holds that this is not forbidden by the Fifth Amendment. With all deference I must say that the Court here gives the Bill of Rights' safeguard against compulsory self-incrimination a construction that would generally be considered too narrow and technical even in the interpretation of an ordinary commercial contract.
47
The Court apparently, for a reason I cannot understand, finds some comfort for its narrow construction of the Fifth Amendment in this Court's decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. I find nothing whatever in the majority opinion in that case which either directly or indirectly supports the holding in this case. In fact I think the interpretive constitutional philosophy used in Miranda, unlike that used in this case, gives the Fifth Amendment's prohibition against compelled self-incrimination a broad and liberal construction in line with the wholesome admonitions in the Boyd case. The closing sentence in the Fifth Amendment section of the Court's opinion in the present case is enough by itself, I think, to expose the unsoundness of what the Court here holds. That sentence reads:
48
'Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner's testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds.' How can it reasonably be doubted that the blood test evidence was not in all respects the actual equivalent of 'testimony' taken from petitioner when the result of the test was offered as testimony, was considered by the jury as testimony, and the jury's verdict of guilt rests in part on that testimony? The refined, subtle reasoning and balancing process used here to narrow the scope of the Bill of Rights' safeguard against self-incrimination provides a handy instrument for further narrowing of that constitutional protection, as well as others, in the future. Believing with the Framers that these constitutional safeguards broadly construed by independent tribunals of justice provide our best hope for keeping our people free from governmental oppression, I deeply regret the Court's holding. For the foregoing reasons as well as those set out in concurring opinions of Black and Douglas, JJ., in Rochin v. People of California, 342 U.S. 165, 174, 177, 72 S.Ct. 205, 210, 212, 96 L.Ed. 183, and my concurring opinion in Mapp v. Ohio, 367 U.S. 643, 661, 81 S.Ct. 1684, 1694, 6 L.Ed.2d 1081, and the dissenting opinions in Breithaupt v. Abram, 352 U.S. 432, 440, 442, 77 S.Ct. 408, 412, 413, 1 L.Ed.2d 448, I dissent from the Court's holding and opinion in this case.
49
Mr. Justice DOUGLAS, dissenting.
50
I adhere to the views of The Chief Justice in his dissent in Breithaupt v. Abram, 352 U.S. 432, 440, 77 S.Ct. 408, 412, 1 L.Ed.2d 448, and to the views I stated in my dissent in that case (id., 442, 77 S.Ct. 413) and add only a word.
51
We are dealing with the right of privacy which, since the Breithaupt case, we have held to be within the penumbra of some specific guarantees of the Bill of Rights. Griswold v. State of Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510. Thus, the Fifth Amendment marks 'a zone of privacy' which the Government may not force a person to surrender. Id., 484, 85 S.Ct. 1681. Likewise the Fourth Amendment recognizes that right when it guarantees the right of the people to be secure 'in their persons.' Ibid. No clearer invasion of this right of privacy can be imagined than forcible bloodletting of the kind involved here.
52
Mr. Justice FORTAS, dissenting.
53
I would reverse. In my view, petitioner's privilege against self-incrimination applies. I would add that, under the Due Process Clause, the State, in its role as prosecutor, has no right to extract blood from an accused or anyone else, over his protest. As prosecutor, the State has no right to commit any kind of violence upon the person, or to utilize the results of such a tort, and the extraction of blood, over protest, is an act of violence. Cf. Chief Justice Warren's dissenting opinion in Breithaupt v. Abram, 352 U.S. 432, 440, 77 S.Ct. 408, 412, 1 L.Ed.2d 448.
1
California Vehicle Code § 23102(a) provides, in pertinent part, 'It is unlawful for any person who is under the influence of intoxicating liquor * * * to drive a vehicle upon any highway. * * *' The offense is a misdemeanor.
2
Petitioner and a companion had been drinking at a tavern and bowling alley. There was evidence showing that petitioner was driving from the bowling alley about midnight November 12, 1964, when the car skidded, crossed the road and struck a tree. Both petitioner and his companion were injured and taken to a hospital for treatment.
3
This was the judgment of the highest court of the State in this proceeding since certification to the California District Court of Appeal was denied. See Edwards v. People of State of California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119.
4
We 'cannot see that it should make any difference whether one states unequivocally that he objects or resorts to physical violence in protest or is in such condition that he is unable to protest.' Breithaupt v. Abram, 352 U.S., at 441, 77 S.Ct., at 413. (WARREN, C.J., dissenting). It would be a different case if the police initiated the violence, refused to respect a reasonable request to undergo a different form of testing, or responded to resistance with inappropriate force. Compare the discussion at Part IV, infra.
5
A dissent suggests that the report of the blood test was 'testimonial' or 'communicative,' because the test was performed in order to obtain the testimony of others, communicating to the jury facts about petitioner's condition. Of course, all evidence received in court is 'testimonial' or 'communicative' if these words are thus used. But the Fifth Amendment relates only to acts on the part of the person to whom the privilege applies, and we use these words subject to the same limitations. A nod or headshake is as much a 'testimonial' or 'communicative' act in this sense as are spoken words. But the terms as we use them do not apply to evidence of acts noncommunicative in nature as to the person asserting the privilege, even though, as here, such acts are compelled to obtain the testimony of others.
6
Many state constitutions, including those of most of the original Colonies, phrase the privilege in terms of compelling a person to give 'evidence' against himself. But our decision cannot turn on the Fifth Amendment's use of the word 'witness.' '(A)s the manifest purpose of the constitutional provisions, both of the states and of the United States, is to prohibit the compelling of testimony of a self-incriminating kind from a party or a witness, the liberal construction which must be placed upon constitutional provisions for the protection of personal rights would seem to require that the constitutional guaranties, however differently worded, should have as far as possible the same interpretation * * *.' Counselman v. Hitchcock, 142 U.S. 547, 584—585, 12 S.Ct. 195, 206, 35 L.Ed. 1110. 8 Wigmore, Evidence § 2252 (McNaughton rev. 1961).
7
Compare Wigmore's view, 'that the privilege is limited to testimonial disclosures. It was directed at the employment of legal process to extract from the person's own lips an admission of guilt, which would thus take the place of other evidence.' 8 Wigmore, Evidence § 2263 (McNaughton rev. 1961). California adopted the Wigmore formulation in People v. Trujillo, 32 Cal.2d 105, 194 P.2d 681 (1948); with specific regard to blood tests, see People v. Haeussler, 41 Cal.2d 252, 260 P.2d 8 (1953); People v. Duroncelay, 48 Cal.2d 766, 312 P.2d 690 (1957). Our holding today, however, is not to be understood as adopting the Wigmore formulation.
8
The cases are collected in 8 Wigmore, Evidence § 2265 (McNaughton rev. 1961). See also United States v. Chibbaro, 361 F.2d 365 (C.A.3d Cir. 1966); People v. Graves, 64 Cal.2d 208, 49 Cal.Rptr. 386, 388, 411 P.2d 114, 116 (1966); Weintraub, Voice Identification, Writing Exemplars and the Privilege Against Self-Incrimination, 10 Vand.L.Rev. 485 (1957).
9
This conclusion would not necessarily govern had the State tried to show that the accused had incriminated himself when told that he would have to be tested. Such incriminating evidence may be an unavoidable by-product of the compulsion to take the test, especially for an individual who fears the extraction or opposes it on religious grounds. If it wishes to compel persons to submit to such attempts to discover evidence, the State may have to forgo the advantage of any testimonial products of administering the test—products which would fall within the privilege. Indeed, there may be circumstances in which the pain, danger, or severity of an operation would almost inevitably cause a person to prefer confession to undergoing the 'search,' and nothing we say today should be taken as establishing the permissibility of compulsion in that case. But no such situation is presented in this case. See text at n. 13 infra.
Petitioner has raised a similar issue in this case, in connection with a police request that he submit to a 'breathalyzer' test of air expelled from his lungs for alcohol content. He refused the request, and evidence of his refusal was admitted in evidence without objection. He argues that the introduction of this evidence and a comment by the prosecutor in closing argument upon his refusal is ground for reversal under Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. We think general Fifth Amendment principles, rather than the particular holding of Griffin, would be applicable in these circumstances, see Miranda v. Arizona, 384 U.S. at p. 468, n. 37, 86 S.Ct. 1624. Since trial here was conducted after our decision in Malloy v. Hogan, supra, making those principles applicable to the States, we think petitioner's contention is foreclosed by his failure to object on this ground to the prosecutor's question and statements.
10
See, e.g., Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; contra, People v. Thayer, 63 Cal.2d 635, 47 Cal.Rptr. 780, 408 P.2d 108 (1965); State v. Bisaccia, 45 N.J. 504, 213 A.2d 185 (1965); Note, Evidentiary Searches: The Rule and the Reason, 54 Geo.L.J. 593 (1966).
11
See, e.g. Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734; Abel v. United States, 362 U.S. 217, 235, 80 S.Ct. 68o, 695, 4 L.Ed.2d 668; United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653.
12
California law authorizes a peace officer to arrest 'without a warrant * * * (w)henever he has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed.' Cal. Penal Code § 836.3. Although petitioner was ultimately prosecuted for a misdemeanor he was subject to prosecution for the felony since a companion in his car was injured in the accident, which apparently was the result of traffic law violations. Cal.Vehicle Code § 23101. California's test of probable cause follows the federal standard. People v. Cockrell, 63 Cal.2d 659, 47 Cal.Rptr. 788, 408 P.2d 116 (1965).
13
'The blood test procedure has become routine in our everyday life. It is a ritual for those going into military service as well as those applying for marriage licenses. Many colleges require such tests before permitting entrance and literally millions of us have voluntarily gone through the same, though a longer, routine in becoming blood donors.' Breithaupt v. Abram, 352 U.S., at 436, 77 S.Ct. at 410.
14
See Karst, Legislative Facts in Constitutional Litigation, 1960 Sup.Ct.Rev. 75, 82—83.
*
A majority of the Court applied the same constitutional interpretation to the search and seizure provisions of the Fourth Amendment over the dissent of Mr. Justice Miller, concurred in by Chief Justice Waite.
| 01
|
384 U.S. 719
86 S.Ct. 1772
16 L.Ed.2d 882
Sylvester JOHNSON and Stanley Cassidy, Petitioners,v.STATE OF NEW JERSEY.
No. 762.
Argued March 1 and 2, 1966.
Decided June 20, 1966.
Rehearing Denied Oct. 10, 1966.
See 87 S.Ct. 12.
[Syllabus from pages 719-720 intentionally omitted]
Stanford Shmukler, Philadelphia, Pa., M. Gene Haeberle, Camden, N.J., for petitioners.
Norman Heine, Camden, N.J., for respondent.
[Amicus Curiae from pages 720-721 intentionally omitted]
Duane R. Nedrud, for National District Attorneys Ass'n, amicus curiae, by special leave of Court. (Also in Nos. 759, 760 and 584)
Opinion of the Court by Mr. Chief Justice WARREN, announced by Mr. Justice BRENNAN.
1
In this case we are called upon to determine whether Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, should be applied retroactively. We hold that Escobedo affects only those cases in which the trial began after June 22, 1964, the date of that decision. We hold further that Miranda applies only to cases in which the trial began after the date of our decision one week ago. The convictions assailed here were obtained at trials completed long before Escobedo and Miranda were rendered, and the rulings in those cases are therefore inapplicable to the present proceeding. Petitioners have also asked us to overturn their convictions on a number of other grounds, but we find these contentions to be without merit, and consequently we affirm the decision below.
2
Petitioner Cassidy was taken into custody in Camden, New Jersey, at 4 a.m. on January 29, 1958, for felony murder. The police took him to detective headquarters and interrogated him in a systematic fashion for several hours. At 9 a.m. he was brought before the chief detective, two other police officers, and a court stenographer. The chief detective introduced the persons present, informed Cassidy of the possible charges against him, gave him the warning set forth in the margin,1 concluded that he understood the warning, and obtained his consent to be questioned. Cassidy was then interrogated until 10:25 a.m. and made a partial confession to felony murder. The stenographer recorded this interrogation and read it back to Cassidy for his acknowledgment. Police officers then took him to another part of the building and apparently questioned him further. At 12:15 p.m. he was brought back to the chief detective's office for another half hour of recorded interrogation. Under circumstances similar to those already described, Cassidy amended his confession to add vital incriminating details. For the next 11 hours he was held in a detention room and may have been subjected to further questioning. At 11:40 p.m. the police returned him to the chief detective's office for a final brief round of recorded interrogation. Taken together, Cassidy's three formal statements added up to a complete confession of felony murder, and they were later introduced against him at his trial for that crime.
3
While the present collateral proceeding was pending following our decision in Escobedo, Cassidy filed affidavits in the New Jersey Supreme Court which detailed for the first time certain supposed circumstances of his confession. In his own affidavit, he claimed that on at least five separate occasions during his interrogation, he asked for permission to consult a lawyer or to contact relatives. The police allegedly either ignored these requests or told him that he could not communicate with others until his statement was completed. Cassidy also produced affidavits from his mother, his uncle, and his aunt, claiming that during this period they called the detective headquarters at least three times and once appeared there in person, seeking information about Cassidy and an opportunity to speak with him. Their efforts allegedly were thwarted by police. These belated claims were left uncontroverted by the State and were accepted as true by the court below for purposes of the Escobedo issue.
4
The police took petitioner Johnson into custody in Newark, New Jersey, at 5 p.m. on January 29, 1958, for the same crime as Cassidy. He was taken to detective headquarters and was booked. Later in the evening the police brought him before a magistrate for a brief preliminary hearing. The record is unclear as to what transpired there. Both before and after the appearance in court, he was questioned in a routine manner. At 2 a.m. the police drove Johnson by auto to Camden, the scene of the homicide, 80 miles from Newark. During the auto ride he was again interrogated about the crime. Upon arrival in Camden at about 4:30 a.m., the police took him directly to detective headquarters and brought him before the chief detective, three other police officers, and a court stenographer. As in Cassidy's case, Johnson was introduced to the persons present, informed of the possible charges against him, and given the same warning already set forth. He stated that he understood the warning and was willing to be questioned under those conditions. The police then interrogated him until 6:20 a.m., a period of about one and one-half hours. During the course of the questioning, he made a full confession to the crime of felony murder. This interrogation was recorded by the stenographer and read back to Johnson for his acknowledgment.
5
Like Cassidy, Johnson filed affidavits in the New Jersey Supreme Court in this collateral proceeding following our decision in Escobedo, detailing for the first time certain supposed circumstances of his confession. In his own affidavit, he claimed that at four separate points during the period described above, he asked for permission to consult a lawyer or to contact relatives so that they could obtain a lawyer for him. As in Cassidy's case, the police allegedly either ignored these requests or told him that he could not communicate with others until he had given a statement. Johnson also produced affidavits from his mother and his girl friend, claiming that on three occasions after the homicide and prior to the confession, they called detective headquarters or went there in person, seeking information about Johnson and an opportunity to speak with him. Their efforts allegedly were rebuffed by the police. These belated claims, like Cassidy's, were left uncontroverted by the State and were accepted as true by the court below for resolution of the Escobedo issue.
6
The confessions of Johnson and Cassidy were offered in evidence by the State at their joint trial for felony murder. The judge held a hearing out of the presence of the jury on the voluntariness of the confessions. Petitioners made no effort to rebut the testimony adduced by the State relating to this issue. The judge found the confessions voluntary and admitted them into evidence. Petitioners then expressly relinquished their right under state law to have the issue of voluntariness, and the accompanying evidence, submitted to the jury for redetermination.2 They did not introduce any testimony to dispute the correctness of their confessions.
7
In summation at the close of trial, defense counsel explicitly asserted that the confessions were truthful and pleaded for leniency on this ground. Cassidy's lawyer stated to the jury:
8
'Whatever is in this statement made by Stanley Cassidy is true. I know it is true. * * * (M)y reason for knowing that it is true is because of the meetings and consultations I have had with Stanley. We have been over this many, many times.
9
'I know it is true because I know Chief Dube, and Chief Dube is a fine interrogator. If you do not answer truthfully, believe me, he will question you until he does get the truth, and Chief Dube got the truth.'
Likewise Johnson's lawyer told the jury:
10
'The statement of Johnson was truthful and honest, because when that was finished, that was the end of it.
11
'There were no threats. There was no attempt to evade. There was no trickery. Anything that Chief Dube asked him he answered honestly and truthfully.'
12
The jury found Johnson and Cassidy guilty of murder in the first degree without recommendation of mercy, and they were sentenced to death.3
13
The convictions of Johnson and Cassidy became final six years ago, when the New Jersey Supreme Court affirmed them upon direct appeal4 and the time expired for petitioners to seek certiorari from the decision. There followed a battery of collateral attacks in state and federal courts based on new factual allegations, in which petitioners repeatedly and unsuccessfully assailed the voluntariness of their confessions.5 This proceeding arises out of still another application for post-conviction relief, accompanied by a fresh set of factual allegations, in which petitioners have argued in part that their confessions were inadmissible under the principles of Escobedo. The court below rejected the claim, holding that Escobedo did not affect convictions which had become final prior to the date of that decision,6 and it is this holding which we are principally called upon to review. In view of the standards announced one week ago concerning the warnings which must be given prior to in-custody interrogation, this case also obliges us to determine whether Miranda should be accorded retroactive application.
14
In the past year we have twice dealt with the problem of retroactivity in connection with other constitutional rules of criminal procedure. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966). These cases establish the principle that in criminal litigation concerning constitutional claims, 'the Court may in the interest of justice make the rule prospective * * * where the exigencies of the situation require such an application.' 381 U.S., at 628, 85 S.Ct., at 1737; 382 U.S., at 410, 86 S.Ct., at 461. These cases also delineate criteria by which such an issue may be resolved. We must look to the purpose of our new standards governing police interrogation, the reliance which may have been placed upon prior decisions on the subject, and the effect on the administration of justice of a retroactive application of Escobedo and Miranda. See 381 U.S., at 636, 85 S.Ct., at 1741; 382 U.S., at 413, 86 S.Ct., at 464.
15
In Linkletter we declined to apply retroactively the rule laid down in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), by which evidence obtained through an unreasonable search and seizure was excluded from state criminal proceedings. In so holding, we relied in part on the fact that the rule affected evidence 'the reliability and relevancy of which is not questioned.' 381 U.S., at 639, 85 S.Ct., at 1743. Likewise in Tehan we declined to give retroactive effect to Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), which forbade prosecutors and judges to comment adversely on the failure of a defendant to testify in a state criminal trial. In reaching this result, we noted that the basic purpose of the rule was to discourage courts from penalizing use of the privilege against self-incrimination. 382 U.S., at 414, 86 S.Ct., at 464.
16
As Linkletter and Tehan acknowledged, however, we have given retroactive effect to other constitutional rules of criminal procedure laid down in recent years, where different guarantees were involved. For example, in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), which concerned the right of an indigent to the advice of counsel at trial, we reviewed a denial of habeas corpus. Similarly, Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), which involved the right of an accused to effective exclusion of an involuntary confession from trial, was itself a collateral attack. In each instance we concluded that retroactive application was justified because the rule affected 'the very integrity of the fact-finding process' and averted 'the clear danger of convicting the innocent.' Linkletter v. Walker, 381 U.S., at 639, 85 S.Ct., at 1743; Tehan v. United States ex rel. Shott, 382 U.S., at 416, 86 S.Ct., at 465.
17
We here stress that the choice between retroactivity and nonretroactivity in no way turns on the value of the constitutional guarantee involved. The right to be represented by counsel at trial, applied retroactively in Gideon v. Wainwright, supra, has been described by Justice Schaefer of the Illinois Supreme Court as 'by far the most pervasive * * * (o)f all of the rights that an accused person has.'7 Yet Justice Brandeis even more boldly characterized the immunity from unjustifiable intrusions upon privacy, which was denied retroactive enforcement in Linkletter as 'the most comprehensive of rights and the right most valued by civilized men.'8 To reiterate what was said in Linkletter, we do not disparage a constitutional guarantee in any manner by declining to apply it retroactively. See 381 U.S., at 629, 85 S.Ct., at 1737.
18
We also stress that the retroactivity or nonretroactivity of a rule is not automatically determined by the provision of the Constitution on which the dictate is based. Each constitutional rule of criminal procedure has its own distinct functions, its own background of precedent, and its own impact on the administration of justice, and the way in which these factors combine must inevitably vary with the dictate involved. Accordingly as Linkletter and Tehan suggest, we must determine retroactivity 'in each case' by looking to the peculiar traits of the specific 'rule in question.' 381 U.S., at 629, 85 S.Ct., at 1737; 382 U.S., at 410, 86 S.Ct., at 461.
19
Finally, we emphasize that the question whether a constitutional rule of criminal procedure does or does not enhance the reliability of the fact-finding process at trial is necessarily a matter of degree. We gave retroactive effect to Jackson v. Denno, supra, because confessions are likely to be highly persuasive with a jury, and if coerced they may well be untrustworthy by their very nature.9 On the other hand, we denied retroactive application to Griffin v. State of California, supra, despite the fact that comment on the failure to testify may sometimes mislead the jury concerning the reasons why the defendant has refused to take the witness stand. We are thus concerned with a question of probabilities and must take account, among other factors, of the extent to which other safeguards are available to protect the integrity of the truth-determining process at trial.
20
Having in mind the course of the prior cases, we turn now to the problem presented here: whether Escobedo and Miranda should be applied retroactively.10 Our opinion in Miranda makes it clear that the prime purpose of these rulings is to guarantee full effectuation of the privilege against self-incrimination, the mainstay of our adversary system of criminal justice. See 384 U.S., pp. 458—466, 86 S.Ct., pp. 1619—1624. They are designed in part to assure that the person who responds to interrogation while in custody does so with intelligent understanding of his right to remain silent and of the consequences which may flow from relinquishing it. In this respect the rulings secure scrupulous observance of the traditional principle, often quoted but rarely heeded to the full degree, that 'the law will not suffer a prisoner to be made the deluded instrument of his own conviction.'11 Thus while Escobedo and Miranda guard against the possibility of unreliable statements in every instance of incustody interrogation, they encompass situations in which the danger is not necessarily as great as when the accused is subjected to overt and obvious coercion.
21
At the same time, our case law on coerced confessions is available for persons whose trials have already been completed, providing of course that the procedural prerequisites for direct or collateral attack are met. See Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Prisoners may invoke a substantive test of voluntariness which, because of the persistence of abusive practices, has become increasingly meticulous through the years. See Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961). That test now takes specific account of the failure to advise the accused of his privilege against self-incrimination or to allow him access to outside assistance. See Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959). Prisoners are also entitled to present evidence anew on this aspect of the voluntariness of their confessions if a full and fair hearing has not already been afforded them. See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Thus while Escobedo and Miranda provide important new safeguards against the use of unreliable statements at trial, the nonretroactivity of these decisions will not preclude persons whose trials have already been completed from invoking the same safeguards as part of an involuntariness claim.
22
Nor would retroactive application have the justifiable effect of curing errors committed in disregard of constitutional rulings already clearly foreshadowed. We have pointed out above that past decisions treated the failure to warn accused persons of their rights, or the failure to grant them access to outside assistance, as factors tending to prove the involuntariness of the resulting confessions. See Haynes v. State of Washington, supra; Spano v. People of State of New York, supra. Prior to Escobedo and Miranda, however, we had expressly declined to condemn an entire process of in-custody interrogation solely because of such conduct by the police. See Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958); Cicenia v. La Gay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523 (1958). Law enforcement agencies fairly relied on these prior cases, now no longer binding, in obtaining incriminating statements during the intervening years preceding Escobedo and Miranda. This is in favorable comparison to the situation before Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 (1961), where the States at least knew that they were constitutionally forbidden from engaging in unreasonable searches and seizures under Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949).
23
At the same time, retroactive application of Escobedo and Miranda would seriously disrupt the administration of our criminal laws. It would require the retrial or release of numerous prisoners found guilty by trustworthy evidence in conformity with previously announced constitutional standards. Prior to Escobedo and Miranda, few States were under any enforced compulsion on account of local law to grant requests for the assistance of counsel or to advise accused persons of their privilege against self-incrimination. Compare Crooker v. State of California, 357 U.S., at 448, n. 4, 78 S.Ct., at 1296 (dissenting opinion). By comparison, Mapp v. Ohio, supra, was already the law in a majority of the States at the time it was rendered, and only six States were immediately affected by Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229 (1965). See Tehan v. United States ex rel. Shott, 382 U.S., at 418, 86 S.Ct., at 466.
24
In the light of these various considerations, we conclude that Escobedo and Miranda, like Mapp v. Ohio, supra, and Griffin v. State of California, supra, should not be applied retroactively. The question remains whether Escobedo and Miranda shall affect cases still on direct appeal when they were decided or whether their application shall commence with trials begun after the decisions were announced. Our holdings in Linkletter and Tehan were necessarily limited to convictions which had become final by the time Mapp and Griffin were rendered. Decisions prior to Linkletter and Tehan had already established without discussion that Mapp and Griffin applied to cases still on direct appeal at the time they were announced. See 380 U.S., at 622 and n. 4, 85 S.Ct., at 1237; 382 U.S., at 409, n. 3, 86 S.Ct., at 461. On the other hand, apart from the application of the holdings in Escobedo and Miranda to the parties before the Court in those cases, the possibility of applying the decisions only prospectively is yet an open issue.
25
All of the reasons set forth above for making Escobedo and Miranda nonretroactive suggest that these decisions should apply only to trials begun after the decisions were announced. Future defendants will benefit fully from our new standards governing in-custody interrogation, while past defendants may still avail themselves of the voluntariness test. Law enforcement officers and trial courts will have fair notice that statements taken in violation of these standards may not be used against an accused. Prospective application only to trials begun after the standards were announced is particularly appropriate here. Authorities attempting to protect the privilege have not been apprised heretofore of the specific safeguards which are now obligatory. Consequently they have adopted devices which, although below the constitutional minimum, were not intentional evasions of the requirements of the privilege. In these circumstances, to upset all of the convictions still pending on direct appeal which were obtained in trials preceding Escobedo and Miranda would impose an unjustifiable burden on the administration of justice.
26
At the same time, we do not find any persuasive reason to extend Escobedo and Miranda to cases tried before those decisions were announced, even though the cases may still be on direct appeal. Our introductory discussion in Linkletter, and the cases cited therein, have made it clear that there are no jurisprudential or constitutional obstacles to the rule we are adopting here. See 381 U.S., at 622—629, 85 S.Ct., at 1733—1737. In appropriate prior cases we have already applied new judicial standards in a wholly prospective manner. See England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964); James v. United States, 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961). Nor have we been shown any reason why our rule is not a sound accommodation of the principles of Escobedo and Miranda.
27
In the light of these additional considerations, we conclude that Escobedo and Miranda should apply only to cases commenced after those decisions were announced. We recognize that certain state courts have perceived the implications of Escobedo and have therefore anticipated our holding in Miranda. Of course, States are still entirely free to effectuate under their own law stricter standards than those we have laid down and to apply those standards in a broader range of cases than is required by this decision.
28
Apart from its broad implications, the precise holding of Escobedo was that statements elicited by the police during an interrogation may not be used against the accused at a criminal trial,
29
'(where) the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent * * *.' 378 U.S., at 490—491, 84 S.Ct., at 1765.
30
Because Escobedo is to be applied prospectively, this holding is available only to persons whose trials began after June 22, 1964, the date on which Escobedo was decided.
31
As for the standards laid down one week ago in Miranda, if we were persuaded that they had been fully anticipated by the holding in Escobedo, we would measure their prospectivity from the same date. Defendants still to be tried at that time would be entitled to strict observance of constitutional doctrines already clearly foreshadowed. The disagreements among other courts concerning the implications of Escobedo,12 however, have impelled us to lay down additional guidelines for situations not presented by that case. This we have done in Miranda, and these guidelines are therefore available only to persons whose trials had not begun as of June 13, 1966. See Tehan v. United States ex rel. Shott, 382 U.S., at 409, 86 S.Ct., at 461, n. 3, in relation to Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), and Griffin v. State of California, supra.
32
Petitioners challenge the validity of their convictions on several other grounds, all of which we have examined with great care, including the claim that their confessions were coerced. We conclude without unnecessary discussion that those grounds which may be tested on this review of the judgment of the New Jersey Supreme Court are without merit. We further find that petitioners' contentions relating to the voluntariness of their confessions are beyond the scope of our review in this proceeding.
33
Petitioners' coerced confession claim was fully litigated and rejected both at trial and in prior post-conviction hearings in the state courts. On neither occasion, however, did petitioners attempt to substantiate certain allegations made for the first time in the present proceeding. As stated above, petitioners now assert that they were prevented from obtaining outside assistance while they were being interrogated. The police allegedly refused them access to their families or a lawyer and also thwarted the efforts of their relatives and friends to contact them. We have already pointed out that allegations of this kind are directly relevant to a coerced confession claim and that such a claim presents no problem of retroactivity. See also Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895.
34
The New Jersey Supreme Court invoked a state procedural rule, previously applied in another confession case, as a bar to reconsideration of petitioners' coerced confession claim, even in the light of their new allegations regarding the denial of outside assistance. See N.J.Rev.Rules 3:10A—5 (1965 Supp.); State v. Smith, 43 N.J. 67, 202 A.2d 669 (1964). This is an adequate state ground which precludes us from testing the coerced confession claim on the present review, whatever may be the significance of the state court's reliance on its procedural rule in federal habeas corpus proceedings. See Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822 (1963).
35
The judgment of the Supreme Court of New Jersey is affirmed.
36
Affirmed.
37
Mr. Justice CLARK concurs in the opinion and judgment of the Court. He adheres, however, to the views stated in his separate opinion in Miranda v. Arizona, 384 U.S. 499, 86 S.Ct. 1640.
38
Mr. Justice HARLAN, Mr. Justice STEWART, and Mr. Justice WHITE concur in the opinion and judgment of the Court. They continue to believe, however, for the reasons stated in the dissenting opinions of Mr. Justice Harlan and Mr. Justice White in Miranda v. Arizona and its companion cases, 384 U.S. 504, 526, 86 S.Ct. 1643, 1655, that the new constitutional rules promulgated in those cases are both unjustified and unwise.
39
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissents from the Court's holding that the petitioners here are not entitled to the full protections of the Fifth and Sixth Amendments as this Court has construed them in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, and Miranda v. Arizona, 384 U.S., p. 436, 86 S.Ct., p. 1602, 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.
1
'I am going to ask you some questions as to what you know about the hold-up, but before I ask you these questions it is my duty to warn you that everything you tell me must be of your own free will, must be the truth, without any promises or threats having been made to you, and knowing anything you tell me can be used against you, or any other person, at some future time.'
2
The procedure prescribed by state law was outlined in the opinion below as follows:
'Under the New Jersey procedure for the admission in evidence of a confession, the trial judge must first determine whether the confession was voluntary. If he finds the confession to be voluntary, and hence admissible, he instructs the jury to also consider the voluntariness of the confession and to disregard it unless the State proves it was voluntarily given.' 43 N.J. 572, 586, n. 9, 206 A.2d 737, 744—745, n. 9.
3
A third defendant, Wayne Godfrey, was also found guilty and sentenced to death. His conviction was subsequently overturned by a federal court in post-conviction proceedings. Upon retrial for felony murder, he pleaded non vult and was sentenced to life imprisonment.
4
State v. Johnson, 31 N.J. 489, 158 A.2d 11 (1960).
5
State v. Johnson, 63 N.J.Super. 16, 163 A.2d 593 (1960), aff'd, 34 N.J. 212, 168 A.2d 1, cert. denied, 368 U.S. 933, 82 S.Ct. 370, 7 L.Ed.2d 195 (1961); United States ex rel. Johnson v. Yeager, 327 F.2d 311 (C.A.3d Cir.), cert. denied, 377 U.S. 984, 84 S.Ct. 1890, 12 L.Ed.2d 751 (1964). See also State v. Johnson, 71 N.J.Super. 506, 177 A.2d 312, aff'd, 37 N.J. 19, 179 A.2d 1, cert. denied, 370 U.S. 928, 82 S.Ct. 1572, 8 L.Ed.2d 508 (1962).
6
43 N.J. 572, 206 A.2d 737.
7
Federalism and State Criminal Procedure, 70 Harv.L.Rev. 1, 8 (1956).
8
Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (dissenting opinion).
9
Coerced confessions are, of course, inadmissible regardless of their alleged truth or falsity. See Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961).
10
It appears that every state supreme court and federal court of appeals which has discussed the question has declined to apply the tenets of Escobedo retroactively. For example, see In re Lopez, 62 Cal.2d 368, 42 Cal.Rptr. 188, 398 P.2d 380 (1965); Ruark v. People, Colo., 405 P.2d 751 (1965); Commonwealth v. Negri, 419 Pa. 117, 213 A.2d 670 (1965); United States ex rel. Walden v. Pate, 350 F.2d 240 (C.A.7th Cir. 1965). The commentators, however, are divided on this issue. Compare Mishkin, Forward: The High Court, The Great Writ, and the Due Process of Time and Law, 79 Harv.L.Rev. 56 (1965), which opposes retroactive application, with Comment, Linkletter, Shott, and the Retroactivity Problem in Escobedo, 64 Mich.L.Rev. 832 (1966).
11
2 Hawkins, Pleas of the Crown 595 (8th ed. 1824).
12
For example, compare People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361 (1965), and People v. Dufour, R.I., 206 A.2d 82 (1965), which construe Escobedo broadly, with People v. Hartgraves, 31 Ill.2d 375, 202 N.E.2d 33 (1964), and Browne v. State, 24 Wis.2d 491, 129 N.W.2d 175, 131 N.W.2d 169 (1964).
| 01
|
384 U.S. 887
86 S.Ct. 1907
16 L.Ed.2d 991
John P. LOMENZO, Secretary of State of New York, et al.v.WMCA, INC., et al.
No. 81.
Appeal from the United States District Court for the Southern District of New York.
Former decision, 86 S.Ct. 1567.
Louis J. Lefkowitz, Atty. Gen. of New York, Thomas E. Dewey, Leonard Joseph and Malcolm H. Bell, for appellants.
Leo A. Larkin, Jack B. Weinstein, Leonard B. Sand and Max Gross, for appellees.
June 20, 1966.
PER CURIAM.
1
In WMCA, Inc. v. Lomenzo, 382 U.S. 4, 86 S.Ct. 24, 15 L.Ed.2d 2, we affirmed a judgment of the United States District Court for the Southern District of New York insofar as there appealed by WMCA, Inc., et al., the appellees in the present case. Appellants in this case, Lomenzo et al., challenge other aspects of the same judgment, and all parties now agree that, as to those aspects, the judgment of the District Court has been rendered moot by the actions of the Court of Appeals of New York in In the Matter of Orans, 17 N.Y.2d 107, 269 N.Y.S.2d 97, 216 N.E.2d 311 (1966), and Rockefeller v. Orans, 15 N.Y.2d 339, 258 N.Y.S.2d 825, 206 N.E.2d 854, appeal dismissed 382 U.S. 10, 86 S.Ct. 75, 15 L.Ed.2d 13 (1965). Accordingly, the judgment of the District Court is vacated as moot insofar as it concerns the issues here appealed, namely, whether N.Y.Laws 1964, cc. 977-978, 979, 981, are violative of the Equal Protection Clause of the Fourteenth Amendment to the Constitution, and whether the District Court was entitled to rely on provisions of the New York Constitution possibly affected by the action of this Court in WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568.
2
Mr. Justice FORTAS took no part in the consideration or decision of this case.
| 12
|
384 U.S. 737
86 S.Ct. 1761
16 L.Ed.2d 895
Elmer DAVIS, Jr., Petitioner,v.STATE OF NORTH CAROLINA.
No. 815.
Argued April 28, 1966.
Decided June 20, 1966.
Charles V. Bell, Charlotte, N.C., for petitioner.
James F. Bullock, Varina, N.C., for respondent.
Opinion of the Court by Mr. Chief Justice WARREN, announced by Mr. Justice BRENNAN.
1
Petitioner, Elmer Davis, Jr., was tried before a jury in the Superior Court of Mecklenburg County, North Carolina, on a charge of rape-murder. At trial, a written confession and testimony as to an oral confession were offered in evidence. Defense counsel objected on the ground that the confessions were involuntarily given. The trial judge heard testimony on this issue, ruled that the confessions were made voluntarily, and permitted them to be introduced in evidence. The jury returned a verdict of guilty without a recommendation for life imprisonment, and Davis was sentenced to death.
2
The conviction was affirmed on appeal by the Supreme Court of North Carolina, 253 N.C. 86, 116 S.E.2d 365, and this Court denied certiorari. 365 U.S. 855, 81 S.Ct. 816, 5 L.Ed.2d 819. Davis then sought a writ of habeas corpus in the United States District Court for the Eastern District of North Carolina. The writ was denied without an evidentiary hearing on the basis of the state court record. 196 F.Supp. 488. On appeal, the Court of Appeals for the Fourth Circuit reversed and remanded the case to the District Court for an evidentiary hearing on the issue of the voluntariness of Davis' confessions. 310 F.2d 904. A hearing was held in the District Court, following which the District Judge again held that the confessions were voluntary. 221 F.Supp. 494. The Court of Appeals for the Fourth Circuit, after argument and then resubmission en banc, affirmed with two judges dissenting. 339 F.2d 770. We granted certiorari. 382 U.S. 953, 86 S.Ct. 439, 15 L.Ed.2d 358.
3
We are not called upon in this proceeding to pass on the guilt or innocence of the petitioner of the atrocious crime that was committed. Nor are we called upon to determine whether the confessions obtained are true or false. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961). The sole issue presented for review is whether the confessions were voluntarily given or were the result of overbearing by police authorities. Upon thorough review of the record, we have concluded that the confessions were not made freely and voluntarily but rather that Davis' will was overborne by the sustained pressures upon him. Therefore, the confessions are constitutionally inadmissible and the judgment of the court below must be reversed.
4
Had the trial in this case before us come after our decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, we would reverse summarily. Davis was taken into custody by Charlotte police and interrogated repeatedly over a period of 16 days. There is no indication in the record that police advised him of any of his rights until after he had confessed orally on the 16th day.1 This would be clearly improper under Miranda. Id., 384 U.S. at 478—479, 492, 86 S.Ct. at 1630, 1637. Similarly, no waiver of rights could be inferred from this record since it shows only that Davis was repeatedly interrogated and that he denied the alleged offense prior to the time he finally confessed. Id., at 476, 499, 86 S.Ct. at 1629, 1640.
5
We have also held today, in Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, that our decision in Miranda, delineating procedures to safeguard the Fifth Amendment privilege against self-incrimination during incustody interrogation is to be applied prospectively only. Thus the present case may not be reversed solely on the ground that warnings were not given and waiver not shown. As we pointed out in Johnson, however, the nonretroactivity of the decision in Miranda does not affect the duty of courts to consider claims that a statement was taken under circumstances which violate the standards of voluntariness which had begun to evolve long prior to our decisions in Miranda and Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). This Court has undertaken to review the voluntariness of statements obtained by police in state cases since Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936). The standard of voluntariness which has evolved in state cases under the Due Process Clause of the Fourteenth Amendment is the same general standard which applied in federal prosecutions—a standard grounded in the policies of the privilege against self-incrimination. Malloy v. Hogan, 378 U.S. 1, 6—8, 84 S.Ct. 1489, 1492—1493, 12 L.Ed.2d 653 (1964).
6
The review of voluntariness in cases in which the trial was held prior to our decisions in Escobedo and Miranda is not limited in any manner by these decisions. On the contrary, that a defendant was not advised of his right to remain silent or of his right respecting counsel at the outset of interrogation, as is now required by Miranda, is a significant factor in considering the voluntariness of statements later made. This factor has been recognized in several of our prior decisions dealing with standards of voluntariness. Haynes v. State of Washington, 373 U.S. 503, 510—511, 83 S.Ct. 1336, 1341—1342, 10 L.Ed.2d 513 (1963); Culombe v. Connecticut, 367 U.S. 568, 610, 81 S.Ct. 1860, 1883, 6 L.Ed.2d 1037 (1961); Turner v. Commonwealth of Pennsylvania, 338 U.S. 62, 64, 69 S.Ct. 1352, 93 L.Ed. 1810 (1949). See also Gallegos v. State of Colorado, 370 U.S. 49, 54, 55, 82 S.Ct. 1209, 1212, 1213, 8 L.Ed.2d 325 (1962). Thus, the fact that Davis was never effectively advised of his rights gives added weight to the other circumstances described below which made his confessions involuntary.
7
As is almost invariably so in cases involving confessions obtained through unobserved police interrogation, there is a conflict in the testimony as to the events surrounding the interrogations. Davis alleged that he was beaten, threatened, and cursed by police and that he was told he would get a hot bath and something to eat as soon as he signed a statement. This was flatly denied by each officer who testified.2 Davis further stated that he had repeatedly asked for a lawyer and that police refused to allow him to obtain one. This was also denied. Davis' sister testified at the habeas corpus hearing that she twice came to the police station and asked to see him, but that each time police officers told her Davis was not having visitors. Police officers testified that, on the contrary, upon learning of Davis' desire to see his sister, they went to her home to tell her Davis wanted to see her, but she informed them she was busy with her children. These factual allegations were resolved against Davis by the District Court and we need not review these specific findings here.
8
It is our duty in this case, however, as in all of our prior cases dealing with the question whether a confession was involuntarily given, to examine the entire record and make an independent determination of the ultimate issue of voluntariness. E.g., Haynes v. State of Washington, 373 U.S. 503, 515—516, 83 S.Ct. 1336, 1344—1345, 10 L.Ed.2d 513 (1963); Blackburn v. State of Alabama, 361 U.S. 199, 205, 80 S.Ct. 274, 279, 4 L.Ed.2d 242 (1960); Ashcraft v. State of Tennessee, 322 U.S. 143, 147—148, 64 S.Ct. 921, 923, 88 L.Ed. 1192 (1944). Wholly apart from the disputed facts, a statement of the case from facts established in the record, in our view, leads plainly to the conclusion that the confessions were the product of a will overborne.
9
Elmer Davis is an impoverished Negro with a third or fourth grade education. His level of intelligence is such that it prompted the comment by the court below, even while deciding against him on his claim of involuntariness, that there is a moral question whether a person of Davis' mentality should be executed. Police first came in contact with Davis while he was a child when his mother murdered his father, and thereafter knew him through his long criminal record, beginning with a prison term he served at the age of 15 or 16.
10
In September 1959, Davis escaped from a state prison camp near Asheville, North Carolina, where he was serving sentences of 17 to 25 years. On September 20, 1959, Mrs. Foy Belle Cooper was raped and murdered in the Elmwood Cemetery in the City of Charlotte, North Carolina. On September 21, police in a neighboring county arrested Davis in Belmont, 12 miles from Charlotte. He was wearing civilian clothes and had in his possession women's undergarments and a billfold with identification papers of one Bishel Buren Hayes. Hayes testified at trial that his billfold and shoes had been taken from him while he lay in a drunken sleep near the Elmwood Cemetery on September 20.
11
Charlotte police learned of Davis' arrest and contacted the warden of the state prison to get permission to take Davis into their custody in connection with the Cooper murder and other felonies. Having obtained permission, they took Davis from Belmont authorities and brought him to the detective headquarters in Charlotte. From the testimony of the officers, it is beyond dispute that the reason for securing Davis was their suspicion that he had committed the murder.3
12
The second and third floors of the detective headquarters building contain lockup cells used for detention overnight and occasionally for slightly longer periods. It has no kitchen facilities for preparing meals. The cell in which Davis was placed measures 6 by 10 feet and contains a solid steel bunk with mattress, a drinking fountain, and a commode. It is located on the inside of the building with no view of daylight. It is ventilated by two exhaust fans located in the ceiling of the top floor of the building. Despite the fact that a county jail equipped and used for lengthy detention is located directly across the street from detective headquarters, Davis was incarcerated in this cell on an upper floor of the building for the entire period until he confessed.4 Police Chief Jesse James testified: 'I don't know anybody who has stayed in the city jail as long as this boy.'
13
When Davis arrived at the detective headquarters, an arrest sheet was prepared giving various statistics concerning him. On this arrest sheet was typed the following illuminating directive: 'HOLD FOR HUCKS & FESPERMAN RE-MRS. COOPER. ESCAPEE FROM HAYWOOD COUNTY STILL HAS 15 YEARS TO PULL. DO NOT ALLOW ANYONE TO SEE DAVIS. OR ALLOW HIM TO USE TELEPHONE.' Both at trial and at the habeas corpus hearing the testimony of police officers on this notation was nearly uniform. Each officer testified that he did not put that directive on the arrest sheet, that he did not know who did, and that he never knew of it. The police captain first testified at trial that there had never been an order issued in the police department that Davis was not to see or talk to anybody. He cited as an example the fact that Davis' sister came to see him (after Davis had confessed). He testified later in the trial, however:
14
'I don't know, it is possible I could have ordered this boy to be held without privilege of communicating with his friends, relatives and held without the privilege of using the telephone or without the privilege of talking to anybody. * * * No, I did not want him to talk to anybody. For the simple reason he was an escaped convict and it is the rules and regulations of the penal system that if he is a C grade prisoner he is not permitted to see anyone alone or write anyone letters and I was trying to conform to the state regulations.'5
15
The District Court found as a fact that from September 21 until after he confessed on October 6, neither friend nor relative saw Davis. It concluded, however, that Davis was not held incommunicado because he would have been permitted visitors had anyone requested to see him. In so finding, the District Court noted specifically the testimony that police officers contacted Davis' sister for him. But the court made no mention whatever of the notation on the arrest sheet or the testimony of the police captain.
16
The stark wording of the arrest sheet directive remains, as does Captain McCall's testimony. The denials and evasive testimony of the other officers cannot wipe this evidence from the record. Even accepting that police would have allowed a person to see Davis had anyone actually come, the directive stands unassailably as an indicium of the purpose of the police in holding Davis. As the dissenting judges below stated: 'The instruction not to permit anyone access to Davis and not to allow him to communicate with the outside world can mean only that it was the determination of his custodians to keep him under absolute control where they could subject him to questioning at will in the manner and to the extent they saw fit, until he would confess.' 339 F.2d, at 780. Moreover, the uncontested fact that no one other than the police spoke to Davis during the 16 days of detention and interrogation that preceded his confessions is significant in the determination of voluntariness.
17
During the time Davis was held by Charlotte police, he was fed two sandwiches, described by one officer as 'thin' and 'dry,' twice a day. This fare was occasionally supplemented with peanuts and other 'stuff' such as cigarettes brought to him by a police officer.6 The District Court found that the food was the same served prisoners held overnight in the detention jail and that there was no attempt by police to weaken Davis by inadequate feeding. The State contends that 'two sandwiches twice a day supplemented by peanuts 'and other stuff' was not such a poor diet, for an idle person doing no work, as to constitute a violation of due process of law.' Brief for Respondent, p. 7.
18
We may readily agree that the record does not show any deliberate attempt to starve Davis, compare Payne v. State of Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958), and that his diet was not below a minimum necessary to sustain him. Nonetheless, the diet was extremely limited and may well have had a significant effect on Davis' physical strength and therefore his ability to resist. There is evidence in the record, not rebutted by the State, that Davis lost 15 pounds during the period of detention.
19
From the time Davis was first brought to the overnight lockup in Charlotte on September 21, 1959, until he confessed on the 16th day of detention, police officers conducted daily interrogation sessions with him in a special interrogation room in the building.7 These sessions each lasted 'forty-five minutes or an hour or maybe a little more,' according to one of the interrogating officers. Captain McCall testified that he had assigned his entire force of 26 to 29 men to investigate the case. From this group, Detectives Hucks and Fesperman had primary responsibility for interrogating Davis. These officers testified to interrogating him once or twice each day throughout the 16 days. Three other officers testified that they conducted several interrogation sessions at the request of Hucks and Fesperman. Although the officers denied that Davis was interrogated at night, one testified that the interrogation periods he directed were held some time prior to 11 p.m.8 Captain McCall also interrogated Davis once.
20
According to each of the officers, no mention of the Cooper murder was made in any of the interrogations between September 21 and October 3. Between these dates they interrogated Davis extensively with respect to the stolen goods in his possession. It is clear from the record, however, that these interrogations were directly related to the murder and were not simply questioning as to unrelated felonies. The express purpose of this line of questioning was to break down Davis' alibis as to where he had obtained the articles. By destroying Davis' contention that he had taken the items from homes some distance from Charlotte, Davis could be placed at the scene of the crime.9
21
In order to put pressure on Davis with respect to these alibis police took him from the lockup on October 1 to have him point out where he had stolen the goods. Davis had told the officers that he took the items from houses along the railroad line between Canton and Asheville. To disprove this story, Davis was aroused at 5 a.m. and driven to Canton. There his leg shackles were removed and he walked on the railroad tracks, handcuffed to an officer, 14 miles to Asheville. When Davis was unable to recognize any landmark along the way or any house that he had burglarized, an officer confronted him with the accusation that his story was a lie. The State points out that Davis was well fed on this day, that he agreed to make the hike, and contends that it was not so physically exhausting as to be coercive. The coercive influence was not, however, simply the physical exertion of the march, but also the avowed purpose of that trek—to break down his alibis to the crime of murder.
22
On the afternoon of October 3, two officers planned and carried out a ruse to attempt to get Davis to incriminate himself in some manner. They engaged Davis in idle conversation for 10 to 20 minutes and then inquired whether he would like to go out for 'some fresh air.' They then took Davis from the jail and drove him into the cemetery to the scene of the crime in order to observe his reaction.
23
The purpose of these excursions and of all of the interrogation sessions was known to Davis. On the day of the drive to the cemetery, the interrogators shifted tactics and began questioning Davis specifically about the murder.10 They asked him if he knew why he was being held. He stated that he believed it was with respect to the Cooper murder. Police then pressed him, asking, 'Well, did you do it?' He denied it. The interrogation sessions continued through the next two days. Davis consistently denied any knowledge of the crime.11
24
On October 6, Detectives Hucks and Fesperman interrogated Davis for the final time. Lieutenant Sykes, who had known Davis' family, but who had not taken part in any of the prior interrogation sessions because he had been away on vacation, asked to sit in. During this interrogation, after repeated earlier denials of guilt, Davis refused to answer questions concerning the crime. At about 12:45 p.m., Lieutenant Sykes inquired of Davis if he would like to talk to any of the officers alone about Mrs. Cooper. Davis said he would like to talk to Sykes. The others left the room. Lieutenant Sykes then asked Davis if he had been reading a testament which he was holding. Davis replied that he had. Sykes asked Davis if he had been praying. Davis replied that he did not know how to pray and agreed he would like Sykes to pray for him. The lieutenant offered a short prayer. At that point, as the dissent below aptly put it, the prayers of the police officer were answered—Davis confessed. He was driven to the cemetery and asked to re-enact the crime. Police then brought him back to the station where he repeated the confession to several of the officers. In the presence of six officers, a two-page statement of the confession Davis had made was transcribed. Although based on the information Davis had given earlier, Captain McCall dictated this statement employing his own choice of format, wording, and content. He paused periodically to ask Davis if he agreed with the statement so far. Each time Davis acquiesced. Davis signed the statement.12 Captain McCall then contacted the press and stated, 'He finally broke down today.'13
25
The concluding paragraphs of this confession, dictated by the police, contain, along with the standard disclaimer that the confession was free and voluntary, a statement that unwittingly summarizes the coercive effect on Davis of the prolonged period of detention and interrogation. They read:
26
'In closing, I want to say this. I have known in my own mind that (sic) you people were holding me for, and all the time I have been lying in jail, it has been worrying me, and I knew that sooner or later, I would have to tell you about it.
27
'I have made this statement freely and voluntarily. Captain McCall has dictated this statement in the presence of Detectives W. F. Hucks, E. F. Fesperman, H. C. Gardner, C. E. Davis, and Detective Lieutenant C. L. Sykes. I am glad it is over, because I have been going thru a big strain.'
28
The facts established on the record demonstrate that Davis went through a prolonged period in which substantial coercive influences were brought to bear upon him to extort the confessions that marked the culmination of police efforts. Evidence of extended interrogation in such a coercive atmosphere has often resulted in a finding of involuntariness by this Court. E.g., Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); Fikes v. State of Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957); Turner v. Commonwealth of Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810 (1949). We have never sustained the use of a confession obtained after such a lengthy period of detention and interrogation as was involved in this case.
29
The fact that each individual interrogation session was of relatively short duration does not mitigate the substantial coercive effect created by repeated interrogation in these surroundings over 16 days. So far as Davis could have known, the interrogation in the overnight lockup might still be going on today had he not confessed. Moreover, as we have noted above, the fact that police did not directly accuse him of the crime until after a substantial period of eroding his will to resist by a tangential line of interrogation did not reduce the coercive influence brought to bear upon him. Similarly, it is irrelevant to the consideration of voluntariness that Davis was an escapee from a prison camp. Of course Davis was not entitled to be released. But this does not alleviate the coercive effect of his extended detention and repeated interrogation while isolated from everyone but the police in the police jail.
30
In light of all of the factors discussed above, the conclusion is inevitable—Davis' confessions were the involuntary end product of coercive influences and are thus constitutionally inadmissible in evidence. Accordingly, the judgment of the Court of Appeals for the Fourth Circuit must be reversed and the case remanded to the District Court. On remand, the District Court should enter such orders as are appropriate and consistent with this opinion, allowing the State a reasonable time in which to retry petitioner.
31
Reversed and remanded.
32
Mr. Justice BLACK concurs in the result.
33
Mr. Justice CLARK, with whom Mr. Justice HARLAN joins, dissenting.
34
The rationale of the Court's opinion is that Davis, 'an impoverished Negro with a third or fourth grade education,' was overborne when he gave his confession to the rape-murder.
35
Davis, a 39-year-old man, admits that he has 'been in a lot of jails.' The record indicates that his intelligence was far above that of a fourth grader. His own testimony at his trial reveals a highly retentive memory. He described in detail his numerous arrests, convictions, prison sentences, and escapes over a 15-year span. Furthermore, during the federal habeas corpus hearing Davis showed his awareness of legal technicalities. At one point the prosecutor sought to cross-examine Davis as to whether he had 'been tried and convicted of various offenses.' Despite the fact that there was no objection to the question by his lawyer, Davis turned to the judge and said: 'Your Honor, do I have to answer that question? This is in the past.' After some argument about the admissibility of the evidence, the judge recessed the hearing for 10 minutes to give counsel an opportunity to present legal authority. Davis' objection was thereafter sustained.
36
This case goes against the grain of our prior decisions. The Court first confesses that the rule adopted under the Fifth Amendment in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, i.e., that an accused must be effectively advised of his right to counsel before custodial interrogation, is not retroactive and therefore does not apply to this case. See Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. However, it obtains the same result by reading the Due Process Clause as requiring that heavy weight must be given the failure of the State to afford counsel during interrogation as 'a significant factor in considering the voluntariness of statements.' Through this change of pace Davis' guilty handwriting is stamped a forgery and his conviction is reversed.
37
I have found no case dealing with lengthy detention by state officers which supports reversal here. The Court cites three: Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); Fikes v. State of Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957); and Turner v. Commonwealth of Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810 (1949), all of which were treated in terms of due process. But these cases are clearly distinguishable on their facts with respect to the character of the accused and the circumstances under which interrogation took place. Culombe was a 'mental defective of the moron class' who had twice been in state mental institutions. He had no previous criminal record. Fikes was 'a schizophrenic and highly suggestible.' He had only one prior conviction—for burglary. The interrogation of both these men was more concentrated than that of Davis. Turner was subjected to continual interrogation by a relay of officers, falsely told that others had implicated him, and not permitted to see his family or friends. The prosecutor admitted that his arraignment was delayed, in violation of a state statute, until the police could secure a confession. Turner had no prior criminal record.
38
On the other hand, Davis had a long criminal record. At the time of his arrest he was an escapee from state prison, and so could be properly held in custody. It is therefore wrong to compare police conduct here to the detention of an ordinary suspect until he confesses. Moreover, the sporadic interrogation of Davis can hardly be denominated as sustained or overbearing pressure. From the record it appears that he was simply questioned for about an hour each day by a couple of detectives. There was no protracted grilling. Nor did the police officers operate in relays.
39
The Court makes much of an 'arrest sheet' which informed the jailer that Davis was being held in connection with the murder of Mrs. Cooper and that he was an escaped convict. This sheet further directed: 'Do not allow anyone to see Davis. Or allow him to use telephone.' No witness was able to identify the author of this notation. It is true Captain McCall said that he 'might' have done it. But he said that, even so, it was merely a notice to the jailer that Davis was an escapee and, therefore, not permitted to see or talk to anyone. On the contrary, however, the record shows that Davis was not held incommunicado. Upon his request, the police located his sister the second day after his arrest, informed her that Davis was in custody, and on two separate occasions invited her to visit him. The officers first called on his sister for the sole purpose of telling her that Davis wished to see her. A few days later they also asked whether she was missing any of the clothes which were found on Davis. He made no request to see anyone else. Moreover, it is undenied that visitors from churches and schools entered the jail with scripture pamphlets. And Davis had one of these booklets in his hands the day of his confession.
40
Witnesses testified that Davis told them that his treatment was 'very fine and that everybody was courteous and kind to him.' As for the hike of some 14 miles along the railroad tracks, Davis described the purpose of it clearly:
41
'Well, we had some clothes and things, what I took up there, and we wanted to go up there and get it straightened out; but the place where I took the stuff I couldn't locate the place because it was at night, you understand, when I took the clothes and things off the line.'
42
As to the 'prayer' of Lieutenant Sykes, there is no testimony whatever that it was in any way 'coercive.' Indeed, one witness, Davis' preacher, quoted him as saying 'that he had nothing but praise for Lieutenant Sykes, especially in the way in which he dealt with him.' At another point the parson testified: 'Elmer told me that he appreciated the prayer of Lieutenant Sykes.' The Court disregards the fact that Davis had a copy of the scriptures in his hands when Sykes came into the room and continued to hold them as they talked. After Sykes—a lay preacher—noticed the testament, it was only natural that the conversation would turn to the scriptures and prayer. Sykes asked if Davis wished him to give a prayer. Davis said that he did, and Sykes prayed with him. The prayer was entirely unsuggestive.
43
It is said also that the food was not sufficient. But the uncontradicted evidence is that Davis never complained about the meals he received while in custody.* Davis testified that he lost 15 pounds in jail. But this does not warrant a finding that he was improperly fed. No one could contradict or substantiate this contention because the record does not show that his weight was taken upon arrest. And Davis was found to be untruthful in most of his testimony. Indeed, Davis did not paint his treatment with a black brush until his habeas corpus hearing, although he testified at length at his trial in the state court.
44
Under these circumstances, it appears to me that the trial judge's findings cannot be found to be clearly erroneous. To the contrary, they are fully supported by the entire record. I would affirm.
1
The written confession which Davis subsequently signed contained a notation that he was advised he did not have to make a statement and that any statement made could be used for or against him in court. A police officer testified at trial that he told Davis if the statement was not the truth he did not have to sign it.
2
The State adds in its brief: 'Surely, Davis was not such a sensitive person, after all his years in prison, that 'cussing' and being called 'Nigger' constituted any degree of fear or coercion.' Brief for Respondent, p. 8.
3
Some of the officers testified that they had no idea why Davis was being brought to Charlotte except as an escapee or in relation to the stolen goods in his possession. Captain McCall, who was in charge of the entire detective division of the Charlotte Police, stated at trial, however: 'He was brought over here for the purpose of being an escaped convict and as a likely suspect in the murder case * * *. We were not holding him for the State when he was in Gaston County jail, but were making an investigation in reference to our murder case.' At the habeas corpus hearing, he testified: '(H)e was in our custody primarily because he was a suspect in Mrs. Cooper's case * * *.' Davis' prior offenses included an assault in the vicinity of the cemetery, and his home had been nearby. See also note 9, infra.
4
The only exception to this incarceration was a day spent near Asheville, described infra, and a night in the Asheville jail.
5
Transcript of Evidence on Appeal. His testimony at the habeas corpus hearing was very similar. He first stated somewhat confusingly:
'Inasmuch as he was an escaped convict, I would have asked them what was the purpose of placing this do not allow anyone to see Davis or allow him to use the telephone. To be perfectly honest with you, why put it in writing when you can do the same thing verbally. I mean there is no question about it. The question is that each individual is allowed due process of law. And if they had been asked in any way or if I had been asked for anyone to see Elmer, they would have been given permission. Nobody asked to my knowledge.'
He later testified:
'I didn't want anybody to talk to him without me knowing it as he was a prisoner of the State of North Carolina, and he was a C grade prisoner and not entitled to visitors without the permission of the warden.'
6
During the 16-day period, this diet varied only for two meals on the day he was taken to Asheville and on one other occasion when an officer brought him two hamburgers.
7
As the Police Chief explained: 'An interrogation room should be void of all materials so that you can talk to a man in complete quiet and keep his attention.'
8
After the officer admitted that the sessions might have been up to 11 p.m., the following question was posed and answered:
'Q. Well, he could have been interrogated by you at night, couldn't he?
'A. I'll say no and I'll say yes.'
Another officer testified as follows:
'Q. At the time you interrogated him up in the Police Department, was it daylight or dark?
'A. Well, it could have been both, if I remember correctly. I'll just leave it that way: it could have been both, because that's the way it is.'
9
Further graphic evidence of the obvious purpose of the police in detaining and repeatedly interrogating Davis is found in statements made to the press during this period:
'Detective Capt. W. A. McCall said Davis had not implicated himself in the Sunday slaying.
"We're still talking to him,' he said.' Charlotte Observer, Sept. 23, 1959, B—1.
'A Negro man was seen crouching in the bushes at Elmwood Cemetery shortly before the rape-slaying of an elderly widow there Sunday afternoon, Charlotte detectives said Wednesday.
'Charlotte detectives * * * continued interrogating E. J. Davis, the escapee who was arrested in Belmont Monday night.
"We questioned him twice today,' Capt. McCall said Wednesday night. 'He has given us some conflicting information, and we're checking all his alibis.'
"We'll give him a lie detector test if necessary. But so far we have had no positive results from our interrogaton." Charlotte Observer, Sept. 24, 1959, B—1.
"Everybody * * * everybody is a suspect in this case until we sign a murder warrant.'
'Detective Capt. W. A. McCall spoke these words Thursday as police continued their search for the man who killed and raped a 78-year-old widow in a local graveyard Sunday afternoon.
'But the main emphasis Thursday continued to be on E. J. Davis, a 32-year-old Negro prison escapee who was convicted of raping an elderly woman here in 1949.
'Davis was questioned at length Thursday for the third straight day.
"We know he's telling us some lies,' Capt. McCall said. 'We're checking every alibi and every story he gives us, and some of them just aren't true.
"We don't have enough facts yet to give him a lie detector test, though." Charlotte Observer, Sept. 25, 1959, B—1.
'Being questioned presently in connection with the slaying of 78-year-old Mrs. Foy Belle Cooper is E. J. Davis, a 32-year-old Negro escapee who was arrested Monday in Belmont. Davis has a prior record for rape in 1949.' Charlotte Observer, Sept. 26, 1950, B—1.
'Charlotte detectives concentrated Monday on a 32-year-old escaped convict in an effort to find who raped and murdered a 78-year-old widow here a week ago.
'Davis has been questioned closely several times in connection with the rapeslaying of Mrs. Foy Belle Cooper, 78.' Charlotte Observer, Sept. 29, 1959, 14—A.
'City detectives were still probing a man's alibis for loopholes Friday in an investigation into the rape-slaying of a 78-year-old white woman in Charlotte Sept. 20.
'The suspect is an escaped convict, E. J. Davis. * * *' Charlotte Observer, Oct. 3, 1959, B—1.
10
Although the District Court found that police did not interrogate Davis directly about the Cooper case until October 3, the testimony was not uniform on this point. There is testimony in the record by police officers that the first interrogation about the murder was on the Friday before he confessed—October 2, 1959. See 253 N.C. 86, 90, 116 S.E.2d 365, 367. See also Charlotte Observer, Cot. 7, 1959, A—1, Oct. 8, 1959, B—1.
11
Although the record does not show the tenor of the interrogation on October 4, it is established that Davis was interrogated every day and that he denied any connection with the crime until October 6.
12
After Davis signed the written confession, Police Chief Jesse James appeared to question Davis about his treatment. In response to this questioning, Davis stated that he had been treated all right. The following morning, a minister who know Davis' family and had read of his arrest 16 days earlier in the newspaper, appeared to talk to Davis. He testified that Davis told him his treatment had been very fine and that everyone had been courteous and kind to him. The minister indicated further that he often cooperated with police in such matters.
13
Charlotte Observer, Oct. 7, 1959, A—1—2.
*
On the morning that Davis left the jail to walk along the railroad tracks, a police officer asked him 'if he was hungry,' and his natural reply at that time of day was 'yes.' The officer then gave Davis breakfast.
| 01
|
384 U.S. 890
86 S.Ct. 1915
16 L.Ed.2d 996
Bruce BAINES et al.v.CITY OF DANVILLE, VIRGINIA.
No. 959.
Supreme Court of the United States
June 20, 1966
Rehearing Denied Oct. 10, 1966.
See 87 S.Ct. 12.
Arthur Kinoy, William M. Kunstler and J. L. Williams, for petitioners.
Rutledge C. Clement, for respondent.
On Petition for Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit.
PER CURIAM.
1
The motions to dispense with printing the petition for a writ of certiorari and the respondent's brief are granted. The petition for writ of certiorari is also 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, 89 S.Ct., at 1816, 16 L.Ed.2d at 961.
| 89
|
385 U.S. 19
87 S.Ct. 212
17 L.Ed.2d 17
Lillian S. McGILL et al.v.C. F. RYALS et al.
No. 381, Misc.
Supreme Court of the United States
October 17, 1966
Vernon Z. Crawford, Marton Stavis, William M. Kunstler, Arthur Kinoy and Benjamin E. Smith, for appellants.
Truman Hobbs, for appellees.
PER CURIAM.
1
The appeal is dismissed for want of jurisdiction because the case was not appropriate for a three-judge court.
2
Mr. Justice DOUGLAS is of the opinion that a three-judge court was properly convened and would affirm the judgment of the lower court.
| 89
|
385 U.S. 32
87 S.Ct. 195
17 L.Ed.2d 31
PITTSBURGH TOWING COMPANYv.MISSISSIPPI VALLEY BARGE LINE COMPANY et al.
No. 319.
Nov. 7, 1966.
Rehearing Denied Dec. 12, 1966.
See 385 U.S. 995, 87 S.Ct. 594.
Ernie Adamson, for appellant.
Arthur L. Winn, Jr., Samuel H. Moerman, J. Raymond Clark and James M. Henderson, for appellees.
PER CURIAM.
1
The motion to dismiss is granted for failure of appellant to comply with the time requirement of Rule 13(1) of the Rules of this Court in docketing its appeal. This appeal was docketed 22 days after expiration of the 60-day period provided by the Rule. During that period, appellant made no application for an enlargement of time, either to the District Court or to a Justice of this Court (see Rule 13(1)), nor did any explanation accompany the untimely docketing of the appeal. The jurisdictional statement itself is silent on the subject. Not until appellee moved to dismiss pursuant to Rule 14(2) did appellant comment upon its default. Its reply to the Motion to Dismiss states that the 'delay was occasioned by a misunderstanding between Counsel for appellant.' It does not elaborate.
2
This Court has been generous in excusing errors of counsel, but if there are to be rules, there must be some limit to our willingness to overlook their violation. While we are inclined to be generous in exercising our discretion to forgive a mistake and waive the consequences of negligence, fairness to other counsel and to parties with business before the Court as well as due regard for our own procedures leads us to believe that this case does not warrant our indulgence.
3
Mr. Justice BLACK, dissenting.
4
Due to a misunderstanding among appellant's lawyers this case was not docketed nor was the record filed until 22 days after the 60-day period prescribed by this Court's Rule 13(1). The Court now, quite contrary to its recent practices, dismisses the case pursuant to Rule 14(2) because of this error of appellant's lawyers. Rule 14(2) permits, but does not require, such a harsh court order to be made. Appellant's counsel, upon reporting the misunderstanding to a member of this Court, could unquestionably have obtained an enlargement of the time to docket the case extending even beyond the 22 days within which the record was actually filed. There is no indication whatever that the appellees, their counsel or other parties with business before this Court have been injured—as the Court seems to intimate without record support—by this slight formalistic delinquency. On the contrary, the appellant is denied review of a judgment setting aside an Interstate Commerce Commission order, a type of three-judge district court judgment from which Congress has seen fit to give aggrieved persons a direct appeal to this Court. Thus, for a mere paper-filing negligence of appellant's counsel, the purpose of Congress to grant reviews of this special category of administrative orders is frustrated.
5
This case is now to take its place among a growing number of others where mere procedural rules have been used to prevent the consideration and determination of cases on their merits. See e.g., Lord v. Helmandollar, 121 U.S.App.D.C. 168, 348 F.2d 780, cert. denied, 383 U.S. 928, 86 S.Ct. 929, 15 L.Ed.2d 847, Black, J., dissenting; Riess v. Murchison, cert. denied, 383 U.S. 946, 86 S.Ct. 1196, 16 L.Ed.2d 209, Black J., dissenting; Link v. Wabash R. Co., 370 U.S. 626, 636, 82 S.Ct. 1386, 8 L.Ed.2d 734, Black, J., joined by The Chief Justice, dissenting; Beaufort Concrete Co. v. Atlantic States Constr. Co., 384 U.S. 1004, 86 S.Ct. 1908, 16 L.Ed.2d 1018, Black, J., dissenting; Santana v. United States, 385 U.S. 848, 87 S.Ct. 74, Black, J., dissenting. I find it inconsistent with a fair system of justice to throw out a litigant's case because his lawyer, due to negligence, or misunderstanding, or some other reason fails to satisfy one of many procedural time limits. If a pound of flesh is required because of negligence of a lawyer, why not impose the penalty on him and not his innocent client?
6
As I have previously stated, 'The filing of court papers on time is, of course, important in our court system. But lawsuits are not conducted to reward the litigant whose lawyer is most diligent or to punish the litigant whose lawyer is careless. Procedural paper requirements should never stand as a series of dangerous hazards to the achievement of justice through a fair trial on the merits.' Beaufort Concrete Co., supra, 384 U.S. at 1006, 86 S.Ct. at 1910, Black, J., dissenting. The conflict between the interest of the court clerk in the timely filing of papers and the interest of the citizen in having his lawsuit tried should be resolved in favor of the citizen, not the court clerk. I would not dismiss this case for violation of Rule 13(1).
| 89
|
385 U.S. 23
87 S.Ct. 193
17 L.Ed.2d 23
SWITZERLAND CHEESE ASSOCIATION, INC., et al., Petitioners,v.E. HORNE'S MARKET, INC.
No. 42.
Argued Oct. 17, 1966.
Decided Nov. 7, 1966.
David Toren (John J. Mc.Glew and Alfred E. Page, on the briefs), for petitioners.
Harold E. Cole, for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioners brought this suit for trademark infringement and unfair competition under the trademark laws. 60 Stat. 427, 15 U.S.C. § 1051 et seq. They sought a preliminary injunction during the pendency of the action, a permanent injunction, and damages. After issue was joined, petitioners moved for a summary judgment granting a permanent injunction and awarding damages against respondent. The District Court could not say that there was 'no genuine issue as to any material fact' within the meaning of Rule 56 of the Federal Rules of Civil Procedure which governs summary judgments and accordingly denied the motion. Petitioners appealed, claiming that order to be an 'interlocutory' one 'refusing' an injunction within the meaning of § 1292(a) (1) of the Judicial Code, 28 U.S.C. § 1292(a)(1).1
2
The Court of Appeals held that the order denying the motion for a summary judgment was not an 'interlocutory' one within the meaning of § 1292(a)(1) and dismissed the appeal for want of jurisdiction. 351 F.2d 552. We granted certiorari because of a conflict between that decision and those from the Second Circuit. See, e.g., Federal Glass Co. v. Loshin, 217 F.2d 936.2
3
Unlike some state procedures, federal law expresses the policy against piecemeal appeals. See Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233. Hence we approach this statute somewhat gingerly lest a floodgate be opened that brings into the exception many pretrial orders. It is earnestly argued, however, that, although this order denied a permanent injunction, it was nonetheless 'interlocutory' within the meaning of § 1292(a)(1) because the motion for summary judgment did service for a motion for a preliminary injunction (see Federal Glass Co. v. Loshin, supra, 217 F.2d at 938) and that therefore 'interlocutory' must also include a denial of a permanent injunction.
4
We take the other view not because 'interlocutory' or preliminary may not at times embrace denials of permanent injunctions, but because the denial of a motion for a summary judgment because of unresolved issues of fact does not settle or even tentatively decide anything about the merits of the claim. It is strictly a pretrial order that decides only one thing—that the case should go to trial. Orders that in no way touch on the merits of the claim but only relate to pretrial procedures are not in our view 'interlocutory' within the meaning of § 1292(a)(1). We see no other way to protect the integrity of the congressional policy against piecemeal appeals.3
5
Affirmed.
6
Mr. Justice HARLAN would affirm the judgment below on the basis of the reasoning set forth in Judge Waterman's opinion for the Second Circuit in Chappell & Co., Inc. v. Frankel, 367 F.2d 197.
7
Mr. Justice STEWART concurs in the result.
1
That section provides:
'(a) The courts of appeals shall have jurisdiction of appeals from:
'(1) Interlocutory orders of the district courts of the United States * * * or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court.'
2
Subsequent to the grant of certiorari in this case, the Second Circuit, en banc, reversed its position and held that such an order is not appealable. Chappell & Co., Inc., v. Frankel, 367 F.2d 197.
3
As Judge Charles E. Clark said, in dissent, in Peter Pan Fabrics, Inc. v. Dixon Textile Corp., 2 Cir., 280 F.2d 800, at 805 806:
'A district judge's orders advancing a case to trial ought not to be critically examined and re-examined by the cumbersome method of appeal before he has approached the stage of adjudication. * * * I believe this an intolerable burden for us, an improper and uncertain interference with trial court discretion, and a confusing invitation to indiscriminate appeals in the future—all contrary to settled federal law against piecemeal appeals.' Id., at 805, 806.
| 89
|
385 U.S. 26
87 S.Ct. 190
17 L.Ed.2d 26
Fred B. BLACKv.UNITED STATES.
No. 1029, October Term, 1965.
Decided Nov. 7, 1966.
Hans A. Nathan, Warren E. McGee and Bert B. Rand, for petitioner.
Solicitor General Marshall, for the United States.
PER CURIAM.
1
In Davis v. United States, 385 U.S. 927, 87 S.Ct. 284, 17 L.Ed.2d 210, we today denied the petition for certiorari. The sole question raised there (but not passed upon by the Court of Appeals because not necessary to its disposition) involved petitioners' claim that conferences between petitioners and their counsel were surreptitiously overheard and intercepted by law enforcement officials through concealed monitorial devices built into the jail where petitioners were being held for federal authorities. The Solicitor General did not deny the existence of the devices but said that there were no recordings of the conversations in question. He pointed out that since the case has been remanded by the Court of Appeals for a new trial on other grounds, a full exploration of this question could be made on retrial. In the light of these representations we denied the petition for certiorari so that the question might be fully explored at the new trial, as suggested by the Solicitor General.
2
In the instant case, Black v. United States, the petition for rehearing now raises a similar question and while Davis v. United States, supra, is not controlling, its relation is obvious. In Black the Solicitor General advised the Court voluntarily on May 24, 1966, after the petition for certiorari had been denied, 384 U.S. 927, 86 S.Ct. 1444, 16 L.Ed.2d 530, but before an application for rehearing had been filed, that agents of the Federal Bureau of Investigation, in a matter unrelated to this case, on February 7, 1963, installed a listening device in petitioner's hotel suite in Washington, D.C. The device monitored and taped conversations held in the hotel suite during the period the offense was being investigated and beginning some two months before and continuing until about one month after the evidence in this case was presented to the Grand Jury. During that period, 'the monitoring agents,' the Solicitor General advised 'overheard, among other conversations, exchanges between petitioner and the attorney who was then representing him (Black)' in this case. In a supplemental memorandum filed July 13, 1966, the Solicitor General, in response to an inquiry by the Court, stated that the recordings of such interceptions had been erased from the tapes but that notes summarizing and sometimes quoting the conversations intercepted were available, and that reports and memoranda concerning the same had been made. 'Neither the reports nor the memoranda,' he reported, 'were seen by attorneys of the Tax Division responsible for the prosecution of' this case until January 1964, when in preparing for trial they were included in material transmitted to them; the reports and memoranda of the intercepted conversations were examined by the Tax Division attorneys and retained by them until April 15, 1964, when petitioner's trial began; and the attorneys never realized until April 21, 1966, that any conversations between Black and his attorney had been overheard and included in the transcriptions.
3
The Solicitor General advised further that the 'Tax Division attorneys found nothing in the F.B.I. reports or memoranda which they considered relevant to the tax evasion case.' He suggests that the judgment be vacated and remanded to the District Court in which the 'relevant materials would be produced and the court would determine, upon an adversary hearing, whether petitioner's conviction should stand.' We have sometimes used this technique in federal criminal cases, United States v. Shotwell Mfg. Co., 355 U.S. 233, 78 S.Ct. 245, 2 L.Ed.2d 234. However, its use has never been automatic. Indeed, in Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654, we found it necessary, despite the hearing in the District Court, to subsequently order a new trial on the merits, 350 U.S. 377, 76 S.Ct. 425, 100 L.Ed. 435. There are other complicating factors here that were not present in Remmer. There the judge had been informed of the alleged jury tampering, but here neither the judge, the petitioner nor his counsel knew of the action of the federal agents. Moreover, the Solicitor General advises that the Tax Division attorneys did not know at the time of the trial that conversations between Black and his attorney were included in the transcriptions. In view of these facts it appears that justice requires that a new trial be held so as to afford the petitioner an opportunity to protect himself from the use of evidence that might be otherwise inadmissible.
4
This Court has never been disposed to vacate convictions without adequate justification, but, under the circumstances presented by the Solicitor General in this case we believe that a new trial must be held. This will give the parties an opportunity to present the relevant evidence and permit the trial judge to decide the questions involved. It will also permit the removal of any doubt as to Black's receiving a fair trial with full consideration being given to the new evidence reported to us by the Solicitor General.
5
The petition for rehearing is therefore granted, the order denying certiorari vacated, certiorari granted, the judgment of the Court of Appeals vacated and the cause remanded to the District Court for a new trial.
6
Mr. Justice WHITE and Mr. Justice FORTAS took no part in the consideration or decision of this case.
7
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, dissenting.
8
The denial of certiorari in No. 245, Davis v. United States where the Court of Appeals for the Fifth Circuit, 357 F.2d 438, has already ordered a new trial on grounds wholly unrelated to alleged eavesdropping and at which trial petitioners will have a full opportunity to explore their contentions that the Government interfered with their constitutionally protected right to counsel bears no solid relation to, still less furnishes justification for, what the Court has done in the present case. A brief statement of the circumstances of the Black disposition will reveal that in summarily vacating this final conviction and ordering a completely new trial the Court has acted prematurely.
9
In 1964, petitioner Black was convicted in the District Court of federal income tax violations. His conviction was affirmed by the Court of Appeals for the District of Columbia Circuit on November 10, 1965. 122 U.S.App.D.C. 347, 353 F.2d 885. Certiorari was denied by this Court on May 2, 1966. 384 U.S. 927, 86 S.Ct. 1444, 16 L.Ed.2d 530. Before Black's petition for rehearing was filed here, the Solicitor General filed a memorandum bringing to the Court's attention the fact that in the course of an unrelated criminal investigation Black's hotel suite had been 'bugged' by the Federal Bureau of Investigation and conversations between Black and his attorney electronically recorded. The Solicitor General further stated that in consequence of an investigation, instituted by him following his discovery of this occurrence, he was able to represent to the Court that none of the information so procured had been utilized in Black's aforesaid prosecution. In a further memorandum, filed in compliance with a request from this Court, the Solicitor General has represented that it was not until late August 1965 that the Criminal Division of the Department of Justice learned that a listening device had been installed in Black's hotel suite and not until April 21, 1966, that attorneys in the Tax Division, responsible for the prosecution, learned that any conversations between Black and his counsel had been overheard.
10
The Solicitor General recognizes that Black is entitled to a full exploration of the matter, and to that end suggests that the case be remanded to the District Court for a hearing and findings on the episode in question as it may bear on the validity of Black's conviction. Black responds that this course is inadequate and contends that this Court should, without more, forthwith order dismissal of the indictment in this income tax prosecution.
11
Without anything more before it than the representations made by both sides, the Court today orders a totally new trial in spite of the fact that the disclosure commendably made by the Solicitor General reveal no use of 'bugged' material in Black's prosecution, and no knowledge by prosecuting attorneys that material may have been improperly obtained. I agree, of course, that petitioner is entitled to a full-scale development of the facts, but I can see no valid reason why this unimpeached conviction should be vacated at this stage. In Davis, supra, exploration of the alleged eavesdropping episode is appropriate upon the retrial of the case since the original conviction has already fallen on other grounds. In the Black case, however, a new trial is not an appropriate vehicle for sorting out the eavesdropping issue because until it is determined that such occurrence vitiated the original conviction no basis for a retrial exists. The Court's action puts the cart before the horse. The orderly procedure is to remand the case to the District Court for a hearing and findings on the issues in question. See United States v. Shotwell Mfg. Co., 355 U.S. 233, 78 S.Ct. 245, 2 L.Ed.2d 234. See also Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654; 350 U.S. 377, 76 S.Ct. 425, 100 L.Ed. 435. Unless and until the facts on this issue have been resolved and their legal effect assessed favorably to petitioner, this conviction should remain undisturbed.
12
The only basis I can think of for justifying this decision is that any governmental activity of the kind here in question automatically vitiates, so as at least to require a new trial, any conviction occurring during the span of such activity. But I cannot believe that the Court, without even briefing or argument, intends to make any such sweeping innovation in the federal criminal law by today's peremptory disposition of this case.
| 01
|
385 U.S. 57
87 S.Ct. 255
17 L.Ed.2d 162
ILLINOIS CENTRAL RAILROAD COMPANY et al., Appellants,v.NORFOLK AND WESTERN RAILWAY COMPANY et al. CALUMET HARBOR TERMINALS, INC., et al., Appellants, v. NORFOLK AND WESTERN RAILWAY COMPANY et al. UNITED STATES and Interstate Commerce Commission, Appellants, v. NORFOLK AND WESTERN RAILWAY COMPANY et al.
Nos. 15, 17 and 20.
Argued Oct. 11, 1966.
Decided Nov. 14, 1966.
William J. O'Brien, Jr., Chicago, Ill., and Richard A. Posner, Washington, D.C., for appellants.
Theodore E. Desch, Chicago, Ill., for appellees.
Mr. Justice CLARK delivered the opinion of the Court.
1
This is an appeal from the judgment of a three-judge District Court, 241 F.Supp. 974, setting aside orders of the Interstate Commerce Commission, 307 I.C.C. 493, 312 I.C.C. 277, 317 I.C.C. 502, which granted the applications of seven railroads1 to provide additional rail service to the Lake Calumet Harbor Port near the southern limits of Chicago, Illinois. The service was to be provided through the construction of a single line of track into the Chicago Regional Port District for the joint use of the seven railroads. At present the port is served directly by only one railroad, appellee Chicago, Rock Island and Pacific Railroad Company (Rock Island). Appellee New York, Chicago and St. Louis Railroad Company (Nickel Plate),2 has facilities on the east side of Lake Calumet which has been reserved for future commercial development, but at present its facilities do not reach the port. The court, with one judge dissenting, rejected as not having 'ample support' in the record, the findings of the Commission that the public convenience and necessity required the additional service applied for by the seven roads. It further found, unanimously, that the requirements of due process were violated by the Commission in its refusal to give Rock Island and Nickel Plate a hearing before approving a nonexclusive agreement, subsequently executed between the applicant roads and the Port District, covering the use of the latter's facilities. The court ordered a new hearing on all the issues, one judge concluding that such hearing should be limited to the subsequently executed nonexclusive use agreement. We noted probable jurisdiction, 382 U.S. 913, 86 S.Ct. 288, 15 L.Ed.2d 230, and reverse the judgment.
I.
BACKGROUND OF LAKE CALUMET HARBOR PORT.
2
Lake Calumet Harbor Port is one of seven facilities within the Port of Chicago available for the handling of waterborne freight. It is a shallow lake approximately two miles in length and covers approximately 1,250 acres. It is accessible by water from Lake Michigan via the Calumet River into the heart of the Chicago switching district, a distance of some six miles.
3
As early as 1880 one of the Pullman companies constructed trackage that first brought rail service to Lake Calumet. Pullman reserved some 300 to 500 acres for the development of a harbor and later donated some acreage to the United States for the development of a turning basin. Comprehensive plans for dredging Lake Calumet harbor and the filling of submerged lands were prepared in 1916 by an engineer for the City of Chicago. In 1917 Pullman waived riparian rights to some four miles of Lake Calumet shoreline to the City of Chicago and in 1935 gave additional land to the United States for the purpose of widening the Calumet River.
4
In 1947 the Illinois Central, an appellant here, attempted to enter the port area. Pullman and two of the seven appellants here, New York Central and the Belt Railway Company of Chicago, opposed the application which was addressed to the Illinois Commerce Commission. In 1949, during the pendency of the proceeding, Rock Island acquired the common stock and certain industrial property of Pullman for $2,200,000. Rock Island then entered the proceedings in opposition to Illinois Central. The application of the latter was approved by the Illinois Commerce Commission but the Circuit Court of Cook County rejected it and the Supreme Court of Illinois affirmed in 1953. Chicago, R.I. & P.R. Co. v. Illinois Commerce Commission ex rel. Illinois Central R. Co., 414 Ill. 134, 111 N.E.2d 136.
5
The Interstate Commerce Commission in approving the acquisition of Pullman by Rock Island—over the objections of Illinois Central and the Belt Railway Company, each of which also sought to acquire Pullman or a portion of its trackage on the lake imposed certain conditions on Rock Island designed to guarantee fair practices, assure non-discriminatory handling of the traffic of other railroads to and from the lake and guarantee the mutuality of traffic and operating relationships theretofore existing between Pullman and the other roads. Rock Island, however, continued to be the only line providing direct service to the port.
6
The Chicago Regional Port District was created as a municipal corporation by the State of Illinois in 1951. Its purpose was the development of Lake Calumet into a major deep water port facility for both domestic and import-export traffic via the St. Lawrence Seaway. In 1954 the Port District declared by resolution that the public's, as well as the port's, interest required that its trackage be accessible to as many railroads as possible. In 1955 the Port District acquired the lake and some adjoining property from the City of Chicago and began dredging the lake and constructing port facilities at its southern end; it also built 14 miles of railroad yard 'hold' tracks in the port, docks, two 6,500,000-bushel grain elevators, three transit sheds occupying 300,000 square feet of space, a back-up warehouse with 200,000 square feet of space, and streets. These facilities cost $24,000,000 and were paid for by the sale of Port District revenue bonds. By contract with the Port District the Rock Island operates over the trackage of the Port District and also serves the Calumet Harbor Terminals, Inc., a private harbor facility. No other railroads reach the port on their own tracks. The Nickel Plate is the nearest rail facility. As previously noted, it has trackage on the east side of the lake which has been reserved for future development by the Port District. Any railroad wishing to service the port must use the facilities of Rock Island.
II.
THE APPLICATIONS BEFORE THE COMMISSION.
7
On October 22, 1956, the appellants Illinois Central Railroad Company and the Pennsylvania Railroad Company, requested authority from the Commission under the provisions of 49 U.S.C. § 1(18) to construct 1.431 miles of new track that would connect their lines to the present trackage of an affiliate of Illinois Central that passes near Lake Calumet's southwestern shore. Similar applications were subsequently filed by the Chicago South Shore and South Bend Railroad, the Belt Railway Company of Chicago, the Michigan Central Railroad Company, the New York Central Railroad Company and the Indiana Harbor Belt Railroad Company. All of the applicants sought to operate directly to and from the Lake Calumet port, rather than use the facilities of the Rock Island. The latter, as well as the Nickel Plate, requested and was given leave to intervene as were other parties.3 The Rock Island and Nickel Plate were the only objectors, the remaining intervenors all supporting the applications.
8
The original applications of the seven railroads did not specifically request authority from the Commission to operate over the Port District's tracks. It appears that appellants were under the impression that formal Commission authority was not necessary because of the fact that Rock Island was currently operating without it. Nevertheless, the applications covered the entire plan of operations proposed by appellants, including activity within the Port District as well as an unexecuted agreement covering the leasing of the Port District facilities which was attached to the application as an exhibit. This lease was before the Hearing Examiner during the 12-day joint hearing he conducted and was the subject of testimony and consideration. The appellants advised, and the Hearing Examiner concluded, that the appellants sought approval to operate within the Port District, as well as authority for the track extension. Accordingly, the Hearing Examiner recommended to the Commission that the entire project of the appellants be approved.
9
On October 5, 1959, the Commission adopted the Hearing Examiner's recommendations but ruled that the applicants should file supplemental applications covering their proposed operations within the Port District as provided in the proposed lease with the District. The Commission discussed the lease and indicated that it was satisfactory. It did, however, feel that the exclusive right of operation clause should be eliminated. The Commission also ruled that Rock Island's service to Calumet Harbor Terminals, Inc., was not to be disrupted and that every industry located at Lake Calumet Harbor was to have direct rail service, not only from the applicants but the Rock Island and Nickel Plate, if they so elected.
10
In April 1960, the appellants, pursuant to the Commission's requirement, filed supplemental applications for specific authority to operate within the Port District. The proposed lease covered by these applications eliminated the exclusionary provisions to which the Commission had objected. Despite the request of Rock Island and Nickel Plate for a hearing on the new lease the Commission found that the 'technical deficiency' existing in appellants' original applications had been corrected by the filing of their supplemental applications; that the record of the previous hearing was adequate to support approval of the entire proposal of the appellants; and the applications, as supplemented, were approved.
11
In June 1961, however, the appellants and the Port District found it necessary to amend their operating agreement and appellants filed a second supplemental application asking for approval of the same. This agreement modified the one previously approved by the Commission. The old agreement had provided for a 5% annual rental for the use of the Port District's rail facilities based upon the valuation of the latter, but not to exceed $2 per car, loaded or empty, including locomotives. The new agreement provided for a flat charge of $2 for each loaded freight car; it also specifically eliminated industry-owned tracks within the Port District from the agreement; and provided that it did not affect the right of Rock Island to operate in the Port District nor grant any exclusive privilege to the appellants. The Commission, after once again denying appellees' request for a hearing, approved this final agreement on November 26, 1962. The Commission found that the changes merely clarified the rights and responsibilities of the parties. As to the rentals it found that 'rentals generally may be considered reasonable where, as here, the facts of record disclose that nonaffiliated parties, after bargaining at arm's length, have entered into an agreement under which increased service will be offered to the public, all parties to the agreement will benefit financially, and the interveners' ability to continue to serve the public will not be impaired.'4
III.
PROCEEDINGS IN THE DISTRICT COURT
12
The Rock Island and Nickel Plate then filed this suit seeking to enjoin the Commission's orders and the three-judge District Court vacated the orders on the grounds we have stated.
13
The court found that it was faced with two basic problems: (1) whether there was 'substantial evidece' to support the order of the Commission and (2) whether the refusal of the Commission to have a hearing on the lease agreement between the applicants and the Port District denied Rock Island and Nickel Plate due process of law.
14
With respect to the first problem the court found 'substantial support' for some of the 'important findings' of the Commission. However, it found that the record did not 'offer ample support' for certain of its conclusions. These conclusions appeared to have been drawn by the Commission from the prior findings which the court had found to have 'substantial support' in the record.
15
On the supplemental application for authority to operate within the Port District the court held there was insufficient evidence to support the order of approval; that the rental under the final contract was materially different from the provisions of the original plan and bound the Rock Island and Nickel Plate to operate under the same condition without affording them the right of a hearing. By a divided court it ordered a complete rehearing on all issues. We cannot agree with either the findings of the District Court or with its disposition of the case.
IV.
APPLICABLE STANDARD ON REVIEW
16
At the outset the Commission and the appellant railroads contend that the court did not apply the correct standards in reviewing the Commission's action. As we have noted, the court did reject certain 'conclusions' of the Commission, as above indicated, with respect to the public convenience and necessity for additional rail service to Lake Calumet port on the ground that they did not have 'ample support' in the record. The test on judicial review is, of course, whether the action of the Commission is supported by 'substantial evidence' on the record viewed as a whole, 5 U.S.C. § 1009(e)(5). Substantial evidence is '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 (1939). A careful reading of the opinion leads us to conclude that the court was applying the test of substantiality Indeed, at four separate places in the opinion it uses the term 'substantial evidence' as being the necessary requirement. As unfortunate as it is that the 'ample support' language crept into the decision, we do not believe that the court was creating a 'noval formulation' but rather inadvertently used the 'ample support' terminology merely to meet the same language in the dissent referring to the conclusions of the Commission.
17
We have concluded that the court erred in setting aside the conclusions of the Commission. The Act authorizes the issuance of certificates such as the ones sought here when the Commission finds that the future public convenience and necessity will require additional railroad service. 49 U.S.C. § 1(18). This Court has repeatedly held that if a railroad, voluntarily proposing the extension of its lines, can show that its proposal 'either presently or in the reasonably near future will be self-sustaining, or so nearly so as not unduly to burden interstate commerce, the Commission may issue a certificate authorizing the proposed line,' Interstate Commerce Commission v. Oregon-Wash. R. & Nav. Co., 288 U.S. 14, 37, 53 S.Ct. 266, 273, 77 L.Ed. 588 (1933). The Commission, however, 'must be convinced that the proposed venture will not drain the railroad's resources and disable it from performing those duties of public service under which it then rested, with consequent detriment to the public in the matter of service and rates.' Ibid. Also see Texas & P.R. Co. v. Gulf, C. & S. F.R. Co., 270 U.S. 266, 277, 46 S.Ct. 263, 266, 70 L.Ed. 578 (1926); Chesapeake & o. Ry. Co. v. United States, 283 U.S. 35, 42, 51 S.Ct. 337, 339, 75 L.Ed. 824 (1931). Rock Island and Nickel Plate contend that the 'evidence (of appellants) adduced before the Commission was so totally devoid of factual possibility as to be no evidence at all.' As we read it, the evidence as to the future possibilities of the port was somewhat conflicting. The Commission, in keeping with its duty, resolved this conflict. Indeed, the findings of the Commission, which were upheld by the District Court, completely refute the Rock Island and Nickel Plate claims. Among the findings approved by the court5 are the following: The port was 'the major deepwater port facility of the port of Chicago,' with 'unparalleled access' to barge, rail, lake steamer and motor transportation and 'complete access to ocean transportation' in the immediate future, with 71,490,510 tons of water-borne traffic in 1955 and with 'material increases'6 in tonnages predicted for the future from among an estimated 600 to 900 vessels coming to the Chicago port each season, that 'will necessitate a substantially broadened railroad service into and out of the Lake Calumet port'; appellants' combined yard capacity was 61,601 cars, more than 12 times that presently available at the port; appellants' routing would be 'more direct,' entail less handling, expedite shipments and be less expensive than the present operation of Rock Island; and, finally, it was 'imperative * * * that at the very beginning of this new era of development a plan and system for handling th transportation needs of the port be established which will assure the type of service that is expected and will provide for steady progress and expansion.' We believe that these findings, in the light of others not overturned by the District Court, are sufficient to sustain the Commission's action in issuing the certificates.
18
Moreover, we believe that the District Court erred in striking down the conclusions of the Commission. These conclusions7 included: Consideration of the whole record warranted the finding that the applications should be granted; granting them would result in greater rail competition, better service, greater car supply and lower rates for the industries served by the port; appellants would be 'on a par' with the Rock Island in solicitation of grain traffic, and by having control of their cars they could return empties in a fast shuttle service to country elevators without interchange with Rock Island; the time has come when additional freight service is required for the future development of the Port District; better service can be given through elimination of delays, by single-line hauls or more direct hauls; a single trunkline railroad service would be detrimental and a hindrance to the development of the harbor, and, although the port is served by some 100 common carrier trucklines, the Rock Island is the only railroad presently serving the port; the future convenience and necessity must be given 'a higher value' than the present convenience and necessity; the proposed construction either presently or in the reasonably near future is necessary to meet a public need and will be reasonably profitable; and, finally, considering the expansion program at the port and the increased rail traffic to be made available the Commission is 'of the opinion that the additional service * * * is warranted.' As we have said, these conclusions were largely based upon previous Commission findings which the District Court approved. The Commission's function is to draw such reasonable conclusions from its findings as in its discretion are appropriate. As we said in Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966), 'the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.' It is not for the court to strike down conclusions that are reasonably drawn from the evidence and findings in the case. Its duty is to determine whether the evidence supporting the Commission's findings is substantial, Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Having found that there was substantial support in the record for the Commission's findings as to the port's future potential and the necessity of providing competitive rail service at the outset of the port's development, it was not the District Court's function to substitute its own conclusions for those which the Commission had fairly drawn from such findings. Its agreement with the controlling subsidiary findings required the District Court to sustain the Commission's conclusions.
19
The court also erred, we believe, in ordering a new hearing on the issues. It found that the Commission's order issuing a certificate of public convenience and necessity to operate within the Port District was not supported by sufficient evidence and violated due process in that a hearing was not afforded the appellees thereon.
20
As we view the original applications of the appellants they proposed 'to extend their operations to serve the Lake Calumet Harbor District near Chicago, in Cook County, Illinois * * * future industries, elevators, warehouses, docks and piers in the Calumet Harbor Port area.' The prayer was that 'your Commission issue a certificate of public convenience and necessity authorizing the construction and operation for which authority is herein sought.'8 The proceeding came on for a hearing before the Hearing Examiner on September 30, 1957, and counsel for the Rock Island stated for the record that his understanding was 'the issue in this case is that all applications are for the purpose of handling import and export business only to and from the Port District Harbor of Chicago * * *.' (Emphasis supplied.) And counsel for the appellants stated that the plan was 'to handle interstate business to and from the area over which the port has jurisdiction. We have no such limitation at all as to import or export trade.' Likewise, the 'Return to Questionnaire' executed by appellants stated: 'The line proposed to be constructed and operated will receive material revenue from freight traffic to be handled to and from industries, elevators, warehouses, docks, and piers presently operating in the Calumet Harbor Port area, in addition to those facilities to be constructed with the further development of the area.'9 To make it crystal clear paragraph 10 of the same answer to the questionnaire stated:
21
'The Lake Calumet Port District, which the proposed line will serve is currently served by the Chicago, Rock Island and Pacific Railroad Company by virtue of its acquisition of the Pullman Railroad Company, through purchase of capital stock, and lease by the former of the railroad property of the latter approved and authorized by the Commission in Finance Docket No. 16252, Pullman Railroad Company Control, decided November 17, 1949.'
22
The other applications had similar allegations and the other appellants' questionnaire returns contained like statements. Moreover, the answers filed on May 16, 1957, by Rock Island and Pullman to the applications, addressed themselves solely to the proposition that 'applicant's extension of its line of railroad and operations through trackage rights to serve territory (the Port District) heretofore served exclusively and adequately by petitioners cannot be supported by public convenience and necessity, could mean only a duplication of rail service, and would create unsound and uneconomic conditions in transportation.'
23
As we read the record before the Hearing Examiner the case was tried on the theory that the applications included the proposed operations within the Port District. During the presentation of appellants' evidence objection was made to the introduction of the proposed lease between appellants and the Port District on the ground that it was beyond the scope of the application. The Hearing Examiner overruled the objection. The testimony of virtually all of the appellants' witnesses was directed to some phase of the operations of the Port District. It should also be noted that the appellees sought to rebut this testimony in voluminous detail. For example, 40 pages of the record detail the testimony of Mr. R. C. Davidson, a witness for Rock Island. His testimony is devoted to Rock Island's operation in the United States with specific reference to the Port District. It compares Rock Island's operation in the Port District with that proposed by the appellants and answers in detail the statistics of the appellants as to charges, rates, switching problems, etc., involved in operations within the Port District. Page after page of prepared statistics on the costs, profits, etc., of the proposed operation were included in the testimony, together with forecasts as to the impact of the same, if permitted, on Rock Island's operations. Another witness for Rock Island, Professor Marvin L. Fair, testified for some 15 pages on the potential of the Port District. His research was in great depth and included comparisons with other Great Lakes ports; estimated traffic of the Port District, including iron ore, grain, and general cargo; physical conditions of navigation at the port; the effect of tolls; the capacity of the Welland Canal (in the St. Lawrence Seaway) and its impact on the port; the efficiency of the port facilities; established movement of exports and imports; the effect ofpolitical, military, and economic conditions at home and abroad and the adequacy of Rock Island's service.
24
The record establishes beyond a doubt that the appellants were in fact seeking Commission approval of the entire project. Their offering of the unexecuted, proposed contract into evidence is one of many indications of this fact. The Hearing Examiner specifically noted, at the time the contract was received in evidence, that its approval by the Commission was necessary in order for the appellants to serve the Port District as they proposed. It would, indeed, have been a futile act for the appellants to seek and attain approval to extend their lines to the Port District but not be able to enter it!
25
It is true that appellees objected to the introduction of the proposed agreement because they felt, and rightly so, that the application which the appellants had submitted was not technically broad enough for the authority they sought. The Hearing Examiner overruled them and they were obliged to—and did—offer their evidence on the matter. When the question came before the Commission for decision, it ruled that the applications were technically deficient and permitted the parties to correct the same through the filing of supplemental applications. At no time did the Commission find that the proposal to operate within the Port District had not been adequately explored and examined. Rather, a careful reading of the Commission's entire opinion leads us to the opposite conclusion. At every stage of the proceedings before the Hearing Examiner and also before the Commission, operations of the appellants within the Port District were considered an integral part of the overall plan which they submitted.
26
The ruling of the Commission that the supplemental applications should be considered in 'conjunction with the original application,' did not, in our view, deprice appellees of due process of law. When appellees requested a full hearing on the supplemental applications the grounds they alleged were that they were adequately serving the port; that they were prepared to spend further sums of money in the construction of facilities to serve it; that they were entitled to retain the traffic of the Port District; that there was no adequate reason for extension of the railroad lines of appellants into territory heretofore served exclusively by appellees; and that the extension of the railroad lines of appellants was not justified by public convenience and necessity. As the Commission itself found, 'Examination of the record discloses that these are the same arguments and contentions that were set forth in protestants' original briefs, exceptions to the examiner's proposed report, in their petitions for reconsideration, and in their oral arguments.' Illinois Central R. Co. Construction and Trackage, 312 I.C.C. 277, 280.
27
The changes in the proposed lease agreement which the Commission approved without a further hearing involved the removal of the 'exclusive right to operate within the Port' clause, which that document had given the appellants, and the formula for determining the annual rental to be charged by the Port District. As to the former, it can hardly be maintained that this worked a hardship or detriment upon the appellees. The removal of the clause, in fact, made certain that appellees were not precluded from continuing their present operations. As to the rental clause, it will be remembered that the original proposed agreement provided for 5% annual rental based on the value of the land and tracks, but not to exceed $2 per car. This was changed in the first supplemental application to a charge of not to exceed $2 per revenue car or locomotive. The final contract merely provided for a charge of $2 for each revenue car which was much more favorable to the appellants than either of the former clauses. Moreover, the final charge compared favorably to other per-car rates previously approved by the Commission. In the light of these considerations, as well as the fact that appellees were invited and refused to sit in on the negotiation of the contract; had ample opportunity and did present their evidence as to the reasonableness of the charge for the use of Port District property; were, and are, in nowise bound by the contract; and, finally, in view of the insignificance of the changes in the final agreement compared with the former ones, we are led to conclude that appellees were not entitled to another hearing.
28
Appellees also insist that a new hearing be held so that evidence of 'present conditions' could be presented to the Commission rather than 'speculation.' It is true that this case has been pending for 10 years but this, rather than being a reason for holding additional hearings, operates to the contrary. We have concluded that the orders of the Commission were proper under the circumstances. We have found substantial support for its actions. Accordingly, it is our view that this matter be concluded.
29
The judgment is therefore reversed and the case is remanded to the District Court with directions to sustain the Commission's orders.
30
It is so ordered.
31
Reversed and remanded with directions.
32
Mr. Justice BLACK, dissenting.
33
The District Court set aside an order of the Interstate Commerce Commission on the ground that the evidence failed to support its findings of fact. I dissent from the Court's reversal of that holding. In Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 488, 71 S.Ct. 456, 465, it was said that 'Congress has merely made it clear that a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view.' In the case here the District Court found that it could not conscientiously support the Commission's findings and I would affirm its judgment, adhering to the principles so firmly announced in Universal Camera,supra.
1
Illinois Central Railroad Company; Pennsylvania Railroad Company; Chicago South Shore and South Bend Railroad; Belt Railway Company of Chicago; the New York Central Railroad Company; and the Indiana Harbor Belt Railroad Company. The Michigan Central Railroad Company sought additional trackage approval but had not signed a proposed lease with the Port District as the other appellants had.
2
The Nickel Plate has merged into the Norfolk and Western Railway Company since this proceeding began.
3
Others included: the Secretary of Agriculture, the Port District, the Chicago Board of Trade, the Chicago Association of Commerce and Industry, and two private companies operating on the lake, Calumet Harbor Terminals, Inc., and North Pier Terminal Company.
4
317 I.C.C. 502, 505.
5
Norfolk & Western R. Co. v. United States, 241 F.Supp. 974, 977.
6
The testimony was that rail traffic to and from the port in 1960 would be 27,000 carloads which could easily increase to 76,500 carloads in 1962, 115,000 carloads in 1968 and anywhere from 250,000 to 350,000 carloads a year when both sides of the lake are completed. There was also much testimony as to grain shipments. The seven States of Indiana, Illinois, Iowa, Missouri, Kansas, Nebraska and Colorado in 1956 produced 43% of all the wheat and 51% of the corn grown in the United States. The existing disparity in rates will divert much grain from Atlantic and Gulf ports for movement via Chicago and the St. Lawrence Seaway. Service to the port by one railroad does not appear adequate since the railroads serving the midwest grain-producing States terminate in Chicago and have extensive switching and classification yards which could be utilized.
7
241 F.Supp. 974, 979.
8
Application of Illinois Central, Pennsylvania, and Chicago South Shore and South Bend railroads filed October 19, 1956, with the Interstate Commerce Commission.
9
Return of Illinois Central, Pennsylvania, and the Chicago South Shore and South Bend, R. 17.
| 89
|
385 U.S. 94
87 S.Ct. 254
17 L.Ed.2d 192
UNITED STATES et al.v.SASKATCHEWAN MINERALS. GREAT NORTHERN RAILWAY COMPANY et al. v. SASKATCHEWAN MINERALS.
Nos. 525, 526.
Nov. 14, 1966.
Solicitor General Marshall, Assistant Attorney General Turner, Howard E. Shapiro, Robert W. Ginnane, Fritz R. Kahn and Betty Jo Christian, for the United States and others in No. 525.
Charles W. Burkett, W. Harney Wilson, Arthur A. Arsham and Willard P. Scott, for appellants in No. 526.
Wayne W. Wright, for appellee in both cases.
PER CURIAM.
1
These appeals are from an amended judgment of a three-judge district court, 253 F.Supp. 504, which set aside an order of the Interstate Commerce Commission dismissing appellee's complaint, 325 I.C.C. 621, and remanded the case to the Commission 'for further proceedings with instructions to grant relief' to the appellee 'in accordance with the opinion heretofore entered by this court on December 8, 1965, and the Supplemental Memorandum Decision entered by this Court on March 3, 1966.' Accepting the District Court's decision to set aside the Commission's order on the merits, appellants challenge that portion of the judgment which instructs the Commission to grant relief to the appellee and precludes the Commission from reopening the proceedings for the receipt of additional evidence relevant to the question whether the rates challenged by the appellee are in fact unreasonably preferential in violation of § 3(1) of the Interstate Commerce Act, 49 U.S.C. § 3(1). We agree with the appellants that, under the circumstances present here, this restriction is an improper limitation on the Commission's duty to reconsider the entire case. Arrow Transp. Co. v. Cincinnati, N.O. & T.P.R. Co., 379 U.S. 642, 85 S.Ct. 610, 13 L.Ed.2d 550. Accordingly, the judgment of the District Court is vacated and the cases are remanded to the District Court with instructions to enter an order remanding the case to the Commission for further proceedings consistent with the District Court's opinion of December 8, 1965. It is so ordered.
2
Judgment vacated and case remanded.
| 89
|
385 U.S. 76
87 S.Ct. 271
17 L.Ed.2d 175
Ronald R. CICHOS, Petitioner,v.STATE OF INDIANA.
No. 45.
Argued Oct. 19, 1966.
Decided Nov. 14, 1966.
Rehearing Denied Jan. 9, 1967.
See 385 U.S. 1020, 87 S.Ct. 699.
John P. Price, Indianapolis, Ind., for petitioner.
Douglas B. McFadden, Indianapolis, Ind., for respondent, pro hac vice, by special leave of Court.
Mr. Justice WHITE delivered the opinion of the Court.
1
Following petitioner's trial in the Circuit Court for Parke County, Indiana, under a two-count affidavit charging him with reckless homicide and involuntary manslaughter, the jury returned a verdict reciting only that he was guilty of reckless homicide. Petitioner was sentenced to one to five years in prison and was fined $500 plus court costs. He appealed, and the Supreme Court of Indiana granted a new trial. Petitioner was retried on both counts, and the second jury returned the same verdict as the first. He was again sentenced to one to five years in prison but was fined only $100 plus court costs. The Supreme Court of Indiana, 208 N.E.2d 685, affirmed this reckless homicide conviction, rejecting petitioner's contention that his retrial on the involuntary manslaughter count had subjected him to double jeopardy in violation of the Indiana and United States Constitutions.1
2
Asserting that the first jury's silence with respect to the manslaughter charge amounted to an acquittal under Indiana law and that his retrial on that charge placed him twice in jeopardy, compare Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, petitioner, in his petition for certiorari which we granted, presented a single question: Is the Fifth Amendment's prohibition against placing an accused in double jeopardy applicable to state court prosecutions under the Due Process Clause of the Fourteenth Amendment?
3
Because of the following considerations, which have more clearly emerged after full briefing and oral argument, we do not reach the issue posed by the petitioner and dismiss the writ as improvidently granted.
4
1. The Indiana statutes define involuntary manslaughter as the killing of 'any human being * * * involuntarily in the commission of some unlawful act.' Ind.Stat.Ann. § 10—3405 (1956). The statutory penalty is two to 21 years' imprisonment.2 The crime of reckless homicide, created in 1939 as part of Indiana's comprehensive traffic code, is committed by anyone 'who drives a vehicle with reckless disregard for the safety of others and thereby causes the death of another person.' Ind.Stat.Ann. § 47 2001(a) (1965). For this crime, a fine and a prison term of from one to five years are authorized.
5
Recognizing the inherent overlap between these two crimes in cases of vehicular homicide, the Indiana Legislature has provided that
6
'(A) final judgment of conviction of one (1) of them shall be a bar to a prosecution for the other; or if they are joined in separate counts of the same indictment or affidavit, and if there is a conviction for both offenses, a penalty shall be imposed for one (1) offense only.' Ind.Stat.Ann. § 47—2002 (1965).
7
The Indiana courts have also recognized that reckless homicide 'is a form of involuntary manslaughter,' Rogers v. State, 227 Ind. 709, 715, 88 N.E.2d 755, 758. Proof of reckless homicide necessarily establishes an unlawful killing that amounts to involuntary manslaughter. Both crimes require proof of the same elements to sustain a conviction under Indiana law. See Rogers v. State, supra; State v. Beckman, 219 Ind. 176, 37 N.E. 2d 531. Thus, the effect of charging the two crimes in a single affidavit, as occurred in this case, was to give the jury the discretion to set the range of petitioner's sentence at two to 21 years by convicting him of involuntary manslaughter or at one to five years by convicting him of reckless homicide. As the Indiana Supreme Court in the case before us explained, '(t)he offenses here involved are statutorily treated more as one offense with different penalties rather than viewing reckless homicide as an included offense in involuntary manslaughter.' 208 N.E.2d 685, 688.
8
2. Petitioner does not assert that he should not have been tried again for reckless homicide. His only claim is that he should not have been tried again for involuntary manslaughter as well as reckless homicide because the jury's silence at his first trial with respect to involuntary manslaughter was legally an acquittal on this charge.
9
However, the Indiana Supreme Court squarely rejected this interpretation of the first jury's verdict. The court distinguished a long line of Indiana cases which have held that a jury's silence must be deemed an acquittal.3 Because of the identity of the elements of these two crimes, and because the Indiana Supreme Court knew of 'the trial court practice of telling the jury to return a verdict on only one of the charges in view of the limitation on penalty,'4 208 N.E. 2d, at 687, the court concluded that 'a verdict of guilty of reckless homicide does not logically exclude the possibility of such a verdict on the charge of involuntary manslaughter.' 208 N.E.2d, at 688—689. Therefore, '(T)he logic of the principle which states silence is equal to an acquittal is perhaps made inappropriate to charges of these offenses, related to the same unlawful transaction * * *. Rather than treat the silence of the jury in the involuntary manslaughter count in this case as an acquittal, the better result would seem to be to hold that the reckless homicide verdict encompassed the elements of involuntary manslaughter, and that appellant was simply given the lesser penalty.'
10
In the light of the Indiana statutory scheme and the rulings of the Indiana Supreme Court in this case, we cannot accept petitioner's assertions that the first jury acquitted him of the charge of involuntary manslaughter and that the second trial therefore placed him twice in jeopardy. Consequently, we do not reach or decide the question tendered by the petition for certiorari, and the writ is dismissed as improvidently granted. It is so ordered.
11
Writ dismissed.
12
While concurring in the Court's opinion, Mr. Justice BLACK adheres to his dissent in Bartkus v. People of State of Illinois, 359 U.S. 121, 150, 79 S.Ct. 676, 695, 3 L.Ed.2d 684, to the effect that the Fourteenth Amendment makes the double jeopardy provision of the Fifth Amendment applicable to the States.
13
Mr. Justice FORTAS, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS join, dissenting.
14
If this were a federal case, it would, in my view, be covered by Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). In Green, the defendant was not acquitted of the first degree murder charge at the first trial. Just as in the present case, the jury did not return a verdict on that count, but convicted Green on the lesser charges of arson and second degree murder. But this Court held that Green could not be retried on the first degree murder charge. It clearly and unmistakably held that whether Green was 'acquitted' of the greater offense was of no consequence. He had been exposed to jeopardy. See 355 U.S., at 188, 190—191, 78 S.Ct., at 223, 225—226. So, in the present case, it is of no consequence whether the silence of the jury on the involuntary manslaughter count amounted to acquittal. Petitioner was put in jeopardy on that count and cannot again be tried on that charge.
15
The only difference between Green and the present case—except as to the jurisdictions—is that in Green, on the second trial, the defendant was convicted on the aggravated count. In the present case, petitioner was again convicted on the less serious charge. I cannot see that this can justify a difference in result. Petitioner should not have been retried on an affidavit including the more serious charge, which was not involved in the appeal. That charge was dead—beyond resuscitation. Its wrongful inclusion in the affidavit was materially harmful to petitioner. First, it exposed him to the hazards of prosecution and conviction for the more onerous offense. Second, it again gave the prosecution the advantage of offering the jury a choice—a situation which is apt to induce a doubtful jury to find the defendant guilty of the less serious offense rather than to continue the debate as to his innocence. See United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844 (C.A.2d Cir. 1965), cert. denied, Mancusi v. Hetenyi, 383 U.S. 913, 86 S.Ct. 896, 15 L.Ed.2d 667 (1966). And beyond the question of injury to the petioner in this particular case is the fact that the procedure which Indiana used chills the right of appeal. It 'has the necessary effect of unlawfully burdening and penalizing the exercise of the right to seek review of a criminal conviction.' United States v. Ewell, 383 U.S. 116, 130, 86 S.Ct. 773, 781, 15 L.Ed.2d 627 (1966) (dissenting opinion). Defendants in Indiana in this type of case are admonished that if they appeal from a conviction on the less onerous charge they do so at the peril that on the next trial they may be tried, and possibly convicted, on the more serious count.
16
This is a state case. But the Fourteenth Amendment's requirement of due process, in my view, certainly and clearly includes a prohibition of this kind of heads-you-lose, tails-you-lose trial and appellate process. See the dissent of Mr. Justice Black in Bartkus v. People of State of Illinois, 359 U.S. 121, 150, 79 S.Ct. 676, 695, 3 L.Ed.2d 684 (1959); Brock v. State of North Carolina, 344 U.S. 424, 429, 440, 73 S.Ct. 349, 351, 356, 97 L.Ed. 456 (1953) (dissenting opinions of Vinson, C.J., and Douglas, J.).
17
The Second Circuit's views are in accordance with the position stated herein. See United States ex rel. Hetenyi v. Wilkins, supra.
18
I would reverse and remand.
1
'(N)or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.' U.S.Const., Amend. 5. 'No person shall be put in jeopardy twice for the same offense.' Ind.Const., Art. I, § 14.
2
Indiana adopted the common-law crime of involuntary manslaughter early in its history. The crime has traditionally been applied by the Indiana courts to cases of vehicular accidents resulting in death. E.g., Smith v. State, 186 Ind. 252, 115 N.E. 943 (auto accident; State v. Dorsey, 118 Ind. 167, 20 N.E. 777 (railroad accident).
3
This doctrine developed in response to contentions that silence on any count required the setting aside of the entire verdict under the common-law rule that a defendant has an absolute right to a jury verdict on all charges for which he is tried. See Weinzorpflin v. State, 7 Blackf.Ind. 186 (1844). Since a reckless homicide conviction is a statutory bar to further prosecution for involuntary manslaughter, § 47—2002, supra, petitioner cannot be adversely affected by the jury's silence with respect to the involuntary manslaughter count.
4
The judge's charge to the jury in the first trial is not a part of the record in this case.
| 01
|
385 U.S. 92
87 S.Ct. 252
17 L.Ed.2d 189
John P. O'CONNORv.OHIO.
No. 477.
Decided Nov. 14, 1966.
James W. Cowell, Toledo, Ohio (Raymond S. Metzger, Jr., Toledo, Ohio, of counsel), for petitioner.
Harry Friberg, Pros. Atty., and Anthony Pizza, Asst. Pros. Atty., Toledo, Ohio, for respondent.
PER CURIAM.
1
This is the second time petitioner has come before this Court with the claim that the prosecutor's comment upon his failure to testify during his trial for larceny violated the constitutional right to remain silent. In O'Connor v. Ohio, 382 U.S. 286, 86 S.Ct. 445, 15 L.Ed.2d 337, we considered this contention when we granted certiorari, vacated the conviction and remanded the case to the Supreme Court of Ohio for further proceedings in light of our decision in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. Following remand, the Ohio court by a closely divided vote upheld petitioner's conviction solely on the ground that he failed to object to the proscribed comment at his trial and during his first appeal in the state courts. That failure was held to preclude the Ohio appellate courts from considering the claim that petitioner's federal constitutional rights had been infringed.
2
The State does not contest the fact that the prosecutor's remarks violated the constitutional rule announced in Griffin. Moreover, it is clear the prospective application of that rule, announced in Tehan v. U.S. ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453, does not prevent petitioner from relying on Griffin, since his conviction was not final when the decision in Griffin was rendered. Indeed, in Tehan we cited our remand of petitioner's case as evidence that Griffin applied to all convictions which had not become final on the date of the Griffin judgment. 382 U.S., at 409, n. 3, 86 S.Ct., at 461. Thus, the only issue now before us is the permissibility of invoking the Ohio procedural rule to defeat petitioner's meritorious federal claim.
3
We hold that in these circumstances the failure to object in the state courts cannot bar the petitioner from asserting this federal right. Recognition of the States' reliance on former decisions of this Court which Griffin overruled was one of the principal grounds for the prospective application of the rule of that case. See Tehan v. U.S. ex rel. Shott, 382 U.S. 406, 417, 86 S.Ct. 459, 465, 15 L.Ed.2d 453. Defendants can no more be charged with anticipating the Griffin decision than can the States. Petitioner had exhausted his appeals in the Ohio courts and was seeking direct review here when Griffin was handed down. Thus, his failure to object to a practice which Ohio had long allowed cannot strip him of his right to attack the practice following its invalidation by this Court.
4
We therefore grant the petition for certiorari and reverse the judgment of the Supreme Court of Ohio.
5
It is so ordered.
6
Judgment reversed.
| 01
|
385 U.S. 83
87 S.Ct. 265
17 L.Ed.2d 181
UNITED GAS PIPE LINE COMPANY, Petitioner,v.FEDERAL POWER COMMISSION et al.
No. 49.
Argued Oct. 19 and 20, 1966.
Decided Nov. 14, 1966.
Vernon W. Woods, Shereveport, La., for petitioner.
Peter Schiff, Washington, D.C., and Bruce R. Merrill, Houston, Tex., for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
United Gas Pipe Line Company and Continental Oil Company executed a contract effective January 31, 1953, providing for the sale by Continental and the purchase by United of gas produced from the Johnson Bayou Field in the State of Louisiana, at prices stated in the contract. The contract was to run for 10 years and from year to year thereafter unless terminated by either party on 90 days' notice. To effectuate delivery to United's nearby Mud Lake transmission line for transportation of the gas into the Beaumont, Texas, area, Continental constructed several thousand feet of pipeline, separators and storage tanks. United, for its part, constructed a short length of pipeline, a separator, a meter station and valves. United sought, was granted and accepted a certificate of public convenience and necessity authorizing the continued transportation of gas from the Johnson Bayou Field and the construction and operation of the facilities necessary therefor. 14 F.P.C. 582. Likewise, Continental was issued a certificate authorizing the sale of gas to United under the terms of the contract. 15 F.P.C. 1650.
2
In October 1962 Continental elected to terminate the contract at the end of the primary term. Negotiations for a new contract were fruitless. Continental, after refusing United's offer to continue purchasing on a day-to-day basis at the old contract rate, filed a rate increase with the Commission asking for an effective date of January 31, 1963. The Commission accepted the filing over United's protest.1 United, after advance notice to Continental, then ceased purchasing gas from the Johnson Bayou Field on January 31, 1963, and has since refused to purchase gas from that source. Following a petition by Continental, an order to show cause issued by the Commission to United and a full hearing, the Commission found that United, by ceasing to take gas from the Johnson Bayou Field, had abandoned its facilities used for this purpose as well as the service rendered by these facilities, contrary to the provisions of § 7(b) of the Natural Gas Act which forbid such abandonment without the consent of the Commission being first obtained.2 Accordingly, the Commission ordered United to 'renew operation of its Johnson Bayou Field facilities used to purchase gas from Continental' and directed that the purchases by United were to be at Continental's new rate and in volumes consistent with the terms of the contract previously in force. 31 F.P.C. 1079, 1086. The Court of Appeals upheld the Commission's order, 5 Cir., 350 F.2d 689, and we granted certiorari, 383 U.S. 924, 86 S.Ct. 930, 15 L.Ed.2d 844, because the case involved an important question concerning the Commission's jurisdiction under the Natural Gas Act. We affirm.
3
We agree with the Commission and the Court of Appeals that United's refusal to continue receiving gas from the Johnson Bayou Field constituted an abandonment of 'facilities' and a 'service' to which § 7(b) applies. That section places conditions on the abandonment of facilities or of any service rendered thereby. The facilities covered by the section are those 'subject to the jurisdiction of the Commission,' the further identification of which requires resort to other sections of the Act. Section 1(b)3 declares that the provisions of the Act are to apply to: (1) the transportation of natural gas in interstate commerce, (2) the sale in interstate commerce of natural gas for resale for ultimate public consumption and (3) natural gas companies engaged in such transportation or sale. Under § 7(c)4 no natural gas company is permitted to engage in the transportation or sale of natural gas, or to undertake the construction or extension of facilities therefor without a certificate of public convenience and necessity authorizing such acts or operations. Thus the 'facilities subject to the jurisdiction of the Commission' which are reached by the abandonment provisions of § 7(b) are those facilities required for the interstate transportation of natural gas and for the interstate sale of gas for resale to the ultimate consumer. Conversely, it would seem beyond argument that the proscription of abandoning 'any service' rendered by those facilities would include both transportation and sale, the twin functions which subject the facilities to the provisions of the Act.
4
We are convinced that United's Johnson Bayou Field facilities were subject to the jurisdiction of the Commission. They were constructed solely for the purpose of the taking and interstate transportation of Johnson Bayou gas. They could not, therefore, be abandoned without the consent of the Commission and we do not understand United's position in this Court to be otherwise. United, however, insists that there has not in fact been a § 7(b) 'abandonment.' It is true that the Johnson Bayou Field facilities were neither removed nor disconnected. Their use could have been resumed at any time had United so desired. But the physical alteration of facilities is not a sine qua non restricting the Commission's jurisdiction under § 7(b). Here United ceased taking and transporting gas from the Johnson Bayou Field on January 31, 1963, has not taken that gas or used its facilities constructed for that purpose since that time and has no intention of doing so as long as Continental's present rates continue in effect. United, the Commission found, had by its own action rendered its facilities 'operationally dormant for a period of indefinite duration.' 31 F.P.C. 1079, 1083. In addition, the Commission found that its interest went beyond the physical alteration of facilities. 'We have a regulatory responsibility to assure that gas once dedicated to the interstate market will continue to be available to that market so long as the public interest demands * * *.' 31 F.P.C. 1079, 1082. As the instant proceeding unmistakably revealed, the responsibility of the Commission could not adequately be met if it were powerless to assure that facilities 'certificated to transport this gas,' ibid., continued to operate. To hold United's conduct an abandonment within the meaning of § 7(b) is a reasonable interpretation of the Act and we shall not disturb it.
5
The corollary conclusion, inescapably presented on the face of the Act itself, is that the consent of the Commission is necessary before United can cease taking and transporting Johnson Bayou gas, since this is a service United rendered through the facilities it constructed for that very purpose. United, however, contends that the words 'any service' in § 7(b) include only the sale of natural gas, not the taking and transportation of gas from any particular field. In its view it is free at any time to abandon the interstate transportation of gas from the Johnson Bayou Field, and to decide for itself wholly apart from the Commission what gas it will continue to transport interstate. But nothing in the Act, its legislative history or in our cases has been called to our attention which persuasively supports this narrow view or which would justify recognizing the sale of gas as a service but not the preceding transportation without which there would be no sale at all.
6
The Act gives the Commission jurisdiction over interstate transportation of natural gas as a separate and distinct matter, whether the transportation is for hire or for sale and whether the sale is for consumption or resale. FPC v. East Ohio Gas Co., 338 U.S. 464, 70 S.Ct. 266, 94 L.Ed. 268; FPC v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 81 S.Ct. 435, 5 L.Ed.2d 377; Panhandle Eastern Pipe Line Co. v. FPC, 8 Cir., 359 F.2d 675. Here, of course, the transportation is not for hire but for sale, some for consumption and some for resale. What is more, in Sunray Mid-Continent Oil Co. v. FPC, 364 U.S. 137, 149—150, 80 S.Ct. 1392, 1399, 1400, 4 L.Ed.2d 1623, the Court clearly recognized that the term 'service' is not confined to sales but extends to the 'movement of gas in interstate commerce' and that one who engages in either the sale or the transportation of gas is performing a service within the meaning of both §§ 7(e) and 7(b). It could not be more clear that United here abandoned a 'service,' the taking of Johnson Bayou Field gas and its transportation in interstate commerce. The statutory necessity of prior Commission approval, with its underlying findings, cannot be escaped.
7
Even so, United argues that the Act gives the Commission no authority over the purchase of natural gas, and that the Commission therefore exceeded its jurisdiction in ordering United to continue purchasing gas from Continental in amounts specified in an expired contract and at prices set unilaterally by Continental. It is true that the Act does not in so many words grant the same express authority over purchases to the Commission that it does over sales. Neither is there a blanket exemption of Commission jurisdiction over the purchase of gas, and there is express authority over transportation as well as sale. Under § 16, the Commission has the power 'to perform any and all acts, and to * * * issue * * * such orders, rules, and regulations as it may find necessary or appropriate to carry out the provisions of this Act.' 52 Stat. 830, 15 U.S.C. § 717o. Where it is necessary to regulate the purchase of gas in some respects to carry out its expressly granted authority over transportation and sale, the Commission must have the power to do so. In the case before us, there has been a § 7(b) abandonment of facilities or services without Commission consent. It is therefore quite proper for the Commission to order the facilities reactivated and the abandoned service restored, even though the resumption by United of the transportation of gas from the Johnson Bayou Field will entail the purchase of gas from Continental at the legally established price. Undoubtedly, the continued purchase of gas has been ordered but only as an incident to regulating transportation or sale. This is no more than the Act authorizes and no more than United undertook to do when it sought and received certification for the service it sought to perform.5
8
After United had begun to purchase gas from the Johnson Bayou Field in 1953 and to transport it to markets in the State of Texas, United sought a certificate of public convenience and necessity authorizing the construction and use of the facilities it had built and the continued transportation of the Johnson Bayou gas. United then asserted that the public convenience and necessity required the issuance of such a certificate.6 Both the construction and operation of the facilities and the transportation of gas by means thereof were found by the Commission to be required by the public convenience and necessity. United was found 'able and willing * * * to perform the service * * *' for which it had volunteered.7 A certificate was accordingly issued and formally accepted by United. United now wishes to abandon the express service it agreed to perform—the continued transportation of Johnson Bayou gas—without a § 7(b) finding by the Commission 'that the present or future public convenience or necessity permit(s) such abandonment.' This is precisely what the Act forbids.
9
United claims that it does not need the Johnson Bayou gas to serve its customers and that the forced purchase of gas at prices set by Continental and approved by the Commission without regard to the prices at which United under contract or competition is bound to sell the gas deprives it of property without due process of law. In our view, these claims are premature. We do not hold that it would be inappropriate for the Commission to permit abandonment in this case if it is asked to do so and the necessary findings are made. We hold only that United has abandoned facilities and service without the consent of the Commission and that it must reactivate those facilities and restore the service until and unless the statutory consent is obtained. If United now resorts to the Commission, it will have every opportunity to present its economic and constitutional grounds for abandonment.
10
For the reasons herein stated, the judgment of the Court of Appeals is affirmed.
11
It is so ordered.
12
Judgment affirmed.
1
United unsuccessfully petitioned for rehearing of the Commission's order approving the rate increase, 29 F.P.C. 525, but did not seek judicial review of the order.
2
Section 7(b) of the Act provides that 'No natural-gas company shall abandon all or any portion of its facilities subject to the jurisdiction of the Commission, or any service rendered by means of such facilities, without the permission and approval of the Commission first had and obtained, after due hearing, and a finding by the Commission that the available supply of natural gas is depleted to the extent that the continuance of service is unwarranted, or that the present or future public convenience or necessity permit such abandonment.' 52 Stat. 824, 15 U.S.C. § 717f(b).
3
The text of the section provides: 'The provisions of this Act shall apply to the transportation of natural gas in interstate commerce, to the sale in interstate commerce of natural gas for resale for ultimate public consumption for domestic, commercial, industrial, or any other use, and to natural-gas companies engaged in such transportation or sale, but shall not apply to any other transportation or sale of natural gas or to the local distribution of natural gas or to the facilities used for such distribution or to the production or gathering of natural gas.' 52 Stat. 821, 15 U.S.C. § 717(b).
4
The text of the section, in relevant part, provides that 'No natural-gas company or person which will be a natural-gas company upon completion of any proposed construction or extension shall engage in the transportation or sale of natural gas, subject to the jurisdiction of the Commission, or undertake the construction or extension of any facilities therefor, or acquire or operate any such facilities or extensions thereof, unless there is in force with respect to such natural-gas company a certificate of public convenience and necessity issued by the Commission authorizing such acts or operations * * *.' Added by the Act of February 7, 1942, 56 Stat. 83, 15 U.S.C. § 717f(c).
5
What we have said, of course, does not imply that the Commission has the power to compel initial purchases of gas. We reach only the question of the Commission's power under § 7(b) to order reactivation of abandoned facilities and service.
6
United's application for the certificate, docketed September 20, 1954, appears in FPC Docket No. G—2818, United Gas Pipe Line Company.
7
The Commission's complete order appears in Docket G—2818, supra, n. 6; an abbreviated version appears in 14 F.P.C. 582. (Emphasis added.)
| 78
|
385 U.S. 39
87 S.Ct. 242
17 L.Ed.2d 149
Harriett Louise ADDERLEY et al., Petitioners,v.STATE OF FLORIDA.
No. 19.
Argued Oct. 18, 1966.
Decided Nov. 14, 1966.
Rehearing Denied Jan. 9, 1967.
See 385 U.S. 1020, 87 S.Ct. 698.
Richard Yale Feder, Miami, Fla., for petitioners.
William D. Roth, Tallahassee, Fla., for respondent, pro hac vice, by special leave of Court.
Mr. Justice BLACK delivered the opinion of the Court.
1
Petitioners, Harriett Louise Adderley and 31 other persons, were convicted by a jury in a joint trial in the County Judge's Court of Leon County, Florida, on a charge of 'trespass with a malicious and mischievous intent' upon the premises of the county jail contrary to § 821.18 of the Florida statutes set out below.1 Petitioners, apparently all students of the Florida A. & M. University in Tallahassee, had gone from the school to the jail about a mile away, along with many other students, to 'demonstrate' at the mail their protests of arrests of other protesting students the day before, and perhaps to protest more generally against state and local policies and practices of racial segregation, including segregation of the jail. The county sheriff, legal custodian of the jail and jail grounds, tried to persuade the students to leave the jail grounds. When this did not work, he notified them that they must leave, that if they did not leave he would arrest them for trespassing, and that if they resisted he would charge them with that as well. Some of the students left but others, including petitioners, remained and they were arrested. On appeal the convictions were affirmed by the Florida Circuit Court and then by the Florida District Court of Appeal, 175 So.2d 249. That being the highest state court to which they could appeal, petitioners applied to us for certiorari contending that, in view of petitioners' purpose to protest against jail and other segregation policies, their conviction denied them 'rights of free speech, assembly, petition, due process of law and equal protection of the laws as guaranteed by the Fourteenth Amendment to the Constitution of the United States.' On this 'Question Presented' we granted certiorari. 382 U.S. 1023, 86 S.Ct. 643, 15 L.Ed.2d 538. Petitioners present their argument on this question in four separate points, and for convenience we deal with each of their points in the order in which they present them.
I.
2
Petitioners have insisted from the beginning of this case that it is controlled by and must be reversed because of our prior cases of Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697, and Cox v. State of Louisiana, 379 U.S. 536, 559, 85 S.Ct. 453, 476, 13 L.Ed.2d 471, 487. We cannot agree.
3
The Edwards case, like this one, did come up when a number of persons demonstrated on public property against their State's segregation policies. They also sang hymns and danced, as did the demonstrators in this case. But here the analogies to this case end. In Edwards, the demonstrators went to the South Carolina State Capital grounds to protest. In this case they went to the jail. Traditionally, state capitol grounds are open to the public. Jails, built for security purposes, are not. The demonstrators at the South Carolina Capital went in through a public driveway and as they entered they were told by state officials there that they had a right as citizens to go through the State House grounds as long as they were peaceful. Here the demonstrators entered the jail grounds through a driveway used only for jail purposes and without warning to or permission from the sheriff. More importantly, South Carolina sought to prosecute its State Capital demonstrators by charging them with the common-law crime of breach of the peace. This Court in Edwards took pains to point out at length the indefinite, loose, and broad nature of this charge; indeed, this Court pointed out, 372 U.S. at p. 237, 83 S.Ct. at p. 684, that the South Carolina Supreme Court had itself declared that the 'breach of the peace' charge is 'not susceptible of exact definition.' South Carolina's power to prosecute, it was emphasized, 372 U.S. at p. 236, 83 S.Ct. at p. 684 would have been different had the State proceeded under a 'precise and narrowly drawn regulatory statute evincing a legislative judgment that certain specific conduct be limited or proscribed' such as, for example, 'limiting the periods during which the State House grounds were open to the public * * *.' The South Carolina breach-of-the-peace statute was thus struck down as being so broad and all-embracing as to jeopardize speech, press, assembly and petition, under the constitutional doctrine enunciated in Cantwell v. State of Connecticut, 310 U.S. 296, 307—308, 60 S.Ct. 900, 904 905, 84 L.Ed. 1213 and followed in many subsequent cases. And it was on this same ground of vagueness that in Cox v. State of Louisiana, supra, 379 U.S. at 551—552, 85 S.Ct. at 462—463, the Louisiana Breach-of-the-peace law used to prosecute Cox was invalidated.
4
The Florida trespass statute under which these petitioners were charged cannot be challenged on this ground. It is aimed at conduct of one limited kind, that is, for one person or persons to trespass upon the property of another with a malicious and mischievous intent. There is no lack of notice in this law, nothing to entrap or fool the unwary.
5
Petitioners seem to argue that the Florida trespass law is void for vagueness because it requires a trespass to be 'with a malicious and mischievous intent * * *.' But these words do not broaden the scope of trespass so as to make it cover a multitude of types of conduct as does the common-law breach- of- the- peace charge. On the contrary, these words narrow the scope of the offense. The trial court charged the jury as to their meaning and petitioners have not argued that this definition, set out below,2 is not a reasonable and clear definition of the terms. The use of these terms in the statute, instead of contributing to uncertainty and misunderstanding, actually makes its meaning more understandable and clear.
II.
6
Petitioners in this Court invoke the doctrine of abatement announced by this Court in Hamm v. City of Rock Hill, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300. But that holding was that the Civil Rights Act of 1964, 78 Stat. 241, which made it unlawful for places of public accommodation to deny service to any person because of race, effected an abatement of prosecutions of persons for seeking such services that arose prior to the passage of the Act. But this case in no way involves prosecution of petitioners for seeking service in establishments covered by the Act. It involves only an alleged trespass on jail grounds—a trespass which can be prosecuted regardless of the fact that it is the means of protesting segregation of establishments covered by the Act.
III.
7
Petitioners next argue that 'petty criminal statutes may not be used to violate minorities' constitutional rights.' This of course is true but this abstract proposition gets us nowhere in deciding this case.
IV.
8
Petitioners here contend that 'Petitioners' convictions are based on a total lack of relevant evidence.' If true, this would be a denial of due process under Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207, and Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654. Both in the petition for certiorari and in the brief on the merits petitioners state that their summary of the evidence 'does not conflict with the facts contained in the Circuit Court's opinion' which was in effect affirmed by the District Court of Appeal. 175 So.2d 249. That statement is correct and petitioners' summary of facts, as well as that of the Circuit Court, shows an abundance of facts to support the jury's verdict of guilty in this case.
9
In summary both these statements show testimony ample to prove this: Disturbed and upset by the arrest of their schoolmates the day before, a large number of Florida A. & M. students assembled on the school grounds and decided to march down to the county jail. Some apparently wanted to be put in jail too, along with the students already there.3 A group of around 200 marched from the school and arrived at the jail singing and clapping.4 They went directly to the jail-door entrance where they were met by a deputy sheriff, evidently surprised by their arrival. He asked them to move back, claiming they were blocking the entrance to the jail and fearing that they might attempt to enter the jail. They moved back part of the way, where they stood or sat, singing, clapping and dancing on the jail driveway and on an adjacent grassy area upon the jail premises. This particular jail entrance and driveway were not normally used by the public, but by the sheriff's department for transporting prisoners to and from the courts several blocks away and by commercial concerns for servicing the jail. Even after their partial retreat, the demonstrators continued to block vehicular passage over this driveway up to the entrance of the jail.5 Someone called the sheriff who was at the moment apparently conferring with one of the state court judges about incidents connected with prior arrests for demonstrations. When the sheriff returned to the jail, he immediately inquired if all was safe inside the jail and was told it was. He then engaged in a conversation with two of the leaders. He told them that they were trespassing upon jail property and that he would give them 10 minutes to leave or he would arrest them. Neither of the leaders did anything to disperse the crowd, and one of them told the sheriff that they wanted to get arrested. A local minister talked with some of the demonstrators and told them not to enter the jail, because they could not arrest themselves, but just to remain where they were. After about 10 minutes, the sheriff, in a voice loud enough to be heard by all, told the demonstrators that he was the legal custodian of the jail and its premises, that they were trespassing on county property in violation of the law, that they should all leave forthwith or he would arrest them, and that if they attempted to resist arrest, he would charge them with that as a separate offense. Some of the group then left. Others, including all petitioners, did not leave. Some of them sat down. In a few minutes, realizing that the remaining demonstrators had no intention of leaving, the sheriff ordered his deputies to surround those remaining on jail premises and placed them, 107 demonstrators, under arrest. The sheriff unequivocally testified that he did not arrest any persons other than those who were on the jail premises. Of the three petitioners testifying, two insisted that they were arrested before they had a chance to leave, had they wanted to, and one testified that she did not intent to leave. The sheriff again explicitly testified that he did not arrest any person who was attempting to leave.
10
Under the foregoing testimony the jury was authorized to find that the State had proven every essential element of the crime, as it was defined by the state court. That interpretation is, of course, binding on us, leaving only the question of whether conviction of the state offense, thus defined, unconstitutionally deprives petitioners of their rights to freedom of speech, press, assembly or petition. We hold it does not. The sheriff, as jail custodian, had power, as the state courts have here held, to direct that this large crowd of people get off the grounds. There is not a shred of evidence in this record that this power was exercised, or that its exercise was sanctioned by the lower courts, because the sheriff objected to what was being sung or said by the demonstrators or because he disagreed with the objectives of their protest. The record reveals that he objected only to their presence on that part of the jail grounds reserved for jail uses. There is no evidence at all that on any other occasion had similarly large groups of the public been permitted to gather on this portion of the jail grounds for any purpose.6 Nothing in the Constitution of the United States prevents Florida from even-handed enforcement of its general trespass statute against those refusing to obey the sheriff's order to remove themselves from what amounted to the curtilage of the jailhouse. The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated. For this reason there is no merit to the petitioners' argument that they had a constitutional right to stay on the property, over the jail custodian's objections, because this 'area chosen for the peaceful civil rights demonstration was not only 'reasonable' but also particularly appropriate * * *.' Such an argument has as its major unarticulated premise the assumption that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please. That concept of constitutional law was vigorously and forthrightly rejected in two of the cases petitioners rely on, Cox v. State of Louisiana, supra, at 554—555 and 563—564, 85 S.Ct. at 464 and 480.7 We reject it again. The United States Constitution does not forbid a State to control the use of its own property for its own lawful nondiscriminatory purpose.
11
These judgments are affirmed.
12
Affirmed.
13
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE, Mr. Justice BRENNAN, and Mr. Justice FORTAS concur, dissenting.
14
The First Amendment, applicable to the States by reason of the Fourteenth (Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683), provides that 'Congress shall make no law * * * abridging * * * the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.' These rights, along with religion, speech, and press, are preferred rights of the Constitution, made so by reason of that explicit guarantee and what Edmond Cahn in Confronting Injustice (1966) referred to as 'The Firstness of the First Amendment.'1 With all respect, therefore, the Court errs in treating the case as if it were an ordinary trespass case or an ordinary picketing case.
15
The jailhouse, like an executive mansion, a legislative chamber, a courthouse, or the statehouse itself (Edwards v. South Carolina, supra) is one of the seats of governments whether it be the Tower of London, the Bastille, or a small county jail. And when it houses political prisoners or those who many think are unjustly held, it is an obvious center for protest. The right to petition for the redress of grievances has an ancient history2 and is not limited to writing a letter or sending a telegram to a congressman; it is not confined to appearing before the local city council, or writing letters to the President or Governor or Mayor. See NAACP v. Button, 371 U.S. 415, 429—431, 83 S.Ct. 328, 335—336, 9 L.Ed.2d 405. Conventional methods of petitioning may be, and often have been, shut off to large groups of our citizens. Legislators may turn deaf ears; formal complaints may be routed endlessly through a bureaucratic maze; courts may let the wheels of justice grind very slowly. Those who do not control television and radio, those who cannot afford to advertise in newspapers or circulate elaborate pamphlets may have only a more limited type of access to public officials. Their methods should not be condemned as tactics of obstruction and harassment as long as the assembly and petition are peaceable, as these were.
16
There is no question that petitioners had as their purpose a protest against the arrest of Florida A. & M. students for trying to integrate public theatres. The sheriff's testimony indicates that he well understood the purpose of the rally. The petitioners who testified unequivocally stated that the group was protesting the arrests, and state and local policies of segregation, including segregation of the jail. This testimony was not contradicted or even questioned. The fact that no one gave a formal speech, that no elaborate handbills were distributed, and that the group was not laden with signs would seem to be immaterial. Such methods are not the sine qua non of petitioning for the redress of grievances. The group did sing 'freedom' songs. And history shows that a song can be a powerful tool of protest. See Cox v. State of Louisiana, 379 U.S. 536, 546—548, 85 S.Ct. 453, 459—460. There was no violence; no threat of violence; no attempted jail break; no storming of a prison; no plan or plot to do anything but protest. The evidence is uncontradicted that the petitioners' conduct did not upset the jailhouse routine; things went on as they normally would. None of the group entered the jail. Indeed, they moved back from the entrance as they were instructed. There was no shoving, no pushing, no disorder or threat of riot. It is said that some of the group blocked part of the driveway leading to the jail entrance. The chief jailer, to be sure, testified that vehicles would not have been able to use the driveway. Never did the students locate themselves so as to cause interference with persons or vehicles going to or coming from the jail. Indeed, it is undisputed that the sheriff and deputy sheriff, in separate cars, were able to drive up the driveway to the parking places near the entrance and that no one obstructed their path. Further, it is undisputed that the entrance to the jail was not blocked. And whenever the students were requested to move they did so. If there was congestion, the solution was a further request to move to lawns or parking areas, not complete ejection and arrest. The claim is made that a tradesman waited inside the jail because some of the protestants were sitting around and leaning on his truck. The only evidence supporting such a conclusion is the testimony of a deputy sheriff that the tradesman 'came to the door * * * and then did not leave.' His remaining is just as consistent with a desire to satisfy his curiosity as it is with a restraint. Finally, the fact that some of the protestants may have felt their cause so just that they were willing to be arrested for making their protest outside the jail seems wholly irrelevant. A petition is nonetheless a petition, though its futility may make martyrdom attractive.
17
We do violence to the First Amendment when we permit this 'petition for redress of grievances' to be turned into a trespass action. It does not help to analogize this problem to the problem of picketing. Picketing is a form of protest usually directed against private interests. I do not see how rules governing picketing in general are relevant to this express constitutional right to assemble and to petition for redress of grievances. In the first place the jailhouse grounds were not marked with 'NO TRESPASSING!' signs, nor does respondent claim that the public was generally excluded from the grounds. Only the sheriff's fiat transformed lawful conduct into an unlawful trespass. To say that a private owner could have done the same if the rally had taken place on private property is to speak of a different case, as an assembly and a petition for redress of grievances run to government, not to private proprietors.
18
The Court forgets that prior to this day our decisions have drastically limited the application of state statutes inhibiting the right to go peacefully on public property to exercise First Amendment rights. As Mr. Justice Roberts wrote in Hague v. C.I.O., 307 U.S. 496, 515—516, 59 S.Ct. 954, 964, 83 L.Ed. 1423:
19
'* * * Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.'
20
Such was the case of Edwards v. South Carolina, where aggrieved people 'peaceably assembled at the site of the State Government' to express their grievances to the citizens of the State as well as to the legislature. 372 U.S., at 235, 83 S.Ct., at 683. Edwards was in the tradition of Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049, where the public streets were said to be 'immemorially associated' with 'the right of assembly and the opportunities for the communication of thought and the discussion of public questions.' Id., at 574, 61 S.Ct., at 765. When we allow Florida to construe her 'malicious trespass' statute to bar a person from going on property knowing it is not his own and to apply that prohibition to public property, we discard Cox and Edwards. Would the case be any different if, as is common, the demonstration took place outside a building which housed both the jail and the legislative body? I think not.
21
There may be some public places which are so clearly committed to other purposes that their use for the airing of grievances is anomalous. There may be some instances in which assemblies and petitions for redress of grievances are not consistent with other necessary purposes of public property. A noisy meeting may be out of keeping with the serenity of the statehouse or the quiet of the courthouse. No one, for example, would suggest that the Senate gallery is the proper place for a vociferous protest rally. And in other cases it may be necessary to adjust the right to petition for redress of grievances to the other interests inhering in the uses to which the public property is normally put. See Cox v. State of New Hampshire, supra; Poulos v. State of New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105. But this is quite different from saying that all public places are off limits to people with grievances. See Hague v. C.I.O., supra; Cox v. State of New Hampshire, supra; Jamison v. State of Texas, 318 U.S. 413, 415—416, 63 S.Ct. 669, 671, 87 L.Ed. 869; Edwards v. South Carolina, supra. And it is farther yet from saying that the 'custodian' of the public property in his discretion can decide when public places shall be used for the communication of ideas, especially the constitutional right to assemble and petition for redress of grievances. See Hague v. C.I.O. supra; Schneider v. State of New Jersey, 308 U.S. 147, 163 164, 60 S.Ct. 146, 151, 84 L.Ed. 155; Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900; Largent v. State of Texas, 318 U.S. 418, 63 S.Ct. 667, 87 L.Ed. 873; Niemotko v. State of Maryland, 340 U.S. 268, 71 S.Ct. 325, 95 L.Ed. 267; Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176. For to place such discretion in any public official, be he the 'custodian' of the public property or the local police commissioner (cf. Kunz v. People of State of New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280), is to place those who assert their First Amendment rights at his mercy. It gives him the awesome power to decide whose ideas may be expressed and who shall be denied a place to air their claims and petition their government. Such power is out of step with all our decisions prior to today where we have insisted that before a First Amendment right may be curtailed under the guise of a criminal law, any evil that may be collateral to the exercise of the right, must be isolated and defined in a 'narrowly drawn' statute (Cantwell v. State of Connecticut, supra, at 307, 60 S.Ct. at 904) lest the power to control excesses of conduct be used to suppress the constitutional right itself. See Stromberg v. People of State of California, 283 U.S. 359, 369, 51 S.Ct. 532, 535, 75 L.Ed. 1117; Herndon v. Lowry, 301 U.S. 242, 258—259, 57 S.Ct. 732, 739, 81 L.Ed. 1066; Edwards v. South Carolina, supra, 372 U.S. at 238, 83 S.Ct. at 684; N.A.A.C.P. v. Button, supra, 371 U.S. at 433, 83 S.Ct. at 338.
22
That tragic consequence happens today when a trespass law is used to bludgeon those who peacefully exercise a First Amendment right to protest to government against one of the most grievous of all modern oppressions which some of our States are inflicting on our citizens.
23
What we do today disregards the admonition in De Jonge v. State of Oregon, 299 U.S. 353, 364—365, 57 S.Ct. 255, 260, 81 L.Ed. 278:
24
'These (First Amendment) rights may be abused by using speech or press or assembly in order to incite to violence and crime. The people through their Legislatures may protect themselves against that abuse. But the legislative intenvention can find constitutional justification only by dealing with the abuse. The rights themselves must not be curtailed. The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.' Today a trespass law is used to penalize people for exercising a constitutional right. Tomorrow a disorderly conduct statute, a breach-of-the-peace statute, a vagrancy statute will be put to the same end.3 It is said that the sheriff did not make the arrests because of the views which petitioners espoused. That excuse is usually given, as we know from the many cases involving arrests of minority groups for breaches of the peace, unlawful assemblies, and parading without a permit. The charge against William Penn, who preached a nonconformist doctrine in a street in London, was that he caused 'a great concourse and tumult of people' and contempt of the King and 'to the great disturbance of his peace.' 6 How.St.Tr. 951, 955. That was in 1670. In modern times, also, such arrests are usually sought to be justified by some legitimate function of government.4 Yet by allowing these orderly and civilized protests against injustice to be suppressed, we only increase the forces of frustration which the conditions of second-class citizenship are generating amongst us.
1
'Every trespass upon the property of another, committed with a malicious and mischievous intent, the punishment of which is not specially provided for, shall be punished by imprisonment not exceeding three months, or by fine not exceeding one hundred dollars.' Fla.Stat. § 821.18, F.S.A. (1965).
2
"Malicious' means wrongful, you remember back in the original charge, the State has to prove beyond a reasonable doubt there was a malicious and mischievous intent. The word 'malicious' means that the wrongful act shall be done voluntarily, unlawfully and without excuse or justification. The word 'malicious' that is used in these affidavits does not necessarily allege nor require the State to prove that the defendant had actual malice in his mind at the time of the alleged trespass. Another way of stating the definition of 'malicious' is by 'malicious' is meant the act was done knowingly and willfully and without any legal justification.
"Mischievous,' which is also required, means that the alleged trespass shall be inclined to cause petty and trivial trouble, annoyance and vexation to others in order for you to find that the alleged trespass was committed with mischievous intent.' R. 74.
3
The three petitioners who testified insisted that they had not come to the jail for the purpose of being arrested. But both the sheriff and a deputy testified that they heard several of the demonstrators present at the jail loudly proclaim their desire to be arrested. Indeed, this latter version is borne out by the fact that, though assertedly protesting the prior arrests of their fellow students and the city's segregation policies, none of the demonstrators carried any signs and upon arriving at the jail, no speeches or other verbal protests were made.
4
There is no evidence that any attempt was made by law enforcement officers to interfere with this march, or, for that matter, that such officers even knew of the march or its ultimate destination.
5
Although some of the petitioners testified that they had no intention of interfering with vehicular traffic to and from the jail entrance and that they noticed no vehicle trying to enter or leave the driveway, the deputy sheriff testified that it would have been impossible for automobiles to drive up to the jail entrance and that one serviceman, finished with his business in the jail, waited inside because the demonstrators were sitting around and leaning against his truck parked outside. The sheriff testified that the time the demonstrators were there, between 9:30 and 10 Monday morning, was generally a very busy time for using the jail entrance to transport weekend inmates to the courts and for tradesmen to make service calls at the jail.
6
In Cox v. State of Louisiana, supra, 379 U.S. at 558, 85 S.Ct. at 466, the Court emphasized: 'It is, of course, undisputed that appropriate, limited discretion, under properly drawn statutes or ordinances, concerning the time, place, duration, or manner of use of the streets for public assemblies may be vested in administrative officials, provided that such limited discretion is 'exercised with 'uniformity of method of treatment upon the facts of each application, free from improper or inappropriate considerations and from unfair discrimination' * * * (and with) a 'systematic, consistent and just order of treatment, with reference to the convenience of public use of the highways * * *.'"
7
'The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. * * * A group of demonstrators could not insist upon the right to cordon off a street, or entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations.' 379 U.S., at 554—555, 85 S.Ct., at 464.
'The conduct which is the subject of this statute—picketing and parading—is subject to regulation even though intertwined with expression and association. The examples are many of the application by this Court of the principle that certain forms of conduct mixed with speech may be regulated or prohibited.' Id., at 563, 85 S.Ct., at 480.
1
'Where would we really find the principal danger to civil liberty in a republic? Not in the governors as governors, not in the governed as governed, but in the governed unequipped to function as governors. The chief enemies of republican freedom are mental sloth, conformity, bigotry, superstition, credulity, monopoly in the market of ideas, and utter, benighted ignorance. Relying as it does on the consent of the governed, representative government cannot succeed unless the community receives enough information to grasp public issues and make sensible decisions. As lights which may have been enough for the past do not meet the needs of the present, so present lights will not suffice for the more extensive and complex problems of the future. Heretofore public enlightenment may have been only a manifest desideratum; today it constitutes an imperative necessity. The First Amendment, says Justice Black, 'reflects the faith that a good society is not static but advancing, and that the fullest possible interchange of ideas and beliefs is essential to attainment of this goal.' (From Feldman v. United States, 322 U.S. 487, 501, 64 S.Ct. 1082, 1088, 88 L.Ed. 1408 (dissenting opinion).)' Cahn, supra, p. 102.
2
The historical antecedents of the right to petition for the redress of grievances run deep, and strike to the heart of the democratic philosophy. C. 61 of the Magna Carta provided:
'(T)hat if we or our justiciar, or our bailiffs, or any of our servants shall have done wrong in any way toward any one, or shall have transgressed any of the articles of peace or security and the wrong shall have been shown to four barons of the aforesaid twenty-five barons, let those four barons come to us or to our justiciar, if we
are out of the kingdom, laying before us the transgression, and let them ask that we cause that transgression to be corrected without delay.' Sources of Our Liberties 21 (Perry ed. 1959).
The representatives of the people vigorously exercised the right in order to gain the initiative in legislation and a voice in their government. See Pollard, The Evolution of Parliament 329 331 (1964). By 1669 the House of Commons had resolved that 'it is an inherent right of every commoner of England to prepare and present Petitions to the house of commons in case of grievance,' and 'That no court whatsoever hath power to judge or censure any Petition presented * * *.' 4 Parl.Hist.Eng. 432—433 (1669). The Bill of Rights of 1689 provided 'That it is the right of the subjects to petition the king and all commitments and prosecutions for such petitioning are illegal.' Adams & Stephens, Select Documents of English Constitutional History 464. The right to petition for a redress of grievances was early asserted in the Colonies. The Stamp Act Congress of 1765 declared 'That it is the right of the British subjects in these colonies, to petition the king or either house of parliament.' Sources of Our Liberties 271 (Perry ed. 1959). The Declaration and Resolves of the First Continental Congress, adopted October 14, 1774, declared that Americans 'have a right peaceably to assemble, consider their grievances, and petition the king; and that all prosecutions, prohibitory proclamations, and commitments for the same, are illegal.' Id., at 288. The Declaration of Independence assigned as one of the reasons for the break from England the fact that 'Our repeated Petitions have been answered only by repeated injury.' The constitutions of four of the original States specifically guaranteed the right. Mass.Const., Art. 19 (1780); Pa.Const., Art. IX, § 20 (1790); N.H.Const., Art. 32 (1784); N.C.Const., Art. 18 (1776).
3
In 1932 over 28,000 veterans demanding a bonus marched on Washington, D.C., paraded the streets, and camped mostly in parks and other public lands in the District, Virginia, and Maryland only to be routed by the Army. See Waters, B.E.F. (1933).
4
See, e.g., De Jonge v. State of Oregon, 299 U.S. 353, 57 S.Ct. 255; Feiner v. People of State of New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 267; Niemotko v. State of Maryland, 340 U.S. 268, 71 S.Ct. 325, 95 L.Ed. 267; Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680; Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453; Shuttlesworth v. City of Birmingham, 382 U.S. 87. The same is true of other measures which inhibit First Amendment rights. See, e.g., N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480; Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231; N.A.A.C.P. v. Button, 371 U.S. 415, 83 S.Ct. 328. If the invalidity of regulations and official conduct curtailing First Amendment rights turned on an unequivocal showing that the measure was intended to inhibit the rights, protection would be sorely lacking. It is not the intent or purpose of the measure but its effect on First Amendment rights which is crucial.
| 23
|
385 U.S. 99
87 S.Ct. 274
17 L.Ed.2d 197
BANK OF MARIN, Petitioner,v.John M. ENGLAND, Trustee in Bankruptcy.
No. 63.
Argued Oct. 20, 1966.
Decided Nov. 21, 1966.
Edgar B. Washburn, San Rafael, Cal., for petitioner.
Thomas B. Donovan, San Francisco, Cal., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
The question presented by this case is whether a bank which honored checks of a depositor drawn before its bankruptcy but presented for payment after it had filed a voluntary petition in bankruptcy, is liable to the trustee for the amount of the checks paid where the bank had no knowledge or notice of the proceeding. The trustee applied to the referee for a turnover order requiring petitioner bank to pay to the trustee the amount of the checks and in the alternative asking the same relief against the payee. The referee determined that petitioner and the payee were jointly liable to the trustee. The District Court affirmed. Only petitioner appealed and the Court of Appeals affirmed the District Court. 352 F.2d 186. We granted certiorari because of the importance of the question presented. Cf. Rosenthal v. Guaranty Bank & Trust Co., D.C., 139 F.Supp. 730; Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865.
I.
2
We were advised on oral argument that the joint judgment rendered against petitioner, the bank, and the payee of the checks was paid in full by the payee and that at present respondent's sole financial interest in this litigation is protection against imposition of costs under our Rule 57. It is therefore suggested that the case is moot. We do not agree. Whatever might be the result if costs alone were involved (cf. Heitmuller v. Stokes, 256 U.S. 359, 362, 41 S.Ct. 522, 523, 65 L.Ed. 990) this case should not be dismissed. We are advised that the payee has paid the joint judgment and has filed with the bankruptcy court and served on petitioner a demand for contribution from it respecting sums paid in satisfaction of the judgment. Thus petitioner is still subject to a suit because of the original judgment as to its liability. We would, therefore, strain the concepts of mootness if we required petitioner to start all over again when the payee sues it for contribution.
II.
3
Section 70a of the Bankruptcy Act, 52 Stat. 879, 11 U.S.C. § 110(a), provides that a trustee in bankruptcy is vested 'by operation of law' with the title of the bankrupt as of the date of the filing of the petition to described kinds of property 'including rights of action.' § 70a(5). But we do not agree with the Court of Appeals that the bankrupt's checking accounts are instantly frozen in the absence of knowledge or notice of the bankruptcy on the part of the drawee. The trustee succeeds only to such rights as the bankrupt possessed; and the trustee is subject to all claims and defenses which might have been asserted against the bankrupt but for the filing of the petition. See Zartman v. First National Bank of Waterloo, 216 U.S. 134, 138, 30 S.Ct. 368, 369, 54 L.Ed. 418. The relationship of bank and depositor is that of debtor and creditor, founded upon contract. The bank has the right and duty under that contract to honor checks of its depositor properly drawn and presented (Allen v. Bank of America, 58 Cal.App.2d 124, 127, 136 P.2d 345, 347; Weaver v. Bank of America, 59 Cal.2d 428, 431, 30 Cal.Rptr. 4, 380 P.2d 644, 647; and see Anderson National Bank v. Luckett, 321 U.S. 233, 64 S.Ct. 599, 88 L.Ed. 692), absent a revocation that gives the bank notice prior to the time the checks are accepted or paid by the bank. See Hiroshima v. Bank of Italy, 78 Cal.App. 362, 369, 248 P. 947, 950. The Court of Appeals held that the bankruptcy of a drawer operates without more as a revocation of the drawee's authority. 352 F.2d, at 191. But that doctrine is a harsh one that runs against the grain or our decisions requiring notice before a person is deprived of property (Mullane v. Central Hanover Bank & Trust Co., supra, 339 U.S. at 314—318, 70 S.Ct. at 657—659; Walker v. City of Hutchinson, 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178; Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255), a principle that has been recognized and applied in proceedings under the Bankruptcy Act. City of New York v. New York, N.H. & H.R. Co., 344 U.S. 293, 296—297, 73 S.Ct. 299, 301, 97 L.Ed. 333. The kind of notice required is one 'reasonably calculated, under all the circumstances, to apprise the interested parties of the pendency of the action.' Mullane v. Central Hanover Bank & Trust Co., supra, 339 U.S. at 314, 70 S.Ct. at 657. We cannot say that the act of filing a voluntary petition in bankruptcy per se is reasonably calculated to put the bank on notice. Absent revocation by the drawer or his trustee or absent knowledge or notice of the bankruptcy by the bank, the contract between the bank and the drawer remains unaffected by the bankruptcy and the right and duty of the bank to pay duly presented checks remain as before. In such circumstances the trustee acquires no rights in the checking account greater than the bankrupt himself.
4
Section 70d(5), 52 Stat. 882, 11 U.S.C. § 110(d)(5), provides, with exceptions not relevant here, that 'no transfer by or in behalf of the bankrupt after the date of bankruptcy shall be valid against the trustee.' And in case of a voluntary petition (with exceptions not material here) the filing operates as an adjudication. § 18f, 73 Stat. 109, 11 U.S.C. § 41(f). It is therefore argued with force that payment by the drawee of a drawer bankrupt's checks after the date of that filing is a 'transfer' within the meaning of § 70d(5). Yet we do not read these statutory words with the ease of a computer. There is an overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction. Section 2a, 52 Stat. 842, 11 U.S.C. § 11(a); Pepper v. Litton, 308 U.S. 295, 304—305, 60 S.Ct. 238, 244—245, 84 L.Ed. 281; Securities & Exchange Commission v. U.S. Realty & Imp. Co., 310 U.S. 434, 455, 60 S.Ct. 1044, 1053, 84 L.Ed. 1293. We have said enough to indicate why it would be inequitable to hold liable a drawee who pays checks of the bankrupt duly drawn but presented after bankruptcy, where no actual revocation of its authority has been made and it has no notice or knowledge of the bankruptcy. The force of §§ 70d(5) and 18f can be maintained by imposing liability on the payee of the checks if he has received a voidable preference or other voidable transfer. The payee is a creditor of the bankrupt, and to make him reimburse the trustee is only to deprive him of preferential treatment and to restore him to the category of a general creditor. To permit the trustee under these circumstances to obtain recovery only against the party that benefited from the transaction is to do equity.
5
Reversed.
6
Mr. Justice HARLAN, dissenting.
7
The Court, in its haste to alleviate an indisputable inequity to the bank, disregards, in my opinion, both the proper principles of statutory construction and the most permanent interests of bankruptcy administration. I must dissent.1
8
The Act itself is unambiguous. Section 70a vests title to the bankrupt's property in the trustee 'as of the date of the filing of the petition.' 52 Stat. 879, 11 U.S.C. § 110(a). Section 70d nonetheless sustains bona fide transfers of the property made after filing and 'before adjudication or before a receiver takes possession * * * whichever first occurs * * *.' 52 Stat. 881, 11 U.S.C. § 110(d). Transactions excluded from the shelter of § 70d are, so far as pertinent, within § 70d(5), which provides that 'no (such) transfer by or in behalf of the bankrupt * * * shall be valid against the trustee * * *.' 52 Stat. 882, 11 U.S.C. § 110(d)(5). The adjudication of voluntary petitions results by operation of law from filing. § 18f, 73 Stat. 109, 11 U.S.C. § 41(f).
9
In the situation before us, the remaining issue is accordingly whether this transfer occurred before or after September 26, the day on which Seafoods filed its petition in bankruptcy and was perforce adjudicated bankrupt. I do not understand petitioner to contend, or the Court to suggest that this occurred at a time other than presentment of the checks, October 2. Given the law of California, by which a check is not a pro tanto transfer of the drawer's rights until presentment, I cannot see that another moment is possible. California Civil Code § 3265e; California Commercial Code § 3409. In sum, I find it unavoidable that the Act's plain words hold the bank liable to the trustee for the value of its payment of Seafoods' behalf.2
10
I do not suggest that this Court should confine its attention to the unadorned terms of the Bankruptcy Act. Nonetheless, where Congress has pointed so unmistakably in one direction, prudence and simple propriety surely require that we examine carefully the impulses which beckon us to another. The Court explains its resolution of this case by two apparently alternative contentions. I am unpersuaded that either permits us to circumvent the Act's demands.
11
The Court first intimates, without expressly deciding, that the bank is shielded by its contractual right to a seasonable revocation of its duty to honor checks drawn upon it. The Court vouches for this the doctrine that a trustee in bankruptcy takes rights no wider or more complete than his bankrupt had. It is doubtless true that a trustee is not a bona fide purchaser or encumbrancer, and that he ordinarily assumes the bankrupt's property subject to existing claims, liens, and equities. Hewit v. Berlin Machine Works, 194 U.S. 296, 24 S.Ct. 690, 48 L.Ed. 986. Unfortunately, these maxims scarcely suffice to decide this case. They are interstitial rules, valid no further than the Act's positive requirements permit. First National Bank of Baltimore v. Staake, 202 U.S. 141, 26 S.Ct. 580, 4 Collier, Bankruptcy 70.04, at 954.2. The Act in several respects clothes the trustee in powers denied to his bankrupt: A trustee may thus avoid, although his bankrupt may not, transactions deemed fraudulent under the Act, liens obtained and preferential transfers completed within four months of bankruptcy, and statutory liens within the prohibition of § 67c(2). 4 Collier, Bankruptcy 70.04, at 957.
12
The Court does not assert that this transfer is protected by § 70d. I understand it instead to concede that, equitable considerations aside, the bank's payment is invalid against the trustee. I must conclude that the Court has reasoned that a contractual defense retained against the bankrupt suffices to preclude use of a power expressly conferred upon the trustee. If this is the Court's meaning, it has traversed both logic and authority, and has enasculated the powers given to trustees under the Act.
13
The Court's principal contention seems to be that equitable considerations oblige it to release the bank from liability. Its premise plainly in that equity is here a solvent to which we may appropriately resort; I am unable to accept that premise. This is not a case in which the statute is imprecise. Nor is it a case in which the legislature's intentions have been misshapen by the statute's words; even a cursory examination of the history of § 70 will evidence that its terms faithfully reflect Congress' purposes.
14
The Act of 1898 vested title to the bankrupt's property in the trustee at adjudication, but contained nothing to prevent its dissipation in the interval after filing.3 The courts were therefore left free to devise protective rules to reconcile the competing interests of the estate and of those who dealt with the bankrupt in this period. The fulcrum of those rules was the proposition that a 'petition (in bankruptcy) is a caveat to all the world, and in effect an attachment and injunction.' Mueller v. Nugent, 184 U.S. 1, 14, 22 S.Ct. 269, 275, 46 L.Ed. 405. The courts softened its severity by a series of exceptions, either employing or distinguishing it as equity or convenience suggested. The result, as a principal draftsman of the Chandler Act reforms described it, was that 'no consistent theory of protected transactions has been developed,' and the situation was 'conducive to confusion and uncertainty, with potentialities for argument, 'bluffing,' litigation, expense and delay.'4 The law consisted essentially of 'nebulous vagarities.'5
15
The Chandler Act stemmed chiefly from a sustained investigation of these and other problems by the National Bankruptcy Conference.6 Its members were the Act's principal draftsmen. The revisions they made to § 70 entirely restructured the basis both of the trustee's title and of the protection given to transactions which occur after filing. Their purpose, as one of them explained to the Chandler subcommittee, was to provide 'a clear statutory basis' to the issues of title and protected transactions, in 'lieu of a crazy quilt of contradictory judicial statements.'7 The effect of their revisions was to define 'the full extent to which bona fide transactions with the bankrupt, after bankruptcy, will be protected.'8
16
Adjudication and receivership were plainly expected to mark the perimeters of this protection. Various factors determined this choice. First, none of the several exceptions to Mueller v. Nugent reached transactions which occurred after adjudication.9 More important, once the draftsmen had elected to vest title in the trustee from filing, they were chiefly anxious to shield debtors from the consequences of unwarranted involuntary petitions.10 They feared that such a petition might ruin a debtor by inducing others to avoid dealings with him. Section 70d was expected to immunize bona fide transactions after filing, and thus to encourage dealings with the solvent debtor. There is no need for such protection after adjudication. Finally, adjudication and receivership signal the beginning of bankruptcy administration, and they are therefore both appropriate moments at which to forbid all further meddling with the estate.11
17
It is equally plain that the protection offered by § 70d must have been intended principally for involuntary proceedings. There are several indications of this. Most important, the hazard to which the section was chiefly directed, the consequences of an unwarranted petition upon a debtor's credit, is entirely absent from voluntary proceedings. Thus, the discussion of this problem before the Chandler subcommittee was explicitly confined to involuntary petitions.12 Further, the protection offered by § 63b, which closely supplements § 70d, extends only to involuntary proceedings.13 Finally, the draftsmen must surely have known that the adjudication of voluntary petitions ordinarily followed quickly and routinely after filing.14 It was certainly not unknown for adjudication to occur on the day of filing.15 The draftsmen could only have intended that any protection given in voluntary proceedings by § 70d be fleeting and minimal.16
18
In short, § 70 was tailored to provide carefully measured protection to bona fide transfers. It was intended to preclude further confusion and uncertainty. There is every indication that its terms faithfully reflect its purposes.
19
I fully sympathize with the discomfort of the bank's position, but I cannot escape the impact of what Congress has done.17 The Court has not found s 70 constitutionally impermissible.18 It has simply measured the statute by the standard of its own conscience, and concluded that equity requires a result which the statute forbids. I had thought it well settled that equity may supplement, but may never supersede, the Act. 1 Collier Bankruptcy 2.09, at 171—172. The Act's language is neither imprecise nor infelicitous; I can therefore see no room for the interposition of equity.
20
More important, the Court today permits the dilution of the Chandler amendments to § 70. The Court's disposition of this case may be taken to suggest that whenever equity is thought strongly to demand relief from the strictures of the Act, further exceptions may be appropriately created to the statutory scheme. I fear that the Court may have set in motion once more the protracted process which before 1938 resulted in 'confusion and uncertainty,' 'litigation, expense and delay.' If so, the Chandler amendments will have had no more permanent result than to wipe the judicial slate momentarily clean.
21
I would affirm the judgment of the Court of Appeals.
22
Mr. Justice FORTAS.
23
I would vacate the judgment. I believe that we do not have before us a case or controversy between the parties of record.
24
Respondent, the trustee in bankruptcy, has no substantial stake in the outcome of this litigation and is not an adversary in the usual sense. On February 24, 1964, the referee in bankruptcy ruled that both the petitioner bank and the payee on the bankrupt's checks were liable to the trustee. On May 19, 1964, the payee paid the trustee in full and has not been a party to this litigation since that time. Having received full payment, the trustee has no interest in the litigation except professional curiosity as to the question of law—and he so apprised the District Court, the Court of Appeals, and this Court. See Brief for Respondent, p. 2. See also Petition for Certiorari, p. 4. Nevertheless, the bank, also eager for an answer to this intriguing legal problem and facing a claim from the payee for contribution, continued the litigation against the trustee, and the trustee obligingly went along. The respondent trustee's only financial interest is admittedly confined to the question of court costs,1 incurred as a volunteer.
25
There are two reasons of substance why the Court should not, in this case, decide the important statutory question presented. First, this is not an adversary proceeding, and has not been one since respondent received full payment in 1964. It is basic to our adversary system to insist that the courts have the benefit of the contentions of opposing parties who have a material, and not merely an abstract, interest in the conflict. Adverse parties adverse in reality and not merely in positions taken—are absolutely necessary. See, e.g., Muskrat v. United States, 219 U.S. 346, 361—363, 31 S.Ct. 250, 255—256, 55 L.Ed. 246 (1911); People of State of California v. San Pablo & Tulare R. Co., 149 U.S. 308, 313—314, 13 S.Ct. 876, 878, 37 L.Ed. 747 (1893); South Spring Hill Gold Min. Co. v. Amador Gold Co., 145 U.S. 300, 301 302, 12 S.Ct. 921, 36 L.Ed. 712 (1892). Cf. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 242—242, 57 S.Ct. 461, 463—464, 81 L.Ed. 617 (1937) (Hughes, C.J.); Fairchild v. Hughes, 258 U.S. 126, 129 130, 42 S.Ct. 274, 275, 66 L.Ed. 499 (1922) (Brandeis, J.).
26
Second, this is a peculiar case in which to depart from the settled rule. The effect of the decision today is to strip the payee of its asserted right to contribution, although the payee is not before this Court, and was not before the Court of Appeals or the District Court. The question of the relative rights and obligations of the payee and the bank ought to be resolved in litigation in which both participate.2 Cf. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). The impact of today's decision upon a party not present confirms the wisdom of the rule 'that when there is no actual controversy, involving real and substantial rights, between the parties to the record, the case will be dismissed.' Little v. Bowers, 134 U.S. 547, 557, 10 S.Ct. 620, 622, 33 L.Ed. 1016. See also Lord v. Veazie, 8 How. 251, 255, 12 L.Ed. 1067.
27
I would vacate the judgment below and remand with direction to dismiss. See Mechling Barge Lines v. United States, 368 U.S. 324, 329—330, 82 S.Ct. 337, 340—341, 7 L.Ed.2d 317 (1961); United States v. Munsingwear, 340 U.S. 36, 39—41, 71 S.Ct. 104, 106—107, 95 L.Ed. 36 (1950).
1
Like the Court, I believe that this case is not moot. In addition to what has been said by the majority, compare Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230, and Aeronautical Industrial Dist. Lodge v. Campbell, 337 U.S. 521, 69 S.Ct. 1287, 93 L.Ed. 1513.
2
It is true that the negotiability proviso to § 70d(5) has once been held to protect a bank in analogous circumstances. Rosenthal v. Guaranty Bank & Trust Co., D.C., 139 F.Supp. 730. The proviso's legislative history throws little light on its intended scope. It appears inapplicable here. First, presentment is not strictly a negotiation. Second and more important, other constructions are more consonant with the balance of § 70d. Cf. 70 Harv.L.Rev. 548, 550. 4 Collier, Bankruptcy 70.68, at 1502, n. 3 (14th ed. 1964). I do not understand the Court to rely upon the proviso.
3
This Court had held that despite the cleavage at adjudication, the trustee took the title as it was at filing. Everett v. Judson, 228 U.S. 474, 33 S.Ct. 568, 57 L.Ed. 927. The situation is summarized in McLaughlin, Aspects of the Chandler Bill to Amend the Bankruptcy Act, 4 U.Chi.L.Rev. 369, 383.
4
McLaughlin, Amendment of the Bankruptcy Act (pts. 1 & 2), 40 Harv.L.Rev. 341, 583, at 615. The same conclusions are reached by Weinstein. The Bankruptcy Law of 1938, at 161.
5
4 Collier, Bankruptcy 70.66, at 1495.
6
A brief history of the Conference's work may be found in McLaughlin, 4 U.Chi.L.Rev., at 375.
7
Hearing before the House Committee on the Judiciary on H.R. 6439, 75th Cong., 1st Sess., 212. Professor McLaughlin quoted from his article in 40 Harv.L.Rev. 341. He subsequently acknowledged that § 70 would permit an area in which the courts could continue to balance the competing interests of the parties. Ibid. In light of the importance attached to adjudication at a line of cleavage, and the comparative insignificance intended for § 70d in voluntary proceedings, see infra, I do not believe that this acknowledgment can be taken to reach this case.
8
4 Collier, Bankruptcy 70.67, at 1500.
9
4 Collier, Bankruptcy 70.66, at 1498. In the one apparent exception, Jones v. Springer, 226 U.S. 148, 33 S.Ct. 64, 57 L.Ed. 161, a dredge had been placed in the hands of a receiver under an attachment levied before filing. The Court concluded that this sufficed to avoid the ordinary limitations imposed by adjudication.
10
Hearing before the House Committee on the Judiciary on H.R. 6439, 75th Cong., 1st Sess., 211. Professor McLaughlin described this to the subcommittee as 'the next most pressing problem.' He concluded that '(w)e have put in a provision (70d) to cover that (the problem of unwarranted petitions).' His explanation to the subcommittee of § 70d was based entirely on this problem. There is of course evidence that the draftsmen also expected to alleviate unfairness which § 70a might otherwise produce. See Analysis of H.R. 12889, House Committee on the Judiciary, 74th Cong., 2d Sess., 230 (Comm.Print 1936).
11
MacLachlan, Handbook of the Law of Bankruptcy 346.
12
Hearing before the House Committee on the Judiciary on H.R. 6439, 75th Cong., 1st Sess., 211.
13
52 Stat. 873, 11 U.S.C. § 103(b). Section 63b provides that 'In the interval after the filing of an involuntary petition and before the appointment of a receiver or the adjudication, whichever first occurs, a claim arising in favor of a creditor by reason of property transferred or services rendered by the creditor to the bankrupt for the benefit of the estate shall be provable to the extent of the value of such property or services.'
14
MacLachlan, Handbook of the Law of Bankruptcy 40.
15
See, e.g., New York County National Bank v. Massey, 192 U.S. 138, 24 S.Ct. 199, 48 L.Ed. 380.
16
Further, the 1959 amendments to § 18, by which adjudication results by operation of law from filing, were adopted upon the recommendation of the Judicial Conference and its Committee on Bankruptcy Administration. Annual Report of the Proceedings of the Judicial Conference, 1958, p. 28. The bill received the endorsement of the National Bankruptcy Conference. H.R.Rep. No. 241, 86th Cong., 1st Sess., 2. It therefore seems quite improbable that the 1959 amendments could have inadvertently excluded voluntary proceedings from the scope of § 70d.
17
Judge Soper's reasoning in Lake v. New York Life Insurance Co., 4 Cir., 218 F.2d 394, 399, seems entirely persuasive: 'Whether the line which has been drawn is the best possible solution of the problem is not for the courts to say. The line has in fact been drawn by competent authority and it is no longer necessary for the courts to make the attempt, which has not been conspicuously successful in the past, to decide cases on the facts as they arise * * *.' See also Kohn v. Myers, 2 Cir., 266 F.2d 353.
18
I cannot in any event accept petitioner's contention that these provisions have denied it due process. In exercise of its express constitutional authority over bankruptcy, Art. I, § 8, Congress has attached great importance to swift and efficient administration; to this purpose it devised a statutory scheme by which it balanced the competing rights of the interested parties. Congress' purposes are permissible, and the scheme it has adopted is reasonably calculated to achieve those purposes. In this context I cannot say that the Constitution requires that all whose rights may be reached by bankruptcy proceedings must first have actual notice of them. Cf. Hanover National Bank of City of New York v. Moyses, 186 U.S. 181, 22 S.Ct. 857, 46 L.Ed. 1113.
1
An unbroken line of cases establishes the rule that controversy as to costs alone does not salvage an otherwise moot case. See, e.g., Walling v. James V. Reuter Co., 321 U.S. 671, 677, 64 S.Ct. 826, 829, 88 L.Ed. 1001 (1944); United States v. Anchor Coal Co., 279 U.S. 812, 49 S.Ct. 262, 73 L.Ed. 971 (1929); Alejandrino v. Quezon, 271 U.S. 528, 533—536, 46 S.Ct. 600, 601 602, 70 L.Ed. 1071 (1926); Brownlow v. Schwartz, 261 U.S. 216, 43 S.Ct. 263, 67 L.Ed. 620 (1923); Heitmuller v. Stokes, 256 U.S. 359, 362—363, 41 S.Ct. 522, 523—524, 65 L.Ed. 990 (1921); Robertson & Kirkham, Jurisdiction of the Supreme Court of the United States § 274 (Wolfson & Kurland ed.); 6 Moore, Federal Practice 54.70(5), at 1311 (2d ed. 1956).
2
Upon vacation of the judgment below, the bank would be free to relitigate with the payee the question of its own liability, since the bank was in no respect responsible for the manner in which this case became a nonadversary proceeding. See United States v. Munsingwear, 340 U.S. 36, 39—40 & note 1, 71 S.Ct. 104, 106—107, 95 L.Ed. 36 (1950).
| 78
|
385 U.S. 188
87 S.Ct. 357
17 L.Ed.2d 286
Robert D. WATKINS, Appellant,v.J. F. CONWAY.
No. 65.
Argued Nov. 9, 1966.
Decided Dec. 5, 1966.
William G. Vance, Atlanta, Ga., for appellant.
Martin McFarland, Atlanta, Ga., for appellee.
PER CURIAM.
1
This litigation began when appellant Watkins brought a tort action against Conway in a circuit court of Florida. On October 5, 1955, that court rendered a $25,000 judgment for appellant. Five years and one day later, appellant sued upon this judgment in a superior court of Georgia. Appellee raised § 3—701 of the Georgia Code as a bar to the proceeding:
2
'Suits upon foreign judgments.—All suits upon judgments obtained out of this State shall be brought within five years after such judgments shall have been obtained.' The Georgia trial court gave summary judgment for appellee. In so doing, it rejected appellant's contention that § 3—701, when read against the longer limitation period on domestic judgments set forth in Ga.Code §§ 110—1001, 110—1002 (1935), was inconsistent with the Full Faith and Credit and Equal Protection Clauses of the Federal Constitution. The Georgia Supreme Court affirmed, also rejecting appellant's constitutional challenge to § 3—701. 221 Ga. 374, 144 S.E.2d 721 (1965). We noted probable jurisdiction under 28 U.S.C. § 1257(2). 383 U.S. 941, 86 S.Ct. 1200, 16 L.Ed.2d 205 (1966).
3
Although appellant lays his claim under two constitutional provisions, in reality his complaint is simply that Georgia has drawn an impermissible distinction between foreign and domestic judgments. He argues that the statute is understandable solely as a reflection of Georgia's desire to handicap out-of-state judgment creditors. If appellant's analysis of the purpose and effect of the statute were correct, we might well agree that it violates the Federal Constitution. For the decisions of the Court which appellee relies upon do not justify the discriminatory application of a statute of limitations to foreign actions.1
4
But the interpretation which the Georgia courts have given § 3—701 convinces us that appellant has misconstrued it. The statute bars suits on foreign judgments only if the plaintiff cannot revive his judgment in the State where it was originally obtained. For the relevant date in applying § 3—701 is not the date of the original judgment, but rather it is the date of the latest revival of the judgment. Fagan v. Bently, 32 Ga. 534 (1861); Baty v. Holston, 108 Ga.App. 359, 133 S.E.2d 107 (1963). In the case at bar, for example, all appellant need do is return to Florida and revive his judgment.2 He can then come back to Georgia within five years and file suit free of the limitations of § 3—701.
5
It can be seen, therefore, that the Georgia statute has not discriminated against the judgment from Florida. Instead, it has focused on the law of that State. If Florida had a statute of limitations of five years or less on its own judgments, the appellant would not be able to recover here.3 But this disability would flow from the conclusion of the Florida Legislature that suits on Florida judgments should be barred after that period.4 Georgia's construction of § 3—701 would merely honor and give effect to that conclusion. Thus, full faith and credit is insured, rather than denied, the law of the judgment State. Similarly, there is no denial of equal protection in a scheme that relies upon the judgment State's view of the validity of his own judgments. Such a scheme hardly reflects invidious discrimination.
6
Affirmed.
7
Mr. Justice DOUGLAS dissents.
1
The case most directly in point, M'Elmoyle for Use of Bailey v. Cohen, 13 Pet. 312, 10 L.Ed. 177, upheld the Georgia statute with which we deal today. But the parties in that case did not argue the statute's shorter limitation for foreign judgments as the ground of its invalidity. Instead, the issue presented to this Court concerned the power of the States to impose any statute of limitations upon foreign judgments. See argument for plaintiff, 13 Pet., at 313—320, 10 L.Ed. 177. The language of Mr. Justice Wayne's opinion—'may not the law of a state fix different times for barring the remedy in a suit upon a judgment of another state, and for those of its own tribunals,' 13 Pet., at 328, 10 L.Ed. 177 must be read against this argument. And, of course, that opinion cannot stand against an equal-protection claim, since it was written nearly 30 years before the Fourteenth Amendment was adopted.
Neither of the cases cited by the Georgia Supreme Court dictates the result of this case. The first, Metcalf v. City of Watertown, 153 U.S. 671, 14 L.Ed. 947, 38 L.Ed. 861, involved a Wisconsin statute which provided a shorter limitation for foreign, as opposed to domestic, judgments. But the holding of the case was merely that this statute should be construed as placing the same limitation on the judgment of a federal court sitting in Wisconsin as would apply to a judgment of a Wisconsin state court. The other precedent cited by the court below, Great Western Tel. Co. v. Purdy, 162 U.S. 329, 16 S.Ct. 810, 40 L.Ed. 986, dealt with an Iowa statute of limitations on judgments that placed the same limitation on orders of foreign and domestic courts.
2
The Florida statute of limitations on domestic judgments is 20 years. Fla.Stat.Ann. § 95.11(1) (1960). Thus, it appears that appellant still has ample time to revive his judgment and bring it back to Georgia. See Massey v. Pineapple Orange Co., 87 Fla. 374, 100 So. 170 (1924); Spurway v. Dyer, 48 F.Supp. 255 (D.C.S.D.Fla.1942). Moreover, appellant can obtain substituted service of process over appellee in his revival proceeding. Fla.Stat.Ann. § 48.01(9) (1943).
The Florida procedure for reviving judgments is similar to that of Alabama—Ala.Code, Tit. 7, § 574 (1960)—which was held in Baty v. Holston, 108 Ga.App. 359, 133 S.E.2d 107 (1963), to revive a foreign judgment under § 3—701.
3
Such a short statute of limitations for domestic judgments is by no means a matter of mere speculation. See 2 Freeman, The Law of Judgments § 1076 (5th ed. 1925).
4
If the appellant held a judgment from a State which did not consider its judgments to become dormant, so that no revival proceeding could be brought, we would be faced with a different case. See Frank v. Wolf, 17 Ga.App. 468, 87 S.E. 697 (1916).
| 78
|
385 U.S. 196
87 S.Ct. 365
17 L.Ed.2d 294
Roy WALKER, Petitioner,v.SOUTHERN RAILWAY COMPANY.
No. 89.
Argued Nov. 10, 1966.
Decided Dec. 5, 1966.
Rehearing Denied Jan. 9, 1967.
See 385 U.S. 1020, 87 S.Ct. 699.
J. Nat Hamrick, Rutherfordton, N.C., for petitioner.
Jerome Ackerman, Washington, D.C., for respondent.
PER CURIAM.
1
Under Moore v. Illinois Central Railroad Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089, decided in 1941, a discharged railroad employee aggrieved by the discharge may either (1) pursue his remedy under the administrative procedures established by an applicable collective bargaining agreement subject to the Railway Labor Act, and his right of review before the National Railroad Adjustment Board, or (2) if he accepts his discharge as final, bring an action at law in an appropriate state court for money damages if the state courts recognize such a claim. See also Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 244, 70 S.Ct. 577, 579, 94 L.Ed. 795; Transcontinental & Western Air, Inc. v. Koppal, 345 U.S. 653, 73 S.Ct. 906, 97 L.Ed. 1325. The question in this case is whether those decisions should be overruled in light of Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580, decided in 1965.
2
Petitioner was a yard fireman in the employ of respondent, the railroad. He sued in a North Carolina court on a claim that respondent had unlawfully discharged him on May 29, 1957, in violation of its collective bargaining agreement with the Brotherhood of Locomotive Firemen and Enginemen. The action was removed by respondent to the Federal District Court by reason of diversity of citizenship. The District Court overruled respondent's challenge to its jurisdiction, citing Moore, Slocum, and Koppal, and entered a judgment for damages in petitioner's favor. 237 F.Supp. 278. The Court of Appeals for the Fourth Circuit reversed, holding that Maddox, decided after the entry of the District Court judgment, required that petitioner first exhaust his administrative remedies. 354 F.2d 950. Since our opinion in Maddox expressly stated that 'we do not mean to overrule (Moore v. Illinois Central R. Co.) within the field of the Railway Labor Act' but that '(c)onsideration of such action should properly await a case presented' under that Act, 379 U.S., at 657, n. 14, 85 S.Ct., at 619, we granted certiorari, 384 U.S. 926, 86 S.Ct. 1447, 16 L.Ed.2d 530. We reverse.
3
Maddox presented the question whether contract grievance procedures provided in a collective bargaining agreement subject to the Labor Management Relations Act, 1947, and culminating in binding arbitration might be sidestepped in favor of a lawsuit, in light of the federal policy reflected in the LMRA of favoring such agreed-upon contract grievance procedures as the preferred method for settling disputes. The action was brought in an Alabama state court by an employee of the Republic Steel Corporation for severance pay allegedly owed him under the terms of a collective bargaining agreement which contained such a grievance procedure. We held that contract grievance procedures voluntarily incorporated by the parties in collective bargaining agreements subject to the LMRA, unless specified by the parties to be nonexclusive, must be exhausted before direct legal redress may be sought by the employee.
4
Provision for arbitration of a discharge grievance, a minor dispute, is not a matter of voluntary agreement under the Railway Labor Act; the Act compels the parties to arbitrate minor disputes before the National Railroad Adjustment Board established under the Act. Brotherhood of Railroad Trainmen v. Chicago River & Indiana R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622. Both at the time of petitioner's alleged discharge and at the time he brought his lawsuit, there was considerable dissatisfaction with the operations of the National Railroad Adjustment Board and with some of the statutory features. Congress initiated an inquiry and found that among other causes for dissatisfaction, 'railroad employees who have grievances sometimes have to wait as long as 10 years or more before a decision is rendered (by the Board) on their claim'; for example, 'the First Division (which has jurisdiction over disputes involving yard service employees of petitioner's class) * * * has never been current in its work, (and has) a backlog of approximately 7 1/2 years * * *.' H.R.Rep.No.1114, 89th Cong., 1st Sess., at 3, 5; S.Rep.No.1201, 89th Cong., 1st Sess., at 2. The Congress also found that 'if an employee receives an award in his favor from the Board, the railroad affected may obtain judicial review of that award by declining to comply with it. If, however, an employee fails to receive an award in his favor, there is no means by which judicial review may be obtained.' H.R.Rep., supra, at 15. S.Rep. at 3.
5
In consequence, Congress enacted. Public Law 89—456, 80 Stat. 208, effective June 20, 1966, which drastically revises the procedures in order to remedy the defects. Of course the new procedures were not available to petitioner, and his case is governed by Moore, Slocum, and Koppal. The contrast between the administrative remedy before us in Maddox and that available to petitioner persuades us that we should not overrule those decisions in his case.
6
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.
7
Reversed and remanded.
8
Mr. Justice HARLAN, whom Mr. Justice STEWART and Mr. Justice WHITE join, dissenting.
9
I dissent because I believe this Court's decision in Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580, requires the explicit overruling of Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089, a case that has already been all but completely vitiated by subsequent decisions.
10
In Moore, a railroad trainman brought an action for damages based upon an alleged wrongful discharge without first exhausting administrative remedies. Federal jurisdiction was invoked on the ground of diversity; at that time an employment contract under the Railway Labor Act was thought to be governed, like ordinary contracts, by state law. The applicable law in that case—that of Mississippi—did not require exhaustion of remedies. The Court held that nothing in the Railway Labor Act required a contrary result.
11
The premise of the Moore decision, that state law was applicable to this type of labor contract, was removed in a series of decisions holding that labor contracts governed by the Labor Management Relations Act, 1947, and the Railway Labor Act are subject to federal substantive law, not state law. Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972; International Assn. of Machinists, AFL—CIO v. Central Airlines, Inc., 372 U.S. 682, 83 S.Ct. 956, 10 L.Ed.2d 67. In Maddox, supra, the doctrine of exhaustion of remedies was declared by this Court to be a part of this federal labor law: 'As a general rule in cases to which federal law applies, federal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress.' 379 U.S., at 652, 85 S.Ct., at 616. Strong policy arguments were adduced in Maddox to support this general rule. See 379 U.S., at 652—653, 85 S.Ct., at 616—617; Cox, Rights Under a Labor Agreement, 69 Harv.L.Rev. 601, 647—652 (1956).
12
I can see no reason why this rule should be thought inapplicable to cases under the Railway Labor Act. Although the Maddox decision did not explicitly cover such cases, the single dissenting Justice recognized that the Court, '* * * while declining expressly to overrule * * * (Moore and its progeny) in this case, has raised the overruling axe so high that its falling is just about as certain as the changing of the seasons.' 379 U.S., at 667, 85 S.Ct., at 624. The only two courts of appeals to deal with the impact of Maddox on Moore have concurred in declaring that exhaustion of remedies is now required in the railway labor field. Walker v. Southern R. Co., 354 F.2d 950 (C.A.4th Cir.); Neal v. System Bd. of Adjustment, 348 F.2d 722 (C.A.8th Cir.). A Pennsylvania appellate court has refused to permit a suit like this one in state court on the ground that since Maddox, 'We cannot see how the Moore case is still effective to permit a recovery in a state court suit in this case.' Beebe v. Union R. Co., 205 Pa.Super. 146, 153, 208 A.2d 16, 20. Other state courts have reached the same conclusion. Buchanan v. St. Louis Southwestern R. Co., Tex.Civ.App., 400 S.W.2d 362; Caffery v. New York Central R. Co., 24 A.D.2d 1075, 265 N.Y.S.2d 742.
13
The rule of exhaustion of contractual and administrative remedies is a salutary one in an area in which specialization is important and the expertise of certain arbitral bodies is recognized. In Whitehouse v. Illinois Central R. Co., 349 U.S. 366, 371, 75 S.Ct. 845, 849, 99 L.Ed. 1155, the Court noted that "The railroad world is like a state within a state. Its population of some three million, if we include the families of workers, has its own customs and its own vocabulary, and lives according to rules of its own making.' Garrison, The National Railroad Adjustment Board: A unique Administrative Agency, 46 Yale L.J. 567, 568—569.' It is true of course, as the Court observes, that in the Labor Management Relations Act cases arbitration is imposed contractually while under the Railway Labor Act arbitration by the Adjustment Board is mandatory for all 'minor' contractual disputes. If anything, this distinction weighs in favor of respecting Congress' determination that disputes as to proper practices under a railroad labor contract be settled—at least initially—through direct negotiation between the affected parties and, that failing, by Adjustment Board arbitration.
14
The Court's only rationale for refusing to take the step of formally overruling Moore at this time, a step to which current precedent, logic, and policy all so persuasively point, is that there has apparently been some dissatisfaction with the speed of the Board's procedures and with the statute's scope of appeal. This dissatisfaction is properly the subject of congressional concern. It is in my view, however, unsound for this Court to make the question whether exhaustion of remedies applies depend upon our decision as to how effectively we think the Board is functioning. It should be enough, as a unanimous Court said just last Term, that Congress '* * * invested the Adjustment Board with the broad power to arbitrate grievances and plainly intended that interpretation of these controversial provisions should be submitted for the decision of railroad men, both workers and management, serving on the adjustment Board with their long experience and accepted expertise in this field.' Gunther v. San Diego & A.E.R. Co., 382 U.S. 257, 261—262, 86 S.Ct. 368, 371, 15 L.Ed.2d 308. The Court there stated: 'This Court time and again has emphasized and re-emphasized that Congress intended minor grievances of railroad workers to be decided finally by the Railroad Adjustment Board.' Id., at 263, 86 S.Ct., at 372.
15
We need not even go back to last Term for such an expression of confidence in the workings of the Railroad Adjustment Board as the central organ of Railway Labor Act contract interpretion. In today's decision in Transportation—Communication Employees Union v. Union Pacific R. Co., 385 U.S. 157, 87 S.Ct. 369, 17 L.Ed.2d 264, the Court holds that the jurisdiction of the Board extends to settlement of tripartite work-assignment disputes. 'The railroad, the employees, and the public, for all of whose benefits the Railway Labor Act was written,' the Court says, 'are entitled to have a fair, expeditious hearing to settle disputes of this nature.' 385 U.S., at 162, 87 S.Ct. p. 372. To meet arguments that the Board is not capable of dealing with such complex problems, the Court rightly notes that the Board can '* * * with its experience and common sense, handle this entire dispute in a satisfactory manner in a single proceeding.' 385 U.S., at 165, 87 S.Ct. p. 373.
16
I can see no reason why the Board, for purposes of the simple run-of-the-mill contract dispute raised in the present case, is suddenly deemed so incapable of adequately handling the question that the familiar labor law doctrine of exhaustion of remedies is ignored in this instance.
17
In would affirm the judgment of the Court of Appeals.
| 78
|
385 U.S. 182
87 S.Ct. 359
17 L.Ed.2d 281
CANADA PACKERS, LIMITED, Petitioner,v.The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY et al.
No. 11.
Argued Nov. 8 and 9, 1966.
Decided Dec. 5, 1966.
Charles B. Myers, Chicago, Ill., for petitioner.
Harvey Huston, Chicago, Ill., for respondents.
Louis F. Claiborne, Washington, D.C., for the United States, as amicus curiae, by special leave of Court.
Leonard S. Goodman, Washington, D.C., for Interstate Commerce Commission, as amicus curiae.
PER CURIAM.
1
This case concerns the power of the Interstate Commerce Commission in reparations proceedings to determine the reasonableness of a joint through international freight rate. The American railroad respondents and their connecting carriers delivered 131 cars of potash from Carlsbad and Loving, New Mexico, to petitioner's plants in Canada. Petitioner was charged and it paid a joint through international rate which it later attacked as unreasonable in a reparations proceeding before the Commission. Finding the rate to be unreasonable, the Commission ordered reparations in the amount of the difference between the rate charged and the rate which would have been reasonable at the time. Respondents refused to pay part of this amount on the theory that it represented an alleged overcharge for the Canadian leg of the trip over which the Commission had no jurisdiction under the applicable statute. This action followed in the District Court to collect the unpaid amount. The District Court found for the petitioner, the Court of Appeals reversed, 342 F.2d 563, and we granted certiorari, 383 U.S. 906, 86 S.Ct. 880, 15 L.Ed.2d 661.
2
The provisions of the Interstate Commerce Act apply not only to transportation within the United States but to transportation from or to any place in the United States to or from a foreign country 'but only insofar as such transportation * * * takes place within the United States.' 24 Stat. 379, as amended, 49 U.S.C. § 1(1). The Court of Appeals held that the Commission in this case was without jurisdiction to determine the reasonableness of freight rates for transportation taking place in Canada and hence was without power to order reparations with respect to the Canadian portion of the trip. The respondents and the United States, the latter differing with the Commission in this case, take a similar view. As an original matter there might well be considerable merit in this position. But the contrary view of the Commission is one of long standing, see Black Horse Tobacco Co. v. Illinois Central R. Co., 17 I.C.C. 588 (1910), and Citizens Gas & Coke Utility v. Canadian Nat. Rys., 325 I.C.C. 527 (1965), and one which this Court has upheld on more than one occasion. News Syndicate Co. v. New York Central R. Co., 275 U.S. 179, 48 S.Ct. 39, 72 L.Ed. 225, squarely held that where a carrier performing transportation within the United States enters into a joint through international rate covering transportation in the United States and abroad, the Commission does have jurisdiction to determine the reasonableness of the joint through rate and to order the carrier performing the domestic service to pay reparations in the amount by which that rate is unreasonable. Lewis-Simas-Jones Co. v. Southern Pacific Co., 283 U.S. 654, 51 S.Ct. 592, 75 L.Ed. 1333, and Great Northern R. Co. v. Sullivan, 294 U.S. 458, 55 S.Ct. 472, 79 L.Ed. 992, are in accord. The Court of Appeals and respondents would distinguish these cases, but we think the differences relied on are insubstantial. Indeed, the United States quite candidly requests that we consider these older cases and so narrow the powers of the Commission with respect to joint through international rates. It is not shown, however, that the long-standing construction of the statute by both the Commission and this Court has produced any particularly unfortunate consequences and Congress, which could easily change the rule, has not yet seen fit to intervene. In these circumstances, we shall not disturb the construction previously given the statute by this Court, and the decision of the Court of Appeals must be reversed.
3
Reversed.
4
Mr. Justice DOUGLAS, dissenting.
5
An Act of Congress gives the Interstate Commerce Commission jurisdiction over transportation from or to any place in the United States to or from a foreign country 'but only insofar as such transportation * * * takes place within the United States.' 24 Stat. 379, as amended, 49 U.S.C. § 1(1). How that can be read, 'Whether or not such transportation * * * takes place within the United States' remains a mystery. News Syndicate Co. v. New York Central R. Co., 275 U.S. 179, 48 S.Ct. 39, 72 L.Ed. 225, and Lewis-Simas-Jones Co. v. Southern Pacific Co., 283 U.S. 654, 51 S.Ct. 592, 75 L.Ed. 1333, actually decided something less.
6
In News Syndicate there was a through rate from a point in Canada to New York City; but the carrier had failed to establish a rate from the international boundary to New York City. The Court refused to let the jurisdiction of the Commission be defeated in that way and allowed it to determine the reasonableness of the through rate. 275 U.S., at 187, 48 S.Ct., at 40. In the Lewis-Simas-Jones case the Court also emphasized that no tariff applicable 'to the American part of the transportation of an international shipment on a through bill of lading' had been established 'as required by the Act.' 283 U.S., at 663, 51 S.Ct., at 596. Those cases were explained in Great Northern R. Co. v. Sullivan, 294 U.S. 458, 462, 55 S.Ct. 472, 474, 79 L.Ed. 992.
7
'In each, shipments moved from an adjacent country into the United States on through rates made by joint action of the participating foreign and American carriers. The American carrier, having violated the Act by failure to file any tariff to cover its part of the transportation, collected freight charges found to be excessive and, as one of two or more joint tortfeasors, was held liable to the extent that the charges it exacted were in excess of what the commission ascertained to be just and reasonable. But here the charges collected were not excessive, and confessedly the same amounts lawfully might have been collected without injury or damage to plaintiff if only the connecting carriers had imposed the charges by means of 'joint' instead of the 'combination' through rates that they did establish.'
8
In the present case rates from Carlsbad and Loving, New Mexico, to the Canadian border points had been established. 300 I.C.C. 87. The issues presented in News Syndicate and Lewis-Simas-Jones are therefore not offered here. Stare decisis is an important principle in dealing with statutory law,1 though even so we have not always placed 'on the shoulders of Congress the burden of the Court's own error.' Girouard v. United States, 328 U.S. 61, 70, 66 S.Ct. 826, 830, 90 L.Ed. 1084.2 As we said in Toucey v. New York Life Ins. Co., 314 U.S. 118, 140—141, 62 S.Ct. 139, 147, 86 L.Ed. 100:
9
'There is no occasion here to regard the silence of Congress as more commanding than its own plainly and unmistakably spoken words. This is not a situation where Congress has failed to act after having been requested to act or where the circumstances are such that Congress would ordinarily be expected to act. * * * To find significance in Congressional non-action under these circumstances is to find significance where there is none.'
10
And see Helvering v. Hallock, 309 U.S. 106, 119—122, 60 S.Ct. 444, 451—453, 84 L.Ed. 604. Compare Mabee v. White Plains Publishing Co., 327 U.S. 178, 185, 66 S.Ct. 511, 514, 90 L.Ed. 607. Nor do we have here a precedent 'around which, by the accretion of time and the response of affairs, substantial interests have established themselves.' Helvering v. Hallock, supra, 309 U.S. at 119, 60 S.Ct., at 451.
11
Moreover, we need not be slaves to a precedent by treating it as standing for more than it actually decided nor by subtly eroding it in sophisticated ways. See Radin, The Trail of the Calf, 32 Cornell L.Q. 137, 143 (1946). It is enough that we do not approve 'of the doctrinal generalization which the previous court used' (ibid.) and confine the precedent to what it actually decided. Certainly we should not extend the range of a precedent beyond its generating reason especially when another policy, here the plain words of an Act of Congress, will be impaired by doing so.
12
I would affirm this judgment.
1
'The House of Lords no longer regards the reasoning in previous cases as sacrosanct. Witness its striking departure in Public Trustee v. Inland Revenue Commissioners ((1960) A.C. 398) and Midland Silicones Ltd. v. Scruttons Ltd. ((1962) A.C. 446). Those cases show that the House will not treat as absolutely binding any line of reasoning in a previous case which was not necessary to the decision: but will regard itself as at liberty to depart from it if convinced that it was wrong.' Penn-Texas Corp. v. Murat Anstalt (1964) 2 Q.B. 647, 661.
And see (1966) C.L.Y. 9921:
'The Lord Chancellor made the following statement on July 26, 1966, on behalf of himself and the Lords of Appeal in Ordinary:
'Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.
'Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.
'In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.
'This announcement is not intended to affect the use of precedent elsewhere than in this House.'
See generally Cross, Stare Decisis in Contemporary England, 82 L.Q.Rev. 203 (1966).
2
We have not been reluctant to reverse our own erroneous interpretation of an Act of Congress. See, e.g., Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604; Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172; Toucey v. New York Life Ins. Co., 314 U.S. 118, 62 S.Ct. 139, 86 L.Ed. 100; Commissioner of Internal Revenue v. Estate of Church, 335 U.S. 632, 69 S.Ct. 322, 93 L.Ed. 288; James v. United States, 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246; Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246; Local No. 438, Construction & General Laborers' Union v. Curry, 371 U.S. 542, 552, 83 S.Ct. 531, 538, 9 L.Ed.2d 514; Fay v. Noia, 372 U.S. 391, 435, 83 S.Ct. 822, 847, 9 L.Ed.2d 837.
| 89
|
385 U.S. 157
87 S.Ct. 369
17 L.Ed.2d 264
TRANSPORTATION-COMMUNICATION EMPLOYEES UNION, Petitioner,v.UNION PACIFIC RAILROAD CO.
No. 28.
Argued Oct. 19, 1966.
Decided Dec. 5, 1966.
Rehearing Denied Jan. 16, 1967.
See 385 U.S. 1032, 87 S.Ct. 737.
Milton Kramer, Washington, D.C., for petitioner.
James A. Wilcox, Omaha, Neb., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
Transportation - Communication Employees Union, the petitioner, is the bargaining representative of a group of railroad employees commonly known as 'Telegraphers.' Prior to 1952 these telegraphers were commonly assigned the duty of sending, by telegraph, railroad way bills, manifests and orders prepared by clerks, members of the brotherhood of Railway Clerks. In 1952, however, the respondent here, Union Pacific Railroad Company, installed IBM machines which resulted in a radical change in the work-load of the telegraphers and clerks. When the clerical work previously done by the clerks is manually performed on the IBM machines, the machines automatically perform the communications functions previously performed by the telegraphers. As a result, the railroad's need for telegraphers was practically eliminated and operation of the IBM machines was assigned to members of the clerks' union. This case arises out of the dispute over the railroad's assignment of these jobs to the clerks. The telegraphers' union, claiming the jobs for its members under its collective bargaining agreement, protested the railroad's assignment and, in due course, referred its claim to the Railroad Adjustment Board as authorized by § 3 First (i) of the Railway Labor Act.1 Notice of the referral was given to the clerks' union, which, pursuant to an understanding with the other labor unions, declined to participate in this proceeding on the ground that it had no interest in the matter but stated its readiness to file a like proceeding before the Board to protect its members should any of their jobs be threatened.2 The Board then heard and decided the case without considering the railroad's liability to the clerks under its contract with them, concluded that the telegraphers were entitled to the jobs under their contract, and ordered that the railroad pay the telegraphers who had been idle because of the assignment of the jobs to the clerks. The telegraphers' union then brought this action in a United States District Court to enforce the Board's award as authorized by § 3 First (p) of the Act. That court dismissed the case on the ground that the clerks' union was an indispensable party, and that the telegraphers, though given the opportunity, refused to make it a party. 231 F.Supp. 33. Affirming the dismissal, the Court of Appeals pointed out that the Board had failed to carry out its exclusive jurisdictional responsibility to decide the entire dispute with relation to the conflicting claims of the two unions under their respective contracts to have the jobs assigned to their members.3 We granted certiorari in order to settle doubts about whether the Adjustment Board must exercise its exclusive jurisdiction to settle disputes like this in a single proceeding with all disputant unions present. Cf. Whitehouse v. Illinois Cent. R. Co., 349 U.S. 366, 371—372, 75 S.Ct. 845, 849, 99 L.Ed. 1155. We hold that it must.
I.
2
Petitioner contends that it is entirely appropriate for the Adjustment Board to resolve disputes over work assignments in a proceeding in which only one union participates and in which only that union's contract with the employer is considered. This contention rests on the premise that collective bargaining agreements are to be governed by the same common-law principles which control private contracts between two private parties. On this basis it is quite naturally assumed that a dispute over work assignments is a dispute between an employer and only one union. Thus, it is argued that each collective bargaining agreement is a thing apart from all others and each dispute over work assignments must be decided on the language of a single such agreement considered in isolation from all others.
3
We reject this line of reasoning. A collective bargaining agreement is not an ordinary contract for the purchase of goods and services, nor is it governed by the same old common-law concepts, which control such private contracts. John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 550, 84 S.Ct. 909, 914, 11 L.Ed.2d 898; cf. Steele v. Louisville & N.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173. '* * * (I)t is a generalized code to govern a myriad of cases which the draftsmen cannot wholly anticipate. * * * The collective agreement covers the whole employment relationship. It calls into being a new common law—the common law of a particular industry or of a particular plant.' United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 578—579, 80 S.Ct. 1347, 1351, 4 L.Ed.2d 1409. In order to interpret such an agreement it is necessary to consider the scope of other related collective bargaining agreements, as well as the practice, usage and custom pertaining to all such agreements. This is particularly true when the agreement is resorted to for the purpose of settling a jurisdictional dispute over work assignments.
4
There are two kinds of these jurisdictional disputes. Both are essentially disputes between two competing unions, not merely disputes between an employer and a single union. The ordinary jurisdictional dispute arises when two or more unions claim the right to perform a job which existed at the time their collective bargaining contracts with the employer were made. In such a situation it would be highly unlikely that each contract could be construed as giving each union the right to be paid for the single job. But the dispute before us now is not the ordinary jurisdictional dispute where each union claims the right to perform a job which existed at the time its collective bargaining agreement was made. Here, though two jobs existed when the collective bargaining agreements were made and though the railroad properly could contract with one union to perform one job and the other union to perform the other, automation has now resulted in there being only one job, a job which is different from either of the former two jobs and which was not expressly contracted to either of the unions. Although only one union can be assigned this new job, it may be that the railroad's agreement with the nonassigned union obligates the railroad to pay it for idleness attributable to such job elimination due to automation. But this does not mean that both unions can, under their separate agreements, have the right to perform the new job or that the Board, once the dispute has been submitted to it, can postpone determining which union has the right to the job in the future. By first ordering the railroad to pay one union and then later, in a separate proceeding, ordering it to pay the other union, without ever determining which union has the right to perform the job and thus without ever prejudicing the rights of the other union, the Board abdicates its duty to settle the entire dispute. Yet this is precisely the kind of merry-go-round situation which the petitioner claims is envisaged by the Act, a procedure which certainly does not 'provide for the prompt and orderly settlement of all disputes * * *,' the purpose for which the Adjustment Board was established. § 2(5). (Emphasis supplied.)
II.
5
The railroad, the employees, and the public, for all of whose benefits the Railway Labor Act was written, are entitled to have a fair, expeditious hearing to settle disputes of this nature. And we have said in no uncertain language that the Adjustment Board has jurisdiction to do so. Order of Railway Conductors v. Pitney, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed. 318, was decided 20 years ago. That case concerned a dispute over which employees should be assigned to do certain railroad jobs—members of the conductors' union under their contract or members of the trainmen's union under their contract. In that case a district court, in charge of a railroad in bankruptcy, had entered a judgment in favor of the conductors. We reversed, holding that the Railway Labor Act vested exclusive power in the Adjustment Board to decide that controversy over job assignments. It is true that we did not precisely decide there that the Board must bring before it all unions claiming the same jobs for their members, but we did say this:
6
'We have seen that in order to reach a final decision on that question the court first had to interpret the terms of O.R.C.'s collective bargaining agreements. The record shows, however, that interpretation of these contracts involves more than the mere construction of a 'document' in terms of the ordinary meaning of words and their position. * * * For O.R.C.'s agreements with the railroad must be read in the light of others between the railroad and B.R.T. And since all parties seek to support their particular interpretation of these agreements by evidence as to usage, practice and custom, that too must be taken into account and properly understood. The factual question is intricate and technical. An agency especially competent and specifically designated to deal with it has been created by Congress.' Id., 326 U.S. at 566—567, 66 S.Ct. at 325. (Emphasis supplied.)
7
Four years after Pitney we decided Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795. In that case a state court had interpreted collective bargaining contracts between a railroad and the same two unions here and had decided in favor of the clerks. We reversed, and relying on Pitney, said:
8
'* * * There we held, in a case remarkably similar to the one before us now, that the Federal District Court in its equitable discretion should have refused 'to adjudicate a jurisdictional dispute involving the railroad and two employee accredited bargaining agents * * *.' Our ground for this holding was that the court 'should not have interpreted the contracts' but should have left this question for determination by the Adjustment Board, a congressionally designated agency peculiarly competent in this field. 326 U.S. at 567—568, 66 S.Ct. at page 325, 90 L.Ed. 318. Id., 339 U.S. at 243—244, 70 S.Ct. at 579. (Emphasis supplied.)
9
We adhere to our holdings in Pitney and Slocum that the Adjustment Board does have exclusive jurisdiction to hear and determine disputes like this. See also Order of Railway Conductors of America v. Southern R. Co., 339 U.S. 255, 70 S.Ct. 585, 94 L.Ed. 811. Petitioner argues that we are barred from this holding by Whitehouse v. Illinois Cent. R. Co., 349 U.S. 366, 75 S.Ct. 845, 99 L.Ed. 1155, decided after Pitney and Slocum. There is some language in Whitehouse which, given one interpretation, might justify an inference against the Adjustment Board's jurisdiction fully to decide this case in a single proceeding. But in the final analysis the holding in Whitehouse was only that the primary jurisdiction of the Adjustment Board could not be frustrated by a premature judicial action. Cf. Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 265—266, 84 S.Ct. 401, 405, 406, 11 L.Ed.2d 320. We decline to expand that case beyond its actual holding.
10
The Adjustment Board has jurisdiction, which petitioner admits, to hear and decide the controversy over the interpretation of the telegraphers' contract with the railroad as it relates to the work assignments. And § 3 First (j) provides that 'the several divisions of the Adjustment Board shall give due notice of all hearings to the employee or employees and the carrier or carriers involved in any disputes submitted to them.' The clerks' union was given notice here as it should have been under § 3 First (j). Certainly it is 'involved' in this dispute. Without its presence, unless it chooses to default and surrender its claims for its members, neither the Board nor the courts below could determine this whole dispute. As respondent contends, to decide, as the Board has here, that the telegraphers are entitled to be paid for these jobs creates another controversy for the railroad with the clerks who have the jobs now. For should the Board's order be sustained, the railroad would not only have to make back payments to the telegraphers who have done no work but would be compelled to continue to pay two sets of workers—one set being idle. The Adjustment Board, as we said about the National Labor Relations Board in National Labor Relations Board v. Radio & Television Broadcast Engineers, 364 U.S. 573, 582—583, 81 S.Ct. 330, 335, 336, 5 L.Ed.2d 302, can, with its experience and common sense, handle this entire dispute in a satisfactory manner in a single proceeding.
11
We affirm the judgment of the Court of Appeals in holding that the clerks' union should be a party before the Board and the courts to this labor dispute over job assignments for its members. The cause should be remanded to the District Court with directions to remand this case to the Board.4 The Board should be directed to give once again the clerks' union an opportunity to be heard, and, whether or not the clerks' union accepts this opportunity, to resolve this entire dispute upon consideration not only of the contract between the railroad and the telegraphers, but 'in the light of * * * (contracts) between the railroad' and any other union 'involved' in the overall dispute, and upon consideration of 'evidence as to usage, practice and custom' pertinent to all these agreements. Order of Railway Conductors v. Pitney, supra, 326 U.S. at 567, 66 S.Ct. at 325, 90 L.Ed. 318. The Board's order, based upon such thorough consideration after giving the clerks' union a chance to be heard, will then be enforceable by the courts. It is so ordered.
12
Judgment of Court of Appeals affirmed and cause remanded with directions.
13
Mr. Justice STEWART, whom Mr. Justice BRENNAN joins, concurring.
14
Until now the Adjustment Board has dealt with the claim of the telegraphers as though it were totally unrelated to the claim of the clerks. To take this piecemeal approach to the underlying causes of this controversy not only invites inconsistent awards, but also ignores the industrial context in which the disputed contract was framed and implemented.
15
This case aptly illustrates why the Board cannot judge one-half of a problem while closing its eyes to the other half. The disputed provisions of the collective agreement were drawn before technological progress telescoped two work stations into one. The agreement did not explicitly provide for such a change. But it was designed to cover an extended period of time, and its language is sufficiently general to allow for flexibility in the light of changing circumstances.*
16
To do justice to the parties in this situation the Board must take full measure of their circumstances. To justify the deference which the law has given to its decisions, the Board must employ a decision-making technique that rests on fair procedure and industrial realities. By using a simple bilateral contract analysis the Board defaults in both of these duties. Cf. Cox, The Legal Nature of Collective Bargaining Agreements, 57 Mich.L.Rev. 1, 22—23, 26—27 (1958); Note, 75 Yale L.J. 877, 889—890 (1966).
17
Only by proceeding as the Court today directs can the Board properly decide cases of this kind. The provisions in the Railway Labor Act which state that the Board's orders are to be directed only against the carrier do not detract from the power of the Board to fulfill its tasks. For if the telegraphers and the clerks both advanced their claims and the Board directed the carrier to honor the claims of only one union, the other union would be bound just as though it had lost in a multilateral in rem proceeding. See 3 Freeman, The Law of Judgments §§ 1524—1526 (5th ed. 1925).
18
Since the Board has failed to use procedures which allow for an informed and fair understanding of the dispute between the petitioner and respondent, I concur in the opinion and judgment of the Court.
19
Mr. Justice FORTAS, with whom THE CHIEF JUSTICE joins, dissenting.
20
This case involves a dispute between the telegraphers' union and a railroad as to whether the union's members, under its collective bargaining agreement with the carrier, were entitled to certain jobs (or compensatory payments in lieu thereof) which the carrier had unilaterally allotted to another union, the clerks. The telegraphers complained to the Railroad Adjustment Board. The Board held that, under the contract between the telegraphers and the railroad, the telegraphers' members had a right to the jobs, and it ordered the carrier to make compensatory payments to the senior telegrapher idled by its action.
21
The Court now holds that such an award will not be enforced because the clerks' union was not a party to the proceeding, and because the Board merely adjudicated the rights of the telegraphers and did not determine whether the clerks were entitled to the jobs instead. The Court's opinion states that the jobs in question must belong to one union or the other, and that it is the Board's duty to decide which of the two unions is entitled to the jobs.
22
I dissent. The Board acted as the statute commands. As I shall discuss, its power is limited to adjudications of grievances and contract disputes between a union and a railroad. It cannot compel conversion of a complaint proceeding between a union and a railroad into a three-party proceeding to 'settle the entire dispute.' Certainly the courts should not refuse to enforce its award because the Board has failed to do something which the statute does not require or empower it to do. I also emphatically submit that this Court should neither devise nor impose upon the Board or upon management and labor, the proposition, making its debut in this case in the field of railway labor law, that 'only one union can be assigned this new job.' There is nothing in the statute or precedents that permits or justifies this peremptory judicial foray into other people's business.
23
The basis of the Court's holding cannot be found in any provision of the Railway Labor Act. 44 Stat. 577 (1926), as amended, 45 U.S.C. §§ 151—188 (as amended by Act of June 20, 1966, 80 Stat. 208). The Court adverts to § 2 of the Act, which sets forth the purposes of the Railway Labor Act (including, of course, provisions relating to the National Mediation Board and provisions creating general duties and rights of carriers and employees—none of which defines the powers of the Adjustment Board). Section 2 sets forth a number of purposes, among which appears the phrase quoted in part by the Court: '(4) to provide for the prompt and orderly settlement of all disputes concerning rates of pay, rules, or working conditions; (5) to provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.' To the extent to which these provisions relate specifically to the purposes of the Adjustment Board, they do not define its powers. The Board's powers are specifically defined and limited in § 3 First (i) of the Act. The Court begs the question by giving to the phrase 'settlement of all disputes' a meaning which disregards both the qualifying language of § 2 itself, and the specific enumeration of powers in § 3 First (i).
24
Ultimately, however, the Court appears to rest its decision not upon the Act, but upon a 'principle' which it now creates. That proposition—unknown to railway labor law until this day—is that, whatever the parties' contract provides, the Board must observe and enforce the rule that 'only one union can be assigned this new job.' The Court holds that even if 'the railroad's agreement with the nonassigned union obligates the railroad to pay it for idleness attributable to such job elimination due to automation,' the Board cannot conclude 'that both unions can, under their separate agreements, have the right to perform the new job * * *' It is because of this controlling principle that the Court asserts it was error for the Board to make an award unless the award would bind the clerks' union as well. Throughout its opinion the Court stresses that there is now but one 'job' and that only one union's member can have 'the right to the job.' Obviously only one person can actually do the job; but the Board held only that a telegrapher was entitled to be paid for the job. In fact, the Court is—without articulation its premise—assuming that featherbedding is forbidden by natural law or some other type of mandate that overrides contract, and that it is the Board's duty to enforce the prohibition. From this novel premise it derives its conclusion that the award was not enforceable.
25
There is no basis in the Railway Labor Act for either of the Court's propositions: that both unions must be parties to a proceeding initiated by one of them, or that the Board must 'settle the entire dispute' by determining that one or the other (but not both) of the unions has title to the jobs. The Court's predilection for one job, one man may be sensible, but it may also be contrary to contract; and I know of no provision in the Constitution or statutes or decided cases that compels it. There is no basis for this Court to dictate—and that is what it is here doing—that a collective bargaining contract may not be enforced in accordance with its terms but must be subordinated to a one job, one man theory. This Court cannot and should not impose its own views. The anti-featherbedding principle may or may not be an admirable theory, depending upon one's preconceptions and point of view. It does not now exist in the railway labor field. And I respectfully suggest that this Court is in no position to assess the desirability of its judicial innovation. If featherbedding in the railroad industry is to be declared unlawful, it should not be this Court which does it. To say the least, the problems are too esoteric and too volatile to be the subject of judicial edict. They should be left to the parties and the legislature. Certainly, this Court should not invade the integrity of collective bargaining contracts to legislate the result it considers desirable or 'orderly.'
26
Only last Term this Court considered one of the peculiar institutions of railway labor, and sustained the validity of state 'full-crew' statutes. These statutes, in direct contrast to the one job, one man principle that the Court today assumes, have the effect sometimes of requireing railroads to hire one man, no job. The Court sustained these statutes against claims, among others, that Congress in the Railway Labor Act had preempted the field. Brotherhood of Locomotive Engineers v. Chicago, R.I. & P.R. Co., 382 U.S. 423, 86 S.Ct. 594, 15 L.Ed.2d 501 (1966). Such a 'sensitive and touchy problem' (id., 382 U.S. at 430, 86 S.Ct. at 597), the Court wisely decided, was to be left to collective bargaining and the States in the absence of a clear congressional command. It is hard to comprehend the Engineers case if, as the Court now finds, the Railway Labor Act itself (presumably ever since its enactment in 1926) or other overriding law forbids what 'full-crew' laws command. Certainly, the present problem, if it is a different one at all, is equally 'sensitive and touchy,' and the Court has yet to disclose the congressional authority dictating contrary treatment.
27
Prior decisions of this Court are of no assistance. The Court first refers to Order of Railway Conductors v. Pitney, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed. 318 (1946). The Court candidly states that 'we did not precisely decide there that the Board must bring before it all unions claiming the same jobs for their members * * *.' All that the Court decided in Pitney was that a dispute between two unions claiming a right to certain jobs had first to be determined by the Railroad Adjustment Board, and could not be decided initially by a bankruptcy court in reorganization proceedings. The passage from Pitney quoted by the Court merely states that the decision of the issue—the interpretation of the conductors' collective bargaining contract—had to be made in light of usage, practice and custom, and of other agreements between the railroad and the trainmen. Indeed, the quotation from Pitney recalls the basic principle that the Court here ignores: that in the 'intricate and technical' field of railway labor relations, no court, including this Court, should displace the agency which Congress has vested with authority—certainly not with the drastic imposition of a mandate to eliminate featherbedding.
28
It is, however, essential to note that there is absolutely no reason to believe that the Board failed to follow Pitney here. Both the majority and concurring opinions assume as fact that the Adjustment Board violated the duty declared in Pitney to construe the telegraphers' contract in light of the clerks' contract and railroad usage, practice and custom. Thus the majority characterizes the Board's proceedings in this case as one 'in which only (the telegraphers') * * * contract with the employer (was) * * * considered.' The concurrence asserts that 'Until now the Adjustment Board has dealt with the claim of the telegraphers as though it were totally unrelated to the claim of the clerks,' and has used 'a simple bilateral contract analysis' which prevented it from arriving at 'an informed and fair understanding of the dispute between the petitioner and respondent.' I am unable to find in the record before this Court any support for these suggestions that the Adjustment Board failed to perform its duty by refusing to consider the clerks' contract for its evidentiary value.1
29
The award of the Board makes clear that both practice and usage, and the possibly conflicting contractual claim of the clerks to the job in question, and the fact that clerks were currently performing the job, were considered by the Board. As to usage, the Board itself observed, with respect to a different aspect of its award, that 'there is unanimity upon the proposition that where, as here, the Scope Rule lists positions instead of delineating work, it is necessary to look to practice and custom to determine the work which is exclusively reserved by the Scope Rule to persons covered by the Agreement.'
30
The Board's analysis of the substance of the dispute shows its central awareness of the clerks' claim to the jobs. The machines involved in this case are IBM teletype printers and receivers. They perform automatically the function of transmitting and receiving teletype messages between on-line railroad offices. The Board found that prior to the installation of these machines, telegraphers had exclusively performed this transmitting and receiving function as teletype operators and printer operators. However, apparently for its own convenience, since other machines in its IBM-complex were operated by clerks, the railroad unilaterally assigned the operation of the teletype printers and receivers to members of the clerks' union. The Board found that the work involved in operating the new machines had 'been performed in the past by telegraphers and not by clerks.'
31
Furthermore, even if the majority and concurring opinions were correct in stating that the Board failed to take the proper broad view of its function in construing the contract before it, the remedy, of course, would be to remand to the Board for a second proceeding to construe this contract. Instead, the Court remands for an entirely new proceeding to construe not only the contract brought before the Board in this case, but also the contract of a third party which has never invoked the Board's jurisdiction, which is not a party and which can be compelled to become a party only by this Court's gloss on the statute, and in addition to apply in this new proceeding a novel substantive principle forbidding featherbedding.
32
Actually, the railroad's complaint is not that the Board refused to consider the clerks' contract, or relevant usage and practice. It is that the Board did not decide matters outside the issues submitted to it by the parties and the statute. And despite suggestions that Pitney was violated, the Court's real point—as it is respondent's—is that the Board should, in this proceeding between the telegraphers' union and the carrier, also decide the rights of the clerks' union—and should do so by awarding the jobs to one union or the other.
33
The Court also refers to Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795 (1950). This case is of no assistance whatever. The railroad filed an action in a state court for a declaratory judgment as to which of two unions was entitled under its contract with the railroad to have its members perform disputed jobs. Both unions were joined as defendants. This Court again held that the courts should not interpret the unions' contracts because this question is for determination by the Adjustment Board, 'a congressionally designated agency peculiarly competent in this field.' 339 U.S. at 244, 70 S.Ct. at 579.
34
There is no doubt of the soundness of either Pitney or Slocum. The Railroad Adjustment Board does have exclusive, primary jurisdiction to determine contract disputes between a union and a carrier. And the Board must do so in light of 'evidence as to usage, practice and custom' and of allegedly overlapping contracts with other unions. But the Board's authority is specific and limited. The Railway Labor Act narrowly defines the Adjustment Board's power. The Board2 hears a dispute (a) 'between an employee or group of employees and a carrier or carriers,' (b) 'growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions,' (c) if the dispute is referred to it 'by petition of the parties or by either party.' It renders 'awards,' which are 'final and binding upon both parties to the dispute.'3 That is the sum total of powers over disputes vested in the Railroad Adjustment Board.4
35
The Railroad Adjustment Board is quite a different agency from the National Labor Relations Board, from whose somewhat analogous role in other industries the Court appears to derive some comfort.5 The NLRB has broad jurisdiction over 'unfair labor practices.' Section 10(k) of the National Labor Relations Act (49 Stat. 453, as amended, 61 Stat. 146, 29 U.S.C. § 160(k)) provides that whenever it is charged that any person has engaged in the unfair labor practice of a strike to enforce a union's demand in a jurisdictional controversy with another union, the NLRB is 'empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen.' Under this section, this Court has in the past required the NLRB to take action of the kind which, in the present case, it for the first time requires of the Railroad Adjustment Board. The Court has held that the NLRB cannot obtain enforcement of a cease-and-desist order which determines only that the respondent union is not entitled to the work in dispute under its certification or collective bargaining agreement. The Court required that the Board go further and decide which of the two contending unions is entitled to the work and 'then specifically to award such tasks in accordance with its decision.' National Labor Relations Board v. Radio & Television Broadcast Engineers Union, 364 U.S. 573, 586, 81 S.Ct. 330, 338, 5 L.Ed.2d 302 (1961).6 The difficulty, however, is that § 10(k) has no counterpart in the Railway Labor Act. No such power exists in the Railroad Adjustment Board, nor does the statute impose any comparable duty upon it.
36
The Board is essentially a permanent bilateral arbitration institution created by statute for settling disputes arising in the context of an established contractual relationship.7 Its nature is illustrated by the provisions of the Act relating to awards made by the Board. These are couched in terms which assume a grievance or claim asserted by an employee or a union against a carrier. The provisions refer only to carriers, not to other unions. For example, § 3 First (o) states that 'In case of an award * * * in favor of petitioner * * * the Board shall make an order, directed to the carrier, to make the award effective * * *' (Italics added.) The only provision in the Act for enforcement of awards is cast in terms of the carrier: 'If a carrier does not comply with an order * * *' § 3 First (p). (Italics added.) Nowhere in the Act is there a syllable which would indicate the intention that the Board is empowered to make awards as between the claims of contending unions. The Act is as clear as can be that the Adjustment Board's function is to act in disputes between a carrier and a union or employee, to adjudicate grievances of employees or their organizations against the carriers, and to pass upon controversies as to the meaning of the collective bargaining agreement between a carrier and a union.8 The Board is not comparable in scope, function, capability or authority to the National Labor Relations Board.9 It has no authority over 'unfair labor practices' in general. It has no power comparable to that given the NLRB by s 10(k) of the National Labor Relations Act to 'hear and determine' jurisdictional disputes; it may make a decision affecting a jurisdictional dispute, but only if it comes to the Board in the limited and constricted form of a dispute between a union and a carrier as to the meaning and application of their agreement.
37
The Act does not give the Board power to compel a union which is affected by a contract dispute between another union and a carrier to participate in or be bound by the proceeding. This is '(o)ne thing (that) is unquestioned' according to the opinion of this Court in Whitehouse v. Illinois Cent. R. Co., 349 U.S. 366, 372, 75 S.Ct. 845, 849, 99 L.Ed. 1155 (1955).10 In that case, a dispute had arisen between the telegraphers and the respondent railroad because the railroad employed members of the clerks' union for jobs which the telegraphers claimed should have been allotted to its members under its collective bargaining agreement with the railroad. In due course, the telegraphers submitted the dispute to the Railroad Adjustment Board. Before a decision was announced by the Board, the railroad brought an action in the United States District Court to compel the Board to notify the clerks, asserting that otherwise the railroad might have to face a similar claim from the clerks. This Court held that the action was premature; but it pointed out that 'One thing is unquestioned. Were notice given to Clerks they could be indifferent to it; they would be within their legal rights to refuse to participate in the present proceeding.' 349 U.S. at 372, 75 S.Ct. at 849. It said, flatly, that 'The Board has jurisdiction over the only necessary parties to the proceeding (i.e., the telegraphers' union) and over the subject matter.' Id., 349 U.S. at 373, 75 S.Ct. at 850. In substance, the Court in the present case repudiates Whitehouse for reasons, not of law, but of assumed practical administrative symmetry and its own conceptions as to what is fair in a complex industrial situation. Labor relations are not susceptible of reduction to such simplicities; and with all deference this Court should fear to tread this path.
38
This is much more than a procedural matter. It is even more than whether the clerks can be subjected to a proceeding to which they assert they are strangers and to which Congress did not intend that they be subjected. The Court today rules that whatever the collective bargaining agreements provide—regardless of their provisions, and of the understanding of the parties—the Board must award the disputed work to one union or the other, and that it cannot provide a remedy to members of both, even if their contracts should so demand.
39
This may sound eminently reasonable at first hearing. But it may be both unfair and highly disruptive. Certainly, there is not a line, a word, in the Railway Labor Act which supports it. Let us suppose, for example, in the present situation that each IBM machine required one operator, and that the machine and the one operator performed both clerical and telegraphic services, displacing a telegrapher and a clerk. I know of absolutely no warrant for the Court's statement that the Board must 'settle the entire dispute' by determining 'which union has the right to the job' even if 'both unions * * * under their separate agreements, have the right to perform the new job. * * *' On the contrary, regardless of what the clerks' contract provides,11 if the telegraphers' contract also establishes their right to the job which is entirely conceivable—the telegraphers are entitled to compensation. It is entirely possible that since the Board, as I have discussed, is limited to construing and applying the agreements between each union and the carrier, it may indeed find that it has to require payment to members of one union for jobs actually performed by members of the other union. In that event, a sensible remedy would have to await negotiation between the union or unions and the carrier to eliminate the overlap and featherbedding.12 But I repeat—the Board's task is to construe and apply the agreements, not to rewrite them, even to eliminate overlaps and duplications; nor is it the function of this Court to add new powers to those vested in the Board by Congress, or to impose upon the intricate and technical contracts of railway labor a new and unauthorized substantive principle.
40
I would reverse and remand for further proceedings in the District Court, consistent with the views expressed herein, with respect to the telegraphers' prayer for enforcement of the Board's award.
1
This section provides:
'The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, * * * shall be handled in the usual manner * * * but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes.' 44 Stat. 578, as amended, 48 Stat. 1191, 45 U.S.C. § 153 First (i).
2
Section 3 First (j) of the Act, 45 U.S.C. § 153 First (j), requires the Adjustment Board to 'give due notice of all hearings to the employee or employees and the carrier or carriers involved in any disputes submitted to them.' (Emphasis supplied.) Prior to this case it was the policy of the various railroad unions, including the clerks' and telegraphers', in work-assignment disputes submitted to the Board, to refuse to give notice of and to prohibit participation in Board proceedings by anyone but the involved railroad and the petitioning union. This policy, followed by the labor members of the Board, resulted in no notice being given to the nonpetitioning union. See Whitehouse v. Illinois Cent. R. Co., 349 U.S. 366, 372, 75 S.Ct. 845, 849, 99 L.Ed. 1155. In 1959, after some courts had refused to enforce the Board's awards where it had failed to notify the nonpetitioning union, see, e.g., Order of R.R. Telegraphers v. New Orleans, T. & M. Ry. Co., 8 Cir., 229 F.2d 59, cert. denied, 350 U.S. 997, 76 S.Ct. 548, 100 L.Ed. 861, the Railway Labor Executives' Association, composed of the various railroad unions, changed this policy to the extent that notice would henceforth be given to nonpetitioning unions. Yet the Railway Labor Executives' Association prescribed a form-letter response—to be sent by the notified nonpetitioning union to the Board—which disavowed any interest in the dispute and declined the opportunity to participate before the Board except in a subsequent and separate proceeding initiated by the nonpetitioning union in the event the Board's decision adversely affected its members' jobs. The clerks' union used this form letter to respond to the § 3 First (j) notice in the instant case.
3
The Court of Appeals' controlling opinion is reported at 349 F.2d 408. A prior opinion which was withdrawn is unofficially reported at 59 L.R.R.M. 2993.
4
The Court of Appeals in affirming the dismissal of the telegraphers' union's petition for enforcement was quite correct in holding that the failure of the clerks to appear before the Board and of the Board to consider the contract between the clerks and the railroad could not be cured merely by joinder of the clerks' union in the District Court's enforcement proceeding. The Board had the exclusive jurisdiction to consider the clerks' contract and any claim they might have asserted under it. At the time, the Court of Appeals had no alternative but to affirm the dismissal by the District Court, for district courts could only 'enforce or set aside' the Board's orders under § 3 First (p). They could not remand cases to the Board. This was changed on June 20, 1966, by Pub.L. No. 89—456, § 2(e), 80 Stat. 209, which inserted a new provision, § 3 First (q), empowering district courts to remand proceedings to the Board. In view of the Board's failure to consider all of the issues and the clerks' understandable refusal to participate because of the then existing doubt as to whether they could be bound by the Board's decision, we conclude it appropriate to use this new availability of remand to the Board.
*
Among the rules of the Telegraphers' Agreement invoked in this dispute, the following are the most relevant:
ARTICLE 1—SCOPE.
Rule 1. This agreement will govern the wages and working conditions of agents, agent-telegraphers, agent-telephoners, telegraphers, telephoners, telegrapher-clerks, telephoner-clerks, telegrapher-car distributors, ticket clerk-telegraphers, telegrapher-switch-tenders, C.T.C. telegraphers, train and tower directors, towermen, lever-
men, block operators, staffmen, managers, wire chiefs, repeater chiefs, chief operators, printer mechanicians, telephone operators (except switchboard operators), teletype operators, printer operators, agents non-telegraphers, and agents non-telephoners herein listed.
ARTICLE 2—POSITIONS AND RATES OF PAY.
Rule 5. General Telegraph Offices. (a) Positions and rates of pay in general telegraph offices under the jurisdiction of the Superintendent Telegraph shall be as follows:
4 Las Vegas "VG"
Manager...................... 2.127
2d chief operator-printer m(e)chn. 1.995
3d chief operator-printer mechn. 1.995
Telegrapher................. 1.851
Rule 6. New Positions. The wages of new positions shall be in conformity with the wages of positions of similar kind or class in the seniority district where created.
ARTICLE 3—TIME ALLOWANCES.
Rule 10. Daily Guarantee. Regularly assigned employes will receive eight hours pay for each twenty-four hours, at rate of position occupied, * * *.
ARTICLE 6—SENIORITY.
Rule 47. Promotion. (a) Promotion shall be based on seniority and qualifications; qualifications being sufficient, seniority will prevail.
ARTICLE 8—GENERAL.
Rule 62. Train Orders. No employe other than covered by this schedule and train dispatchers will be permitted to handle train orders at telegraph or telephone offices where an operator is employed, and is available, or can be promptly located, except in an emergency, in which case the telegrapher will be paid for the call.
Rule 70. Date Effective and Change. This agreement will be effective as of January 1, 1952, and shall continue in effect until it is changed as provided herein, or under the provisions of the Railway Labor Act.
1
The Court of Appeals' opinion asserts that the Board's rules of evidence excluded other contracts, and that the Board dealt with the case as it the clerks' contract did not exist. There is nothing in the record which suggests that at any time, in any way the Board excluded references to the clerks' contract or treated it as irrelevant. If the Court of Appeals were correct as to the Board's rules, those rules would plainly be contrary to law and common-sense evidentiary principles. The railroad's submission to the Board, in demanding that notice be given the clerks' union (as it was), specifically invoked the clerks' contract, and stated that the relief sought by the telegraphers 'would abrogate the agreement negotiated between the carrier and the Clerks' Organization * * *.'
2
Actually, the Board functions in divisions, each responsible for a specified group of trades within the railroad world. § 3 First (h).
3
Sections 3 First (i), (m) as amended by the Act of June 20, 1966 (80 Stat. 208). Prior to this amendment 'money awards' were excluded from the scope of the quoted language.
4
There are a few minor exceptions not relevant here. For example, the Board can interpret its own awards. § 3 First (m).
5
In Whitehouse v. Illinois Cent. R. Co., 349 U.S. 366, 75 S.Ct. 845, 99 L.Ed. 1155 (1955), this Court cautioned against analogies drawn from other industries to railroad problems: 'Both its history and the interests it governs show the Railway Labor Act to be unique. 'The railroad world is like a state within a state. Its population of some three million, if we include the families of workers, has its own customs and its own vocabulary, and lives according to rules of its own making.' Garrison, The National Railroad Adjustment Board: A Unique Administrative Agency, 46 Yale L.J. 567, 568—569.' 349 U.S. at 371, 75 S.Ct. at 849.
6
But cf. Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964), in which the Court held that a union could obtain a court order to compel arbitration of a similar type of dispute, under an arbitration provision of a collective bargaining agreement between itself and the employer, despite the fact that the arbitration proceeding would not bind the other contending union.
7
The Board has no jurisdiction over so-called 'major' disputes which are outside the collective bargaining contract framework—for example, a dispute as to whether the contract should be changed. See Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, 722 728, 65 S.Ct. 1282, 1289—1292, 89 L.Ed. 1886 (1945), adhered to on rehearing, 327 U.S. 661, 66 S.Ct. 721, 90 L.Ed. 928 (1946). To the extent that resolution of such disputes is subjected to a legal structure, it is the National Mediation Board, not the Railroad Adjustment Board, which is the responsible federal agency under the Railway Labor Act.
8
The Board, with its peculiar bipartisan, private composition, §§ 3 First (a)—(h), is perhaps suited to this task, but one might question whether it would be appropriate for a larger role. For instance, since each division of the Board is composed of an equal number of railroad union and carrier representatives, and makes awards by majority vote, if the union representatives on the division were split—if, for example, either union had a representative on the division who disagreed with the other union representatives on the merits of the dispute—the carrier representatives would then have controlling voting power and could in effect allocate the work to whichever union they chose.
9
The two Boards are utterly different. Some of the differences are adverted to in the text, and others are suggested by nn. 7 and 8, supra. The essential difference is between a permanent institutionalized arbitrator for settling disputes arising from a contractual relationship, and an administrative agency established to implement various defined public policies specified by Congress.
10
I suppose that if this Court says that the Board has power to subject another union to the proceedings, that would end the matter. But the effectiveness of our ipse dixit would not justify it.
11
Of course, the clerks' contract may be relevant to construction of the telegraphers' contract, under the Pitney case.
12
Under the Railway Labor Act, such contractual renegotiation would be a 'major' dispute, subject to the jurisdiction of the Mediation Board, not the Adjustment Board. See n. 7, supra. See also, Order of Railroad Telegraphers v. Chicago & N.W.R. Co., 362 U.S. 330, 80 S.Ct. 761, 4 L.Ed.2d 774 (1960), where the Court upheld the telegraphers' right to strike to compel bargaining on a proposed contract change which would have prevented the railroad from abolishing any position in existence before a certain date. The Court held this was a 'major dispute' covering a legitimate subject of collective bargaining within the contemplation of the Railway Labor Act, and therefore within the anti-injunction provisions of §§ 4, 8 and 13(c) of the Norris-LaGuardia Act, 47 Stat. 70, 72, 73 (1932), 29 U.S.C. §§ 104, 108, 113(c). It rejected the railroad's argument that the union's demand did not create a legitimate 'labor dispute' within Norris-LaGuardia because it sought to perpetuate 'wasteful' and 'unnecessary' jobs.
| 89
|
385 U.S. 149
87 S.Ct. 382
17 L.Ed.2d 258
UNITED STATES, Petitioner,v.Stephen Robert DEMKO.
No. 76.
Argued Nov. 8, 1966.
Decided Dec. 5, 1966.
Richard S. Salzman, Asst. Atty. Gen., for petitioner.
Gerald N. Ziskind, Pittsburgh, Pa., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
The respondent Demko, a federal prisoner, was seriously injured in 1962 in the performance of an assigned prison task in a federal penitentiary. Shortly afterward he filed a claim for compensation benefits under 18 U.S.C. § 4126. That law, first enacted by Congress in 1934, authorized the Federal Prison Industries, Inc., a federal corporation, to use its funds 'in paying, under rules and regulations promulgated by the Attorney General, compensation * * * to inmates or their dependents for injuries suffered in any industry.'1 Under that law and regulations promulgated under it, respondent was awarded $180 per month which was to start on discharge from prison and continue so long as disability continued.2 After winning this compensation award, respondent brought this action against the United States in the Federal District Court under the Federal Tort Claims Act,3 alleging that his injury was due to the Government's negligence for which he was entitled to recover additional damages under that Act. The United States defended on the single ground that respondent's right to recover compensation under 18 U.S.C. § 4126 was his exclusive remedy against the Government barring him from any suit under the Federal Tort Claims Act. The District Court, holding that compensation under 18 U.S.C. § 4126 was not his exclusive remedy, rejected this defense and accordingly entered a judgment for the respondent against the United States for tort claim damages based on stipulated facts. The Court of Appeals for the Third Circuit affirmed. 350 F.2d 698. Subsequently the Court of Appeals for the Second Circuit, in Granade v. United States, 356 F.2d 837, reached precisely the opposite result, holding that a prison inmate, injured in prison employment and eligible for compensation under 18 U.S.C. § 4126, is precluded from suing under the Federal Tort Claims Act. To resolve this conflict we granted certiorari. 383 U.S. 966, 86 S.Ct. 1275, 16 L.Ed.2d 307.
2
Historically, workmen's compensation statutes were the offspring of a desire to give injured workers a quicker and more certain recovery than can be obtained from tort suits based on negligence and subject to common-law defenses to such suits. Thus compensation laws are practically always thought of as substitutes for, not supplements to, common-law tort actions. A series of comparatively recent cases in this Court has recognized this historic truth and ruled accordingly. 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, for instance, are typical of the recognition by this Court that the right of recovery granted groups of workers covered by such compensation laws is exclusive. Such rulings of this Court have established as a general rule the exclusivity of remedy under such compensation laws.4 In Johansen v. United States, supra, 343 U.S. at 441, 72 S.Ct. at 857, this Court stated that where 'the Government has created a comprehensive system to award payments for injuries, it should not be held to have made exceptions to that system without specific legislation to that effect.' Later in Patterson v. United States, supra, 359 U.S. at 496, 79 S.Ct. at 937, this Court emphatically refused to abandon the Johansen ruling, calling attention to the fact that Congress by specific statute could change the Johansen 'policy at any time.' Consequently we decide this case on the Johansen principle that, where there is a compensation statute that reasonably and fairly covers a particular group of workers, it presumably is the exclusive remedy to protect that group.
3
There is no indication of any congressional purpose to make the compensation statute in 18 U.S.C. § 4126 non-exclusive. It was enacted in 1934, and provided for injured federal prisoners the only chance they had to recover damages of any kind. Its enactment was 12 years prior to the 1946 Federal Tort Claims Act. There is nothing in the legislative history of this latter Act which pointed to any purpose to add tort claim recovery for federal prisoners after they had already been protected by 18 U.S.C. § 4126. Indeed to hold that the 1946 Federal Tort Claims Act was designed to have such a supplemental effect would be to hold that injured prisoners are given greater protection than all other government employees who are protected exclusively by the Federal Employees' Compensation Act,5 a congressional purpose not easy to infer.
4
The court below refused to accept the prison compensation law as an exclusive remedy because it was deemed not comprehensive enough. We disagree. That law, as shown by its regulations, its coverage and the amount of its payments to the injured and their dependents, compares favorably with compensation laws all over the country.6 While there are differences in the way it protects its beneficiaries, these are due in the main to the differing circumstances of prisoners and nonprisoners. That law, as the Solicitor General points out, offers far more liberal payments than many of the state compensation laws, and its standard of payments for prisoners rests on the schedules of payment of the Federal Employees' Compensation Act which Congress has provided to take care of practically all government employees. This particular federal compensation law, created to meet, in the accepted fashion of such laws, the special need of a class of prisoners, has now for more than 30 years functioned to the satisfaction of Congress, except as Congress broadened its coverage in 1961.7 Until Congress decides differently we accept the prison compensation law as an adequate substitute for a system of recovery by common-law torts.
5
The court below was of the opinion that its holding was required by United states v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805. We think not. Whether a prisoner covered by the prison compensation law could also recover under the Federal Tort Claims Act was neither an issue in nor decided by Muniz. As our opinion in Muniz noted, neither of the two prisoners there was covered by the prison compensation law. What we decided in Muniz was that the two prisoners there involved, who were not protected by the prison compensation law, were not barred from seeking relief under the Federal Tort Claims Act. However, that is not this case. The decision in Muniz could not possibly control our decision here because respondent is protected by the prison compensation law.8 All other arguments of respondent have been considered but we find none sufficient to justify recovery under the Federal Tort Claims Act. The judgments of the courts below are reversed with direction to sustain the Government's defense that respondent's recovery under the prison compensation law is exclusive.
6
Reversed.
7
Mr. Justice WHITE, whom Mr. Justice DOUGLAS joins, dissenting.
8
United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805, held that action under the Federal Tort Claims Act was available to federal prisoners injured by the negligence of government employees. Given that case, the respondent, who was injured by government negligence while a federal prisoner, is entitled to relief unless the compensation available to him under 18 U.S.C. § 4126 is his exclusive remedy, a proposition which rests on the intent of Congress to give § 4126 that effect. Certainly the section does not in so many words exclude other remedies; and in my view exclusivity should not be inferred, for § 4126 is neither comprehensive nor certain and does not meet the tests of Johansen v. United States, 343 U.S. 427, 72 S.Ct. 849, 96 L.Ed. 1051, and of Patterson v. United States, 359 U.S. 495, 79 S.Ct. 936, 3 L.Ed.2d 971. Section 4126 permits, but does not require, the application of prison industries income to some form of compensation scheme. The scheme adopted by the Attorney General applies to only a limited class of prisoners—those doing prison industry, maintenance, or similar work. A prisoner injured in prison industry work gets no compensation under the plan until he is released and none then if he has completely recovered. Furthermore, his payments stop if he is reincarcerated. If he dies while in prison, he gets nothing at all. On the other hand, if a prisoner is injured by the negligence of a prison guard and is not covered by the § 4126 plan, he may sue and recover under the Tort Claims Act. Recovery is his and when he gets it, he keeps it whether or not he dies before his prison term expires and whether or not he is released and then again imprisoned.
9
Essentially, I agree with Judge Freedman, who wrote the opinion for the Court of Appeals for the Third Circuit. The following is a passage from his opinion:
10
'Congress in adopting the amendment of 1961 to § 4126 gave no express indication that the compensation authorized by it was to be exclusive, and its provisions preclude the imputation of any such intention. The compensation scheme for prisoners is very different from the compensation system for servicemen which was described in Feres v. United States as being 'simple, certain, and uniform' (340 U.S. 135, at 144, 71 S.Ct. 153, 95 L.Ed. 152) at the time the Federal Tort Claims Act was passed in 1946. It is also vastly different from the right to compensation enjoyed by government employes under the Federal Employees' Compensation Act. It is permissive rather than mandatory. The amount of the award rests entirely within the discretion of the Attorney General, but may not under the statute exceed the amount payable under the Federal Employees' Compensation Act. Compensation is paid only upon the inmate's release from prison and will be denied if full recovery occurs while he is in custody and no significant disability remains after his release. There is no provision for the claimant to have a personal physician present at his physical examination, and there is no opportunity for administrative review. Finally, compensation, even when granted, does not become a vested right, but is to be paid only so long as the claimant conducts himself in a lawful manner and may be immediately suspended upon conviction of any crime, or upon incarceration in a penal institution.
11
'What emerges on examination, therefore, is a severely restrictive system of compensation permeated at all levels by the very prison control and dominion which was at the origin of the inmate's injury. This discretionary and sketchy system of compensation, which would not even have covered the present plaintiff in 1946, may not be deemed the equivalent of compensation under the Federal Employees' Compensation Act of 1916. Nowhere can there be found any indication that Congress intended that it should serve to exclude prisoners from the broad and sweeping policy embodied in the Federal Tort Claims Act.' 350 F.2d 698, 700—701. (Footnotes omitted.)
12
Nor does respondent claim the right to cumulate his remedies; he concedes that recovery under the compensation scheme must be offset against any negligence award he would otherwise receive.
13
Respectfully, I dissent.
1
Act of June 23, 1934, c. 736, § 4, 48 Stat. 1211. The Federal Prison Industries was established as a District of Columbia corporation and a 'governmental body' to expand an industrial training and rehabilitation program for prisoners initiated by the Act of May 27, 1930, c. 340, 46 Stat. 391.
2
On August 1, 1966, Federal Prison Industries, Inc., raised respondent's award to $245.31 per month under authority of the Act of July 4, 1966, 80 Stat. 252, amending the Federal Employees' Compensation Act, 39 Stat. 742, as amended, 5 U.S.C. § 751 et seq.
3
28 U.S.C. §§ 1346(b), 2671 et seq.
4
The lower federal courts have held, uniformly, that persons for whom the Government has supplied an administrative compensation remedy are precluded from seeking recovery against the United States for injuries received in the course of their work under the Federal Tort Claims Act, the Jones Act, the Suits in Admiralty Act, or the Public Vessels Act. Jarvis v. United States, 5 Cir., 342 F.2d 799, cert. denied, 382 U.S. 831, 86 S.Ct. 70, 15 L.Ed.2d 75; Rizzuto v. United States, 10 Cir., 298 F.2d 748; Lowe v. United States, 5 Cir., 292 F.2d 501; Somma v. United States, 3 Cir., 283 F.2d 149; Mills v. Panama Canal Co., 2 Cir., 272 F.2d 37, cert. denied 362 U.S. 961, 80 S.Ct. 877, 4 L.Ed.2d 876; United States v. Forfari, 9 Cir., 268 F.2d 29, cert. Denied, 361 U.S. 902, 80 S.Ct. 211, 4 L.Ed.2d 157; Balancio v. United States, 2 Cir., 267 F.2d 135, cert. denied, 361 U.S. 875, 80 S.Ct. 139, 4 L.Ed.2d 114; Aubrey v. United States, 103 U.S.App.D.C. 65, 254 F.2d 768; United States v. Firth, 9 Cir., 207 F.2d 665; Lewis v. United States, 89 U.S.App.D.C. 21, 190 F.2d 22, cert. denied, 342 U.S. 869, 72 S.Ct. 110, 96 L.Ed. 653. See also Gradall v. United States, 329 F.2d 960, 963, 161 Ct.Cl. 714; Denenberg v. United States, 305 F.2d 378, 379—380, 158 Ct.Cl. 401.
5
39 Stat. 742, as amended, 5 U.S.C. § 751 et seq.
6
The regulations governing awards of workmen's compensation to federal prisoners appear at 28 CFR §§ 301.1—301.10 (1965 rev.).
7
In 1961 Congress expanded the coverage of 18 U.S.C. § 4126 to include not only prisoners' injuries suffered in 'any industry' but also in 'any work activity in connection with the maintenance or operation of the institution where confined.' Act of September 26, 1961, 75 Stat. 681. 18 U.S.C. § 4126.
8
In this case, the Government stipulated that respondent's 'right to compensation pursuant to 18 U.S.C. (s) 4126 is not affected by this suit. Regardless of the outcome of this suit (respondent) will have the same right to compensation as if suit had not been instituted.'
| 78
|
385 U.S. 192
87 S.Ct. 362
17 L.Ed.2d 290
Lawrence LONG, Petitioner,v.The DISTRICT COURT OF IOWA, IN AND FOR LEE COUNTY, FORT MADISON, IOWA.
No. 77.
Argued Nov. 9, 1966.
Decided Dec. 5, 1966.
Ronald L. Carlson, Iowa City, Iowa, for petitioner.
Don R. Bennett, Des Moines, Iowa, for respondent.
PER CURIAM.
1
Petitioner was convicted of larceny and sentenced on October 21, 1963, to a term not to exceed five years. This conviction was affirmed on appeal to the Supreme Court of Iowa (State v. Long, 256 Iowa 1304, 130 N.W.2d 663 (1964)), and petitioner is currently serving his sentence in the state penitentiary. On January 13, 1965, petitioner sought a writ of habeas corpus in the District Court of Iowa, Lee County, and contended, inter alia, that he had been denied counsel at the preliminary hearing and that he himself had been incompetent at the time. After an evidentiary hearing at which petitioner was not afforded the assistance of court-appointed counsel, the District Court found against petitioner on the facts of his claims.1 Petitioner thereupon applied to the District Court for appointment of counsel and for a free transcript of the habeas corpus proceeding, for use on appeal. The District Court denied these motions on the following ground: 'Habeas corpus being a civil action there is no provision in the law for the furnishing of a transcript without the payment of fee, or for the appointment of counsel.' Petitioner sought certiorari to review this decision from the Supreme Court of Iowa. Certiorari was denied without opinion2 by that court.3 On petition for a writ of certiorari to the Supreme Court of Iowa, this Court granted the writ limited solely to the refusal to furnish petitioner, an indigent, with a transcript of the habeas corpus proceeding, for purpose of appeal.
2
The judgment below must be reversed. The State properly concedes that under our decisions in Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961), and Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963), 'to interpose any financial consideration between an indigent prisoner of the State and his exercise of a state right to sue for his liberty is to deny that prisoner the equal protection of the laws.' Smith v. Bennett, supra, 365 U.S. at 709, 81 S.Ct., at 896. We specifically held in Smith that having established a post-conviction procedure, a State cannot condition its availability to an indigent upon any financial consideration. And we held in Lane that the same rule applies to protect an indigent against a financial obstacle to the exercise of a state-created right to appeal from an adverse decision in a post-conviction proceeding.
3
In Lane v. Brown, supra, 372 U.S., at 483, 83 S.Ct., at 772, the Court reaffirmed the fundamental principle of Griffin v. People of State of Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 591, 100 L.Ed. 891 (1956), that 'Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.' The Court in Lane went on to observe that Smith had established 'that these principles were not to be limited to direct appeals from criminal convictions, but extended alike to state postconviction proceedings.' 372 U.S., at 484, 83 S.Ct., at 773. See also Eskridge v. Washington State Board, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958); Burns v. State of Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209 (1959); Draper v. State of Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963).
4
The State suggests that there may be alternative ways of preparing, for purposes of appeal, an account of the relevant proceeding at the trial level. Cf. Draper v. State of Washington, supra. In the present case, a transcipt is available and could easily have been furnished. We need not consider a possible situation where a transcript cannot reasonably be made available and adequate alternatives are made available by the State. Accordingly, the judgment below must be reversed and the cause remanded to the Supreme Court of Iowa for further proceedings not inconsistent with this opinion.
5
Reversed and remanded.
1
As to the claim of lack of counsel at the preliminary hearing, the State now concedes that petitioner was not in fact represented at that time (although the District Court found to the contrary). Petitioner alleged in his petition for habeas corpus that a guilty plea obtained at the preliminary hearing was introduced as an admission at his criminal trial. The State concedes that if this is true, petitioner 'probably is entitled to relief in habeas corpus under White v. (State of) Maryland, 373 U.S. 59 (83 S.Ct. 1050, 10 L.Ed.2d 193).' The Attorney General of Iowa has ruled that White is applicable to preliminary hearings in Iowa because guilty pleas, if made at that time, may later be used as admissions of guilt. 1964 Opinions of the Attorney General of Iowa 160 (October 5, 1964).
2
The court's order reads: 'Petition for certiorari filed, considered, and denied. See in this connection, Waldon v. District Court of Lee County, Iowa, 130 N.W.2d 728.' The Waldon case held only that a State need not provide appointed counsel on appeal from the denial of habeas corpus; it does not so much as refer to the transcript problem, to which this Court limited the grant of certiorari in this case.
3
Petitioner's notice of appeal to the Supreme Court of Iowa was timely and properly filed. His appeal is pending before that court, and disposition has been stayed until the outcome of this preliminary case.
| 12
|
385 U.S. 138
87 S.Ct. 350
17 L.Ed.2d 249
UNITED STATES, Petitioner,v.ACME PROCESS EQUIPMENT COMPANY.
No. 86.
Argued Nov. 9, 1966.
Decided Dec. 5, 1966.
Rehearing Denied Jan. 16, 1967.
See 385 U.S. 1032, 87 S.Ct. 738.
Sol. Gen. Thurgood Marshall, for petitioner.
Jack Rephan, Washington, D.C., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
The respondent, Acme Process Equipment Company, brought this action against the United States in the Court of Claims to recover damages for breach of a contract under which Acme undertook through itself and subcontractors to manufacture 2,751 75-mm. recoilless rifles for about $337 per rifle. Among other defenses, the United States alleged that it had rightfully canceled its contract with Acme because three of Acme's principal employees had accepted compensation for awarding subcontracts in violation of the Anti-Kickback Act set out in part below.1 The Court of Claims found, as facts, that the kickbacks had been paid as alleged and that this was the ground on which the United States had canceled the prime contract with Acme, but construed the Act as not authorizing the cancellation. 347 F.2d 509, 171 Ct.Cl. 324. We hold that it does.
I.
2
In October 1952, Acme hired Harry Tucker, Jr., and his associate, James Norris, for the purpose of establishing and managing a new division of the company to handle government contracts. Norris was made general manager of production with authority to submit bids, sign government contracts, and award subcontracts. Tucker was placed in charge of sales, government contracts, and expediting subcontract operations. Prior to this time Tucker had entered into a contract with All Metals Industries, Inc., under which he was to rceive a commission for all sales to customers, including Acme, procured by him. Tucker's employment contract with Acme specifically stated that he represented and would continue to represent firms in other lines of business, but Acme did not consult with any of his other clients at the time Tucker was hired.
3
Late in October, Tucker advised his superiors at Acme of the proposed Army contract for rifles, and at Tucker's suggestion, Acme submitted a bid of $337 per rifle. Since Acme's bid was the lowest, the Army began negotiations with Acme culminating in the award of the contract in January 1953. The negotiations were handled by Tucker and Norris for Acme. Since it was contemplated that the project would be largely subcontracted, leaving to Acme only the final finishing and assembly of components, the Army expressed a keen interest in Acme's proposed subcontractors. Not only did it review Acme's subcontracting plans and require Acme to notify it of changes in those plans during the final stages of negotiation, but the contract eventually awarded required government approval of all subcontracts in excess of $25,000. All Metals, because its proposed subcontract amounted to one-third of the amount of the prime contract, actually participated in the negotiations between Acme and the Army.
4
During this period of negotiation two other developments took place. Tucker obtained agreements from two other potential subcontractors to pay him commissions on any orders he could procure from Acme. Army contracting officers warned Acme's president, Joshua Epstein, that Tucker was suspected of having engaged in contingent-fee arrangements with other government contractors.
5
Finally, Acme was awarded the prime contract. Although the price was fixed at $337 per rifle, the contract contained a price redetermination clause under which, after 30% of the rifles were delivered, the parties could negotiate the price on past and future shipments upward or downward, with an upper limit of $385 per rifle. Within a few weeks after the prime contract was awarded, All Metals and the other two companies with which Tucker had prior kickback arrangements obtained subcontracts from Acme.2 Tucker was paid his kickbacks, but, apparently unsatisfied with the amount of his payoff, he got Jack Epstein, the superintendent of the chief Acme plant and the son of Acme's president and principal stockholder, to join the kickback conspiracy. Together Epstein and Tucker threatened to cancel All Metals' subcontract unless it paid $25,000 to a dummy corporation owned by Tucker, Norris, and Epstein for fictitious consulting services. All Metals reluctantly acceded to the shakedown. The amount paid to Tucker, Norris, and Epstein was charged to Acme through an increase in the subcontract price.
6
Although they knew that Tucker was representing other companies and had been notified of the Army's suspicions of Tucker's involvement in contingentfee arrangements, other officials of Acme were not aware of the kickback activities of Tucker, Norris, and Epstein until late in 1953. At that time, Acme's president caused the resignation of the three suspected officials.
7
In 1956 Tucker, Norris, and Epstein were indicted for violation of the then Anti-Kickback Act, 60 Stat. 37.3 After presentation of the Government's case, the District Court granted the defendants' motion for acquittal on the ground that the Act—which at that time embraced only 'cost-plus-a-fixed-fee or other cost reimbursable' government contracts—did not apply to Acme's contract, a fixed-price contract with a provision for limited price redetermination. The court found the defendants' actions 'despicable and morally reprehensible, but unfortunately within the narrow letter of the law.' The court recommended that Congress amend the Anti-Kickback Act 'to include as a crime the vicious and immoral type of conduct that has been exhibited in this case.' United States v. Norris, Crim. No. 18535 (D.C.E.D.Pa.), April 14, 1956.
8
The District Court's opinion did indeed spur the Comptroller General to recommend amendatory legislation and in 1960 the Anti-Kickback Act was amended to apply to all 'negotiated contracts.'4 The civil provision of the amended Act was made retroactive to allow government recovery of kickbacks 'whether heretofore or hereafter paid or incurred by the subcontractor.'
II.
9
The Anti-Kickback Act, as originally passed in 1946 and as amended in 1960, provides two express sanctions for its violation: (1) fine or imprisonment for one who makes or receives a kickback, and (2) recovery of the kickback by the United States. The Court of Claims held, and it is argued here, that had Congress wanted 'to provide the additional remedy of contract annulment, it could have done so' by express language, 347 F.2d, at 521, 171 Ct.Cl. 343, and of course it could have. But the fact that it did not see fit to provide for such a remedy by express language does not end the matter. The Anti-Kickback Act not only 'prohibited' such payments, but clearly expressed a policy decidedly hostile to them. They were recognized as devices hurtful to the Government's procurement practices. Extra expenditures to get subcontracts necessarily add to government costs in cost-plus-a-fixed-fee and other cost reimbursable contracts. And this is also true where the prime contract is a negotiated fixed-price contract with a price redetermination clause, such as the prime contract is here. The kickbacks here are passed on to the Government in two stages. The prime contractor rarely submits his bid until after he has tentatively lined up his subcontractors. Indeed, as here, the subcontractors frequently participate in negotiation of the prime contract. The subcontractor's tentative bid will, of course, reflect the amount he contemplates paying as a kickback, and then his inflated bid will be reflected in the prime contractor's bid to the Government. At the renegotiation stage, where the prime contractor's actual cost experience is the basis for price redetermination, any kickbacks, paid by subcontractors and passed on to the prime contractor after the prime contract is awarded, will be passed on to the Government in the form of price redetermination upward.5
10
Acme argues, however, that the express provision for recovery of kickbacks is enough to protect the Government from increased costs attributable to them. But this argument rests on two false assumptions. The first is that kickbacks can easily be detected and recovered. This is hardly the case. Kickbacks being made criminal means that they must be made—if at all—in secrecy. Though they necessarily inflate the price to the Government, this inflation is rarely detectable. This is particularly true as regards defense contracts where the products involved are not usually found on the commercial market and where there may not be effective competiton. Such contracts are generally negotiated and awarded without formal advertising and competitive bidding, and there is often no opportunity to compare going prices with the price negotiated by the Government.6 Kickbacks will usually not be discovered, if at all, until after the prime contract is let. The second false assumption underlying Acme's argument is that the increased cost of the Government is necessarily equal to the amount of the kickback which is recoverable. Of course, a subcontractor who must pay a kickback is likely to include the amount of the kickback in his contract price. But this is not all. A subcontractor who anticipates obtaining a subcontract by virtue of a kickback has little incentive to stint on his cost estimates. Since he plans to obtain the subcontract without regard to the economic merits of his proposal, he will be tempted to inflate that proposal by more than the amount of the kickback. And even if the Government could isolate and recover the inflation attributable to the kickback, it would still be saddled with a subcontractor who, having obtained the job other than on merit, is perhaps entirely unreliable in other ways. This unreliability in turn undermines the security of the prime contractor's performance a result which the public cannot tolerate, especially where, as here, important defense contracts are involved.
III.
11
In United States v. Mississippi Valley Co., 364 U.S. 520, 563, 81 S.Ct. 294, 316, 5 L.Ed.2d 268, the Court recognized that 'a statute frequently implies that a contract is not to be enforced when it arises out of circumstances that would lead enforcement to offend the essential purpose of the enactment.' The Court there approved the cancellation of a government contract for violation of the conflict-of-interest statute on the ground that 'the sanction of nonenforcement is consistent with and essential to effectuating the public policy embodied in' the statute. Ibid. We think the same thing can be said about cancellation here.
12
The Court of Claims, in holding that the Anti-Kickback Act does not authorize government cancellation because of its violation, distinguished Mississippi Valley Co. on the ground that the Anit-Kickback Act, unlike the conflict-of-interest statute, provides a civil as well as a criminal remedy. But we do not deem the provision of a civil remedy in the Anti-Kickback Act decisive. Where there is a mere conflict of interest, no concrete monetary rewards may have been received or paid which the Government can recover in a civil action. But where there is commercial bribery in the form of a kickback, there is something specific which the Government can recover, and hence it was quite natural for Congress to provide this express remedy. There is absolutely no indication in the legislative history of the Anti-Kickback Act that Congress, in providing a civil remedy for a more tangible evil, intended to preclude other civil sanctions necessary to effectuate the purpose of the Act.
13
There is likewise no merit to the Court of Claims' distinction of the Mississippi Valley Co. case on the ground that there the criminal provision of the conflict-of-interest statute was violated whereas here the kickback conspirators were acquitted of violating the Anti-Kickback Act as it existed when the kickbacks occurred, prior to 1960. As we have seen, Acme's employees were acquitted on the technical ground that Acme's prime contract was not a 'cost reimbursable' contract to which the Act then expressly applied. It is unnecessary for us to decide whether this holding was correct.7 For whether the kickbacks here contravened the narrow letter of the criminal law, strictly construed, they clearly were violative of the public policy against kickbacks first expressed by Congress in 1946. If Congress then limited the reach of the Act to cost reimbursable contracts, it was only because other types of negotiated contracts were rarely in use then. Though the recent extensive use of other forms of negotiated contracts led Congress in 1960 to amend the Act to cover clearly these types of contracts and to close the technical loophole opened by the acquittal of Acme's employees, the congressional policy against all kickbacks was not changed. Congress merely reiterated its recognition of the evil and sought to correct the letter of the law to effectuate its long-standing policy. In making the civil remedy of the 1960 Act retroactive, Congress clearly indicated that there had been no basic change in the public policy against kickbacks.
14
This public policy requires that the United States be able to rid itself of a prime contract tainted by kickbacks. Though the kickbacks did not take place until after the prime contract was awarded to Acme, the kickback arrangements existed either at the time the prime contract was awarded or shortly thereafter, and at least one of the kickbacking subcontractors actually participated in the negotiation of the prime contract. These circumstances, as well as the price redetermination feature of the prime contract, produced a great likelihood that the cost of the prime contract to the Government and the reliability of Acme's performance under it would be directly affected by the fact that the prime contract was to be performed largely through subcontracts obtained by kickbacks.
15
The Court of Claims, in holding that the Act does not authorize government cancellation because of kickbacks, relied heavily on its finding that none of the officers of Acme were aware of the kickbacks. But as previously stated those of Acme's employees and agents who did know were in the upper echelon of its managers. One of the guilty employees was the general manager of one of the company's chief plants and the son of Acme's president, and the two other kickback receivers were in charge of operations, sales, and government contracts. They were the kind of company personnel for whose conduct a corporation is generally held responsible. Cf. Gleason v. Seaboard Air Line R. Co., 278 U.S. 349, 49 S.Ct. 161, 73 L.Ed. 415. Since Acme selected those agents to carry on its business in obtaining and performing government contracts, there is no obvious reason why their conduct in that field should not be considered as Acme's conduct, particularly where it touches the all-important subject of kickbacks. And here, as this Court said about the conflict-of-interest statute in United States v. Mississippi Valley Co., supra, at 565, 81 S.Ct., at 317, it is appropriate to say that it is the 'inherent difficulty in detecting corruption which requires that contracts made in violation of * * * (the Anti-Kickback Act) be held unenforceable, even though the party seeking enforcement ostensibly appears entirely innocent.'
16
The judgment of the Court of Claims is reversed with directions to sustain the United States' right to cancel the prime contract.
17
It is so ordered.
18
Judgment reversed with directions.
1
Section 1 of the Anti-Kickback Act, 60 Stat. 37, as amended, 74 Stat. 740, 41 U.S.C. § 51, provides in pertinent part:
'That the payment of any fee, commission, or compensation of any kind or the granting of any gift or gratuity of any kind, either directly or indirectly, by or on behalf of a subcontractor, * * * (1) to any officer, partner, employee, or agent of a prime contractor holding a negotiated contract entered into by any department, agency, or establishment of the United States for the furnishing of supplies, materials, equipment or services of any kind whatsoever * * * as an inducement for the award of a subcontract or order from the prime contractor * * * is hereby prohibited. The amount of any such fee, commission, or compensation or the cost or expense of any such gratuity or gift, whether heretofore or hereafter paid or incurred by the subcontractor, shall not be charged, either directly or indirectly, as a part of the contract price charged by the subcontractor to the prime contractor * * *. The amount of any such fee, cost, or expense shall be recoverable on behalf of the United States from the subcontractor or the recipient thereof by setoff * * * or by an action in an appropriate court of the United States. * * *'
Section 4 of the Act, 41 U.S.C. § 54, provides:
'Any person who shall knowingly, directly or indirectly, make to receive any such prohibited payment shall be fined not more than $10,000 or be imprisoned for not more than two years, of both.'
2
Shortly after the prime contract was awarded, two other companies paid Tucker's father and Norris' assistant kickbacks for obtaining subcontracts from Acme. This made a total of five subcontracts obtained through kickbacks.
3
This was the original Anti-Kickback Act passed by Congress in 1946. It expressly prohibited kickbacks only to employees of 'a prime contractor holding a contract * * * on a cost-plus-a-fixed-fee or other cost reimbursable basis * * *.'
4
See generally H.R.Rep.No.1880, S.Rep.No.1585, 86th Cong., 2d Sess., U.S.Code Cong. & Admin.News 1960, p. 3292. The Act, as amended, is set out in part in note 1, supra.
5
This is precisely what happened here before the Government canceled Acme's contract. Acme in 1953 submitted cost data for price redetermination purposes that included the charges of the five subcontractors which had paid kickbacks to Acme's employees. These subcontracting charges in turn included the amounts paid as kickbacks. Had the kickbacks not been discovered and the contract not been canceled, Acme would have been able to use these costs to renegotiate the price per rifle from $337 to $385. Such price redetermination could have cost the Government about $132,000 more on the entire contract.
6
See S.Rep.No.1585, supra, n. 4, at 3.
7
See United States v. Barnard, 255 F.2d 583, cert. denied, 358 U.S. 919, 79 S.Ct. 287, 3 L.Ed.2d 238, holding that a fixed-price contract with provision for unlimited price redetermination is a 'cost reimbursable' contract.
| 78
|
385 U.S. 116
87 S.Ct. 339
17 L.Ed.2d 235
Julian BOND et al., Appellants,v.James 'Sloppy' FLOYD et al.
No. 87.
Argued Nov. 10, 1966.
Decided Dec. 5, 1966.
Howard Moore, Jr., Atlanta, Ga., and Leonard B. Boudin, Washington, D.C., for appellants.
Arthur K. Bolton, Griffin, Ga., for appellees.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
The question presented in this case is whether the Georgia House of Representatives may constitutionally exclude appellant Bond, a duly elected Representative, from membership because of his statements, and statements to which he subscribed, criticizing the policy of the Federal Government in Vietnam and the operation of the Selective Service laws. An understanding of the circumstances of the litigation requires a complete presentation of the events and statements which led to this appeal.
2
Bond, a Negro, was elected on June 15, 1965, as the Representative to the Georgia House of Representatives from the 136th House District. Of the District's 6,500 voters, approximately 6,000 are Negroes. Bond defeated his opponent, Malcolm Dean, Dean of Men at Atlanta University, also a Negro, by a vote of 2,320 to 487.
3
On January 6, 1966, the Student Nonviolent Coordinating Committee, a civil rights organization of which Bond was then the Communications Director, issued the following statement on American policy in Vietnam and its relation to the work of civil rights organizations in this country:
4
'The Student Nonviolent Coordinating Committee has a right and a responsibility to dissent with United States foreign policy on an issue when it sees fit. The Student Nonviolent Coordinating Committee now states its opposition to United States' involvement in Viet Nam on these grounds: 'We believe the United States government has been deceptive in its claims of concern for freedom of the Vietnamese people, just as the government has been deceptive in claiming concern for the freedom of colored people in such other countries as the Dominican Republic, the Congo, South Africa, Rhodesia and in the United States itself.
5
'We, the Student Nonviolent Coordinating Committee, have been involved in the black people's struggle for liberation and self-determination in this country for the past five years. Our work, particularly in the South, has taught us that the United States government has never guaranteed the freedom of oppressed citizens, and is not yet truly determined to end the rule of terror and oppression within its own borders.
6
'We ourselves have often been victims of violence and confinement executed by United States government officials. We recall the numerous persons who have been murdered in the South because of their efforts to secure their civil and human rights, and whose murderers have been allowed to escape penalty for their crimes.
7
'The murder of Samuel Young in Tuskegee, Ala., is no different than the murder of peasants in Viet Nam, for both Young and the Vietnamese sought, and are seeking, to secure the rights guaranteed them by law. In each case the United States government bears a great part of the responsibility for these deaths.
8
'Samuel Young was murdered because United States law is not being enforced. Vietnamese are murdered because the United States is pursuing an aggressive policy in violation of international law. The United States is no respector of persons or law when such persons or laws run counter to its needs and desires.
9
'We recall the indifference, suspicion and outright hostility with which our reports of violence have been met in the past by government officials.
10
'We know that for the most part, elections in this country, in the North as well as the South, are not free. We have seen that the 1965 Voting Rights Act and the 1964 Civil Rights Act have not yet been implemented with full federal power and sincerity.
11
'We question, then, the ability and even the desire of the United States government to guarantee free elections abroad. We maintain that our country's cry of 'preserve freedom in the world' is a hypocritical mask behind which it squashes liberation movements which are not bound, and refuse to be bound by the expediencies of United States cold war policies.
12
'We are in sympathy with, and support, the men in this country who are unwilling to respond to a military draft which would compel them to contribute their lives to United States aggression in Viet Nam in the name of the 'freedom' we find so false in this country.
13
'We recoil with horror at the inconsistency of a supposedly 'free' society where responsibility to freedom is equated with the responsibility to lend oneself to military aggression. We take note of the fact that 16 per cent of the draftees from this country are Negroes called on to stifle the liberation of Viet Nam, to preserve a 'democracy' which does not exist for them at home.
14
'We ask, where is the draft for the freedom fight in the United States? 'We therefore encourage those Americans who prefer to use their energy in building democratic forms within this country. We believe that work in the civil rights movement and with other human relations organizations is a valid alternative to the draft. We urge all Americans to seek this alternative, knowing full well that it may cost their lives—as painfully as in Viet Nam.'
15
On the same day that this statement was issued, Bond was interviewed by telephone by a reporter from a local radio station, and, although Bond had not participated in drafting the statement, he endorsed the statement in these words:
16
'Why, I endorse it, first, because I like to think of myself as a pacifist and one who opposes that war and any other war and eager and anxious to encourage people not to participate in it for any reason that they choose; and secondly, I agree with this statement because of the reason set forth in it because I think it is sorta hypocritical for us to maintain that we are fighting for liberty in other places and we are not guaranteeing liberty to citizens inside the continental United States.
17
'Well, I think that the fact that the United States Government fights a war in Viet Nam, I don't think that I as a second class citizen of the United States have a requirement to support that war. I think my responsibility is to oppose things that I think are wrong if they are in Viet Nam or New York, or Chicago, or Atlanta, or wherever.'
18
When the interviewer suggested that our involvement in Vietnam was because 'if we do not stop Communism there that it is just a question of where will we stop it next,' Bond replied:
19
'Oh, no, I'm not taking a stand against stopping World Communism, and I'm not taking a stand in favor of the Viet Cong. What I'm saying that is, first, that I don't believe in that war. That particular war. I'm against all war. I'm against that war in particular, and I don't think people ought to participate in it. Because I'm against war, I'm against the draft. I think that other countries in the World get along without a draft—England is one—and I don't see why we couldn't, too.
20
'* * * I'm not about to justify that war, because it's stopping International Communism, or whatever—you know, I just happen to have a basic disagreement with wars for whatever reason they are fought—* * * (F)ought to stop International Communism, to promote International Communism, or for whatever reason. I oppose the Viet Cong fighting in Viet Nam as much as I oppose the United States fighting in Viet Nam. I happen to live in the United States. If I lived in North Viet Nam I might not have the same sort of freedom of expression, but it happens that I live here—not there.'
21
The interviewer also asked Bond if he felt he could take the oath of office required by the Georgia Constitution, and Bond responded that he saw nothing inconsistent between his statements and the oath. Bond was also asked whether he would adhere to his statements if war were declared on North Vietnam and if his statements might become treasonous. He replied that he did not know 'if I'm strong enough to place myself in a position where I'd be guilty of treason.' Before January 10, 1966, when the Georgia House of Representatives was scheduled to convene, petitions challenging Bond's right to be seated were filed by 75 House members. These petitions charged that Bond's statements gave aid and comfort to the enemies of the United States and Georgia, violated the Selective Service laws, and tended to bring discredit and disrespect on the House. The petitions further contended that Bond's endorsement of the SNCC statement 'is totally and completely repugnant to and inconsistent with the mandatory oath prescribed by the Constitution of Georgia for a Member of the House of Representatives to take before taking his seat.' For the same reasons, the petitions asserted that Bond could not take an oath to support the Constitution of the United States. When Bond appeared at the House on January 10 to be sworn in, the clerk refused to administer the oath to him until the issues raised in the challenge petitions had been decided.
22
Bond filed a response to the challenge petitions in which he stated his willingness to take the oath and argued that he was not unable to do so in good faith. He further argued that the challenge against his seating had been filed to deprive him of his First Amendment rights, and that the challenge was racially motivated. A special committee was appointed to report on the challenge, and a hearing was hend to determine exactly what Bond had said and the intentions with which he had said it.
23
At this hearing, the only testimony given against Bond was that which he himself gave the committee. Both the opponents Bond had defeated in becoming the Representative of the 136th District testified to his good character and to his loyalty to the United States. A recording of the interview which Bond had given to the reporter after the SNCC statement was played, and Bond was called to the stand for cross-examination. He there admitted his statements and elaborated his views. He stated that he concurred in the SNCC statement 'without reservation,' and, when asked if he admired the courage of persons who burn their draft cards, responded:
24
'I admire people who take an action, and I admire people who feel strongly enough about their convictions to take an action like that knowing the consequences that they will face, and that was my original statement when asked that question.
25
'I have never suggested or counseled or advocated that any one other person burn their draft card. In fact, I have mine in my pocket and will produce it if you wish. I do not advocate that people should break laws. What I simply try to say was that I admired the courage of someone who could act on his convictions knowing that he faces pretty stiff consequences.'
26
Tapes of an interview Bond had given the press after the clerk had refused to give him the oath were also heard by the special committee. In this interview, Bond stated:
27
'I stand before you today charged with entering into public discussion on matters of National interest. I hesitate to offer explanations for my actions or deeds where no charge has been levied against me other than the charge that I have chosen to speak my mind and no explanation is called for, for no member of this House, has ever, to my knowledge, been called upon to explain his public statements for public postures as a prerequisite to admission to that Body. I therefore, offer to my constituents a statement of my views. I have not counselled burning draft cards, nor have I burned mine. I have suggested that congressionally outlined alternatives to military service be extended to building democracy at home. The posture of my life for the past five years has been calculated to give Negroes the ability to participate in formulation of public policies. The fact of my election to public office does not lessen my duty or desire to express my opinions even when they differ from those held by others. As to the current controversy because of convictions that I have arrived at through examination of my conscience I have decided I personally cannot participate in war.
28
'I stand here with intentions to take an oath—that oath they just took in there—that will dispel any doubts about my convictions or loyalty.'
29
The special committee gave general approval in its report to the specific charges in the challenge petitions that Bond's endorsement of the SNCC statement and his supplementary remarks showed that he 'does not and will not' support the Constitutions of the United States and of Georgia, that he 'adheres to the enemies of the * * * State of Georgia' contrary to the State Constitution, that he gives aid and comfort to the enemies of the United States, that his statements violated the Universal Military Training and Service Act, § 12, 62 Stat. 622, 50 U.S.C. App. § 462, and that his statements 'are reprehensible and are such as tend to bring discredit to and disrespect of the House.' On the same day the House adopted the committee report without findings and without further elaborating Bond's lack of qualifications, and resolved by a vote of 184 to 12 that 'Bond shall not be allowed to take the oath of office as a member of the House of Representatives and that Representative-Elect Julian Bond shall not be seated as a member of the House of Representatives.'
30
Bond then instituted an action in the District Court for the Northern District of Georgia for injunctive relief and a declaratory judgment that the House action was unauthorized by the Georgia Constitution and violated Bond's rights under the First Amendment. A three-judge District Court was convened under 28 U.S.C. § 2281. All three members of the District Court held that the court had jurisdiction to decide the constitutionality of the House action because Bond had asserted substantial First Amendment rights.1 On the merits, however, the court was divided.
31
Judges Bell and Morgan, writing for the majority of the court, addressed themselves first to the question of whether the Georgia House had power under state law to disqualify Bond based on its conclusion that he could not sincerely take the oath of office. They reasoned that separation-of-powers principles gave the Legislature power to insist on qualifications in addition to those specified in the State Constitution. The majority pointed out that nothing in the Georgia Constitution limits the qualifications of the legislators to those expressed in the constitution.
32
Having concluded that the action of the Georgia House was authorized by state law, the court considered whether Bond's disqualification violated his constitutional right of freedom of speech. It reasoned that the decisions of this Court involving particular state political offices supported an attitude of restraint in which the principles of separation of powers and federalism should be balanced against the alleged deprivation of individual constitutional rights. On this basis, the majority below fashioned the test to be applied in this case as being whether the refusal to seat Bond violated procedural or what it termed substantive due process. The court held that the hearing which had been given Bond by the House satisfied procedural due process. As for what it termed the question of substantive due process, the majority concluded that there was a rational evidentiary basis for the ruling of the House. It reasoned that Bond's right to dissent as a private citizen was limited by his decision to seek membership in the Georgia House. Moreover, the majority concluded, the SNCC statement and Bond's related remarks went beyond criticism of national policy and provided a rational basis for a conclusion that the speaker could not in good faith take an oath to support the State and Federal Constitutions:
33
'A citizen would not violate his oath by objecting to or criticizing this policy or even by calling it deceptive and false as the statement did.
34
'But the statement does not stop with this. It is a call to action based on race; a call alien to the concept of the pluralistic society which makes this nation. It aligns the organization with '* * * colored people in such other countries as the Dominican Republic, the Congo, South Africa, Rhodesia * * *' It refers to its involvement in the black people's struggle for liberation and self-determination * * *.' It states that 'Vietnamese are murdered because the United States is pursuing an aggressive policy in violation of international law.' It alleges that Negroes, referring to American servicemen, are called on to stifle the liberation of Viet Nam.
35
'The call to action, and this is what we find to be a rational basis for the decision which denied Mr. Bond his seat, is that language which states that SNCC supports those men in this country who are unwilling to respond to a military draft.'2
36
Chief Judge Tuttle dissented.3 He reasoned that the question of the power of the Georgia House under the State Constitution to disqualify a Representative under these circumstances had never been decided by the state courts, and that federal courts should construe state law, if possible, so as to avoid unnecessary federal constitutional issues. Since Bond satisfied all the stated qualifications in the State Constitution, Chief Judge Tuttle concluded that his disqualification was beyond the power of the House as a matter of state constitutional law.
37
Bond appealed directly to this Court from the decision of the District Court under 28 U.S.C. § 1253. While this appeal was pending, the Governor of Georgia called a special election to fill the vacancy caused by Bond's exclusion. Bond entered this election and won over-whelmingly. The House was in recess, but the Rules Committee held a hearing in which Bond declined to recant his earlier statements. Consequently, he was again prevented from taking the oath of office, and the seat has remained vacant. Bond again sought the seat from the 136th District in the regular 1966 election, and he won the Democratic primary in September 1966, and won an over-whelming majority in the election of November 8, 1966.4
38
The Georgia Constitution sets out a number of specific provisions dealing with the qualifications and eligibility of state legislators. These provide that Representatives shall be citizens of the United States, at least 21 years of age, citizens of Georgia for two years, and residents for one year of the counties from which elected.5 The Georgia Constitution further provides that no one convicted of treason against the State, or of any crime of moral turpitude, or a number of other enumerated crimes may hold any office in the State.6 Idiots and insane persons are barred from office,7 and no one holding any state or federal office is eligible for a seat in either house.8 The State Constitution also provides:
39
'Election, returns, etc.; disorderly conduct.—Each House shall be the judge of the election, returns, and qualifications of its members and shall have power to punish them for disorderly behavior, or misconduct, by censure, fine, imprisonment, or expulsion; but no member shall be expelled, except by a vote of two-thirds of the House to which he belongs.'9
40
These constitute the only stated qualifications for membership in the Georgia Legislature and the State concedes that Bond meets all of them. The Georgia Constitution also requires Representatives to take an oath stated in the Constitution:
41
'Oath of members.—Each senator and Representative, before taking his seat, shall take the following oath, or affirmation, to-wit: 'I will support the Constitution of this State and of the United States, and on all questions and measures which may come before me, I will so conduct myself, as will, in my judgment, be most conducive to the interests and prosperity of this State."10
42
The State points out in its brief that the latter part of this oath, involving the admonition to act in the best interests of the State, was not the standard by which Bond was judged.
43
The State does not claim that Bond refused to take the oath to support the Federal Constitution, a requirement imposed on state legislators by Art. VI, cl. 3, of the United States Constitution:
44
'The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Tests shall ever be required as a Qualification to any Office or public Trust under the United States.'
45
Instead, it argues that the oath provisions of the State and Federal Constitutions constitute an additional qualification. Because under state law the legislature has exclusive jurisdiction to determine whether an elected Representative meets the enumerated qualifications, it is argued that the legislature has power to look beyond the plain meaning of the oath provisions which merely require that the oaths be taken. This additional power is said to extend to determining whether a given Representative may take the oath with sincerity. The State does not claim that it should be completely free of judicial review whenever it disqualifies an elected Representative; it admits that, if a State Legislature excluded a legislator on racial or other clearly unconstitutional grounds, the federal (or state) judiciary would be justified in testing the exclusion by federal constitutional standards.11 But the State argues that there can be no doubt as to the constitutionality of the qualification involved in this case because it is one imposed on the State Legislatures by Article VI of the United States Constitution. Moreover, the State contends that no decision of this Court suggests that a State may not ensure the loyalty of its public servants by making the taking of an oath a qualification of office. Thus the State argues that there should be no judicial review of the legislature's power to judge whether a prospective member may conscientiously take the oath required by the State and Federal Constitutions.
46
We are not persuaded by the State's attempt to distinguish, for purposes of our jurisdiction, between an exclusion alleged to be on racial grounds and one alleged to violate the First Amendment. The basis for the argued distinction is that, in this case, Bond's disqualification was grounded on a constitutional standard—the requirement of taking an oath to support the Constitution. But Bond's contention is that this standard was utilized to infringe his First Amendment rights, and we cannot distinguish, for purposes of our assumption of jurisdiction, between a disqualification under an unconstitutional standard and a disqualification which, although under color of a proper standard, is alleged to violate the First Amendment.
47
We conclude as did the entire court below that this Court has jurisdiction to review the question of whether the action of the Georgia House of Representatives deprived Bond of federal constitutional rights, and we now move to the central question posed in the case—whether Bond's disqualification because of his statements violated the free speech provisions of the First Amendment as applied to the States through the Fourteenth Amendment.
48
The State argues that the exclusion does not violate the First Amendment because the State has a right, under Article VI of the United States Constitution, to insist on loyalty to the Constitution as a condition of office. A legislator of course can be required to swear to support the Constitution of the United States as a condition of holding office, but that is not the issue in this case, as the record is uncontradicted that Bond has repeatedly expressed his willingness to swear to the oaths provided for in the State and Federal Constitutions. Nor is this a case where a legislator swears to an oath pro forma while declaring or manifesting his disagreement with or indifference to the oath. Thus, we do not quarrel with the State's contention that the oath provisions of the United States and Georgia Constitutions do not violate the First Amendment. But this requirement does not authorize a majority of state legislators to test the sincerity with which another duly elected legislator can swear to uphold the Constitution. Such a power could be utilized to restrict the right of legislators to dissent from national or state policy or that of a majority of their colleagues under the guise of judging their loyalty to the Constitution. Certainly there can be no question but that the First Amendment protects expressions in opposition to national foreign policy in Vietnam and to the Selective Service system. The State does not contend otherwise. But it argues that Bond went beyond expressions of opposition, and counseled violations of the Selective Service laws, and that advocating violation of federal law demonstrates a lack of support for the Constitution. The State declines to argue that Bond's statements would violate any law if made by a private citizen, but it does argue that even though such a citizen might be protected by his First Amendment rights, the State may nonetheless apply a stricter standard to its legislators. We do not agree.
49
Bond could not have been constitutionally convicted under 50 U.S.C.App. § 462(a), which punishes any person who 'counsels, aids, or abets another to refuse or evade registration.'12 Bond's statements were at worst unclear on the question of the means to be adopted to avoid the draft. While the SNCC statement said 'We are in sympathy with, and support, the men in this country who are unwilling to respond to a military draft,' this statement alone cannot be interpreted as a call to unlawful refusal to be drafted. Moreover, Bond's supplementary statements tend to resolve the opaqueness in favor of legal alternatives to the draft, and there is no evidence to the contrary. On the day the statement was issued, Bond explained that he endorsed it 'because I like to think of myself as a pacifist and one who opposes that war and any other war and eager and anxious to encourage people not to participate in it for any reason that they choose.' In the same interview, Bond stated categorically that he did not oppose the Vietnam policy because he favored the Communists; that he was a loyal American citizen and supported the Constitution of the United States. He further stated 'I oppose the Viet Cong fighting in Viet Nam as much as I oppose the United States fighting in Viet Nam.' At the hearing before the Special Committee of the Georgia House, when asked his position on persons who burned their draft cards, Bond replied that he admired the courage of persons who 'feel strongly enough about their convictions to take an action like that knowing the consequences that they will face.' When pressed as to whether his admiration was based on the violation of federal law, Bond stated:
50
'I have never suggested or counseled or advocated that any one other person burn their draft card. In fact, I have mine in my pocket and will produce it if you wish. I do not advocate that people should break laws. What I simply try to say was that I admired the courage of someone who could act on his convictions knowing that he faces pretty stiff consequences.'
51
Certainly this clarification does not demonstrate any incitement to violation of law. No useful purpose would be served by discussing the many decisions of this Court which establish that Bond could not have been convicted for these statements consistently with the First Amendment. See, e.g., Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962); Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957); Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949). Nor does the fact that the District Court found the SNCC statement to have racial overtones constitute a reason for holding it outside the protection of the First Amendment. In fact the State concedes that there is no issue of race in the case.
52
The State attempts to circumvent the protection the First Amendment would afford to these statements if made by a private citizen by arguing that a State is constitutionally justified in exacting a higher standard of loyalty from its legislators than from its citizens. Of course, a State may constitutionally require an oath to support the Constitution from its legislators which it does not require of its private citizens. But this difference in treatment does not support the exclusion of Bond, for while the State has an interest in requiring its legislators to swear to a belief in constitutional processes of government, surely the oath gives it no interest in limiting its legislators' capacity to discuss their views of local or national policy.13 The manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy. The central commitment of the First Amendment, as summarized in the opinion of the Court in New York Times v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964), is that 'debate on public issues should be uninhibited, robust, and wide-open.' We think the rationale of the New York Times case disposes of the claim that Bond's statements fell outside the range of constitutional protection. Just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected. The State argues that the New York Times principle should not be extended to statements by a legislator because the policy of encouraging free debate about governmental operations only applies to the citizencritic of his government. We find no support for this distinction in the New York Times case or in any other decision of this Court. The interest of the public in hearing all sides of a public issue is hardly advanced by extending more protection to citizen-critics than to legislators. Legislators have an obligation to take positions on controversial political questions so that their constitutents can be fully informed by them, and be better able to assess their qualifications for office; also so they may be represented in governmental debates by the person they have elected to represent them. We therefore hold that the disqualification of Bond from membership in the Georgia House because of his statements violated Bond's right of free expression under the First Amendment. Because of our disposition of the case on First Amendment grounds, we need not decide the other issues advanced by Bond and the amici.14
53
The judgment of the District Court is reversed.
54
Reversed.
1
The opinion of the District Court is reported at 251 F.Supp. 333 (1966).
2
Id., at 344.
3
Id., at 345.
4
A question was raised in oral argument as to whether this case might not be moot since the session of the House which excluded Bond was no longer in existence. The State has not ressed this argument, and it could not do so, because the State has stipulated that if Bond succeeds on this appeal he will receive back salary for the term from which he was excluded.
5
Georgia Const., Art. 3, § 6 (§ 2—1801, Ga.Code Ann.).
6
Georgia Const., Art. 2, § 2 (§ 2—801, Ga.Code Ann.).
7
Ibid.
8
Georgia Const., Art. 3, § 4 (§ 2—1606, Ga.Code Ann.).
9
Georgia Const., Art. 3, § 7 (§ 2—1901, Ga.Code Ann.).
10
Georgia Const., Art. 3, § 4 (§ 2—1605, Ga.Code Ann.).
11
See Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960), in which the Court stated: 'When a State exercises power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right.' 364 U.S., at 347, 81 S.Ct., at 130.
12
The pertinent provisions of § 462(a) are as follows:
'(A)ny person who shall knowingly make, or be a party to the making, of any false statement or certificate regarding or bearing upon a classification or in support of any request for a particular classification, for service under the provisions of this title * * *, or rules, regulations, or directions made pursuant thereto, or who otherwise evades or refuses registration or service in the armed forces or any of the requirements of this title * * *, or who knowingly counsels, aids, or abets another to refuse or evade registration or service in the armed forces or any of the requirements of this title * * *, or of said rules, regulations, or directions, * * * or any person or persons who shall knowingly hinder or interfere or attempt to do so in any way, by force or violence or otherwise, with the administration of this title * * * or the rules or regulations made pursuant thereto, or who conspires to commit any one or more of such offenses, shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment * * *.'
13
Madison and Hamilton anticipated the oppressive effect on freedom of expression which would result if the legislature could utilize its power of judging qualifications to pass judgment on a legislator's political views. At the Constitutional Convention of 1787, Madison opposed a proposal to give to Congress power to establish qualifications in general. Warren, The Making of the Constitution 420—422 (1937). The Journal of the Federal Convention of 1787 states:
'Mr. Madison was opposed to the Section as vesting an improper & dangerous power in the Legislature. The qualifications of electors and elected were fundamental articles in a Republican Govt. and ought to be fixed by the Constitution. If the Legislature could regulate those of either, it can by degrees subvert the Constitution. * * * Qualifications founded on artificial distinctions may be devised, by the stronger in order to keep out partizans of a weaker faction.
'Mr. Madison observed that the British Parliamt. possessed the power of regulating the qualifications both of the electors, and the elected; and the abuse they had made of it was a lesson worthy of our attention. They had made the changes in both cases subservient to their own views, or to the views of political or Religious parties.' 2 Farrand, The Records of the Federal Convention of 1787, pp. 249—250 (Aug. 10, 1787).
Hamilton agreed with Madison that:
'The qualifications of the persons who may choose or be chosen * * * are defined and fixed in the constitution; and are unalterable by the legislature.' The Federalist, No. 60, p. 409 (Cooke ed. 1961).
14
Bond argues that the action of the Georgia House was not authorized by state law, that if the State Constitution allows this exclusion it does so pursuant to an oath which is unconstitutionally vague, that the exclusion was based on statements protected by the First Amendment, and that the exclusion is a bill of attainder and an ex post facto law. In addition, amicus briefs filed in support of appellant Bond add the arguments that the decision not to seat him was inextricably involved with race prejudice and that it violated the guarantee of a republican form of government clause.
Similarly, we need not pass on the standing of two of Bond's constituents who joined in the suit below. The majority below dismissed the complaint as to these two constitutents because they lacked a sufficiently direct interest in the controversy as would give them standing. The majority noted that it was appropriate to dismiss the case as to Bond's constituents because Bond's complaint would resolve every issue necessary to a decision in the case. We express no opinion on the question of whether Bond's constituents can claim that concrete adverseness which would be necessary to give them standing.
| 23
|
385 U.S. 323
87 S.Ct. 439
17 L.Ed.2d 394
Z. T. OSBORN, Jr., Petitioner,v.UNITED STATES. James R. HOFFA, Petitioner, v. UNITED STATES. Duke Lee LEWIS, Petitioner, v. UNITED STATES.
Nos. 29, 32 and 36.
Supreme Court of the United States
December 12, 1966
Mr. Justice STEWART delivered the opinion of the Court.
1
The petitioner, a Nashville lawyer, was convicted in the United States District Court for the Middle District of Tennessee upon one count of an indictment under 18 U.S.C. § 1503, which charged him with endeavoring to bribe a member of the jury panel in a prospective federal criminal trial.1 The conviction was affirmed by the Court of Appeals, 350 F.2d 497. We granted certiorari, 382 U.S. 1023, 86 S.Ct. 644, 15 L.Ed.2d 538, primarily to consider whether the conviction rests upon unconstitutionally acquired evidence, although the petitioner also presses other claims.
2
In late 1963, James R. Hoffa was awaiting trial upon a criminal charge in the federal court in Nashville, and the petitioner, as one of Hoffa's attorneys, was engaged in preparing for that trial. In connection with these preparations the petitioner hired a man named Robert Vick to make background investigations of the people listed on the panel from which members of the jury for the Hoffa trial were to be drawn. Vick was a member of the Nashville police department whom the petitioner had employed for similar investigative work in connection with another criminal trial of the same defendant a year earlier. What the petitioner did not know was that Vick, before applying for the job with the petitioner in 1963, had met several times with federal agents and had agreed to report to them any 'illegal activities' he might observe.
3
The conviction which we now review was upon the charge that the petitioner 'during the period from on or about November 6, 1963, up to and including November 15, 1963, * * * did unlawfully, knowingly, wilfully and corruptly endeavor to influence, obstruct and impede the due administration of justice * * *' in that he 'did request, counsel and direct Robert D. Vick to contact Ralph A. Elliott, who was, and was known by the said Osborn to be, a member of the petit jury panel from which the petit jury to hear the (Hoffa) trial was scheduled to be drawn, and to offer and promise to pay the said Ralph A. Elliott $10,000 to induce the said Elliott to vote for an acquittal, if the said Elliott should be selected to sit on the petit jury in the said trial.'2 The primary evidence against the petitioner on this charge consisted of Vick's testimony, a tape recording of a conversation between the petitioner and Vick, and admissions which the petitioner had made during the course of federal disbarment proceedings.
4
Vick testified that during a discussion with the petitioner at the latter's office on November 7, he mentioned that he knew some of the prospective jurors. At this, according to Vick, the petitioner 'jumped up,' and said, 'You do? Why didn't you tell me?' The two then moved outside into the adjacent alley to continue the conversation. There, Vick testified, he told the petitioner that one of the prospective jurors, Ralph Elliott, was his cousin, and the petitioner told Vick to pay a visit to Elliott to see what arrangements could be made about the case. Vick also testified to meetings with the petitioner on November 8 and November 11, when he told the petitioner, falsely, that he had visited Elliott and found him 'susceptible to money for hanging this jury,' to which the petitioner responded by offering $5,000 to Elliott if he became a member of the jury and an additional $5,000 'when he hung the jury, but he would have to go all the way, and to assure Mr. Elliott that he would not be alone, that there would be some other jurors in there.'
I.
5
No claim is made in this case that Vick's testimony about the petitioner's incriminating statements was inadmissible in evidence. Cf. Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374; Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312. What is challenged is the introduction in evidence of a tape recording of one of the conversations about which Vick testified, specifically the conversation which took place in the petitioner's office on November 11. The recording of this conversation was played for the jury, and a written transcript of it was introduced in evidence. We are asked to hold that the recording should have been excluded, either upon constitutional grounds, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, or in the exercise of our supervisory power over the federal courts. McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819.
6
There is no question of the accuracy of the recording. The petitioner testified that it was a 'substantially correct' reproduction of what took place in his office on November 11. There can be no doubt, either, of the recording's probative relevance. It provided strong corroboration of the truth of the charge against the petitioner.3 The recording was made by means of a device concealed upon Vick's person during the November 11 meeting. We thus deal here not with surreptitious surveillance of a private conversation by an outsider, cf. Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734, but, as in Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462, with the use by one party of a device to make an accurate record of a conversation about which that party later testified. Unless Lopez v. United States is to be disregarded, therefore, the petitioner cannot prevail.4
7
But we need not rest our decision here upon the broad foundation of the Court's opinion in Lopez, because it is evident that the circumstances under which the tape recording was obtained in this case fall within the narrower compass of the Lopez concurring and dissenting opinions. Accordingly, it is appropriate to set out with some precision what these circumstances were.
8
Immediately after his November 7 meeting with the petitioner, at which, according to Vick, the possibility of approaching the juror Elliott was first discussed, Vick reported the conversation to an agent of the United States Department of Justice. Vick was then requested to put his report in the form of a written statement under oath, which he did.5 The following day this sworn statement was shown by government attorneys to the two judges of the Federal District Court, Chief Judge Miller and Judge Gray. After considering this affidavit, the judges agreed to authorize agents of the Federal Bureau of Investigation to conceal a recorder on Vick's person in order to determine from recordings of further conversations between Vick and the petitioner whether the statements in Vick's affidavit were true. It was this judicial authorization which ultimately led to the recording here in question.6
9
The issue here, therefore, is not the permissibility of 'indiscriminate use of such devices in law enforcement,'7 but the permissibility of using such a device under the most precise and discriminate circumstances, circumstances which fully met the 'requirement of particularity' which the dissenting opinion in Lopez found necessary.8
10
The situation which faced the two judges of the District Court when they were presented with Vick's affidavit on November 8, and the motivations which prompted their authorization of the recorder are reflected in the words of Chief Judge Miller. As he put it, 'The affidavit contained information which reflected seriously upon a member of the bar of this court, who had practiced in my court ever since I have been on the bench. I decided that some action had to be taken to determine whether this information was correct or whether it was false. It was the most serious problem that I have had to deal with since I have been on the bench. I could not sweep it under the rug.'
11
So it was that, in response to a detailed factual affidavit alleging the commission of a specific criminal offense directly and immediately affecting the administration of justice in the federal court, the judges of that court jointly authorized the use of a recording device for the narrow and particularized purpose of ascertaining the truth of the affidavit's allegations. As the district judges recognized, it was imperative to determine whether the integrity of their court was being undermined, and highly undesirable that this determination should hinge on the inconclusive outcome of a testimonial contest between the only two people in the world who knew the truth—one an informer, the other a lawyer of previous good repute. There could hardly be a clearer example of "the procedure of antecedent justification before a magistrate that is central to the Fourth Amendment" as 'a precondition of lawful electronic surveillance.'9
12
We hold on these facts that the use of the recording device was permissible, and consequently that the recording itself was properly admitted as evidence at the petitioner's trial.
II.
13
The petitioner's defense was one of entrapment, and he renews here the contention made in his motion for acquittal at the trial that entrapment was established as a matter of law. We cannot agree.
14
The validity of the entrapment defense depended upon what had transpired at the meetings between the petitioner and Vick which took place before the recorded conversation of November 11. According to the petitioner, Vick initiated the idea of making a corrupt approach to Elliott on October 28, and the petitioner at first resisted the suggestion and tried to discourage Vick from carrying it out. The petitioner conceded that he ultimately acquiesced in the scheme, out of 'weakness' and because he was exhausted from overwork, but said that he never seriously intended actually to carry out the plan to bribe Elliott. But Vick's version of what had happened was, as stated above, quite different, and the truth of the matter was for the jury to determine.10 Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859. Surely it was not a 'trap for the unwary innocent,' Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 820, 2 L.Ed.2d 848, for Vick to tell the petitioner, truthfully, that he knew some of the members of the jury panel and that one of them was his cousin. And according to Vick he had said no more when the petitioner 'jumped up,' went out into the alley with him, and initiated the effort to get Elliott 'on our side.' At the most, Vick's statement afforded the petitioner 'opportunities or facilities' for the commission of a criminal offense, and that is § far cry from entrapment. Sherman v. United States, supra, at 372, 78 S.Ct., at 821; Sorrells v. United States, 287 U.S. 435, 441, 53 S.Ct. 210, 212, 77 L.Ed. 413.11
III.
15
Finally, the argument is made that even if the admissibility and truth of all the evidence against the petitioner be accepted, this conviction must be set aside because his conduct did not constitute a violation of 18 U.S.C. § 1503.12 The basis for this argument is that since Vick never in fact approached Elliott and never intended to do so, any endeavor on the petitioner's part was impossible of accomplishment.
16
We reject the argument. Whatever continuing validity the doctrine of 'impossibility,' with all its subtleties, may continue to have in the law of criminal attempt,13 that body of law is inapplicable here. The statute under which the petitioner was convicted makes an offense of any proscribed 'endeavor.' And almost 50 years ago this Court pointed out the significance of that word: 'The word of the section is 'endeavor,' and by using it the section got rid of the technicalities which might be urged as besetting the word 'attempt,' and it describes any effort or essay to do or accomplish the evil purpose that the section was enacted to prevent. * * * The section * * * is not directed at success in corrupting a juror, but at the 'endeavor' to do so. Experimental approaches to the corruption of a juror are the 'endeavor' of the section.' United States v. Russell, 255 U.S. 138, 143, 41 S.Ct. 260, 261, 65 L.Ed. 553.
17
If the evidence against the petitioner be accepted, there can be no question that he corruptly endeavored to impede the due administration of justice by instructing Robert Vick to offer a bribe to a prospective juror in a federal criminal case.
18
Affirmed.
19
Mr. Justice WHITE took no part in the consideration or decision of this case.
20
Mr. Justice DOUGLAS dissented.
APPENDIX TO OPINION OF THE COURT.
21
Transcript of the recording of the Vick-Osborn conversation of November 11, 1963:
22
'Girl: You can go in now.
23
'Vick: O. K. honey. Hello, Mr. Osborn.
24
'Osborn: Hello Bob, close the door, my friend, and let's see what's up.
25
'Vick: How're you doing?
26
'Osborn: No good. How're you doing?
27
'Vick: Oh, pretty good. You want to talk in here?
28
'Osborn: How far did you go?
29
'Vick: Well, pretty far.
30
'Osborn: Maybe we'd better * * *
31
'Vick: Whatever you say. Don't make any difference to me.
32
'Osborn: (Inaudible whisper.)
33
'Vick: I'm comfortable, but er, this chair sits good, but we'll take off if you want to, but
34
'Osborn: Did you talk to him?
35
'Vick: Huh?
36
'Osborn: Did you talk to him?
37
'Vick: Yeah. I went down to Springfield Saturday morning and talked to er.
38
'Osborn: Elliott?
39
'Vick: Elliott.
40
'Osborn: (Inaudible whisper.)
41
'Vick: Huh?
42
'Osborn: Is there any chance in the world that he would report you?
43
'Vick: That he will report me to the FBI? Why of course, there's always a chance, but I wouldn't got into it if I thought it was very, very great.
44
'Osborn: (Laughed.)
45
'Vick: You understand that.
46
'Osborn: (Laughing.) Yeah, I do know. Old Bob first.
47
'Vick: That's right. Don't worry. I'm gonna take care of old Bob and I know, and of course I'm depending on you to take care of old Bob if anything, if anything goes wrong.
48
'Osborn: I am. I am. Why certainly.
49
'Vick: Er, we had coffee Saturday morning and now he had previously told you that it's the son.
50
'Osborn: It is?
51
'Vick: Yes, and not the father.
52
'Osborn: That's right.
53
'Vick: The son is Ralph Alden Elliott and the father is Ralph Donnal. Alden is er—Marie, that's Ralph's wife who killed herself. That was her maiden name, Alden, see? Anyway, we had coffee and he's been on a hung jury up here this week, see?
54
'Osborn: I know that.
55
'Vick: Well, I didn't know that but anway, he brought that up so he got to talking about the last Hoffa case being hung, you know, and some guy refused $10,000 to hang it, see, and he said the guy was crazy, he should've took it, you know, and so we talked about and so just discreetly, you know, and course I'm really playing this thing slow, that's the reason I asked you if you wanted a lawyer down there to handle it or you wanted me to handle it, cause I'm gonna play it easy.
56
'Osborn: The less people, the better.
57
'Vick: That's right. Well, I'm gonna play it slow and easy myself and er, anyway, we talked about er, something about five thousand now and five thousand later, see, so he did, he brought up five thousand see, and talking about about (sic) how they pay it off you know and things like that. I don't know whether he suspected why I was there or not cause I don't just drop out of the blue to visit him socially, you know. We're friends, close kin, cousins, but I don't ordinarily just, we don't fraternize, you know, and er, so he seemed very receptive for er, to hang the thing for five now and five later. Now, er, I thought I would report back to you and see what you say.
58
'Osborn: That's fine! The thing to do is set it up for a point later so you won't be running back and forth.
59
'Vick: Yeah.
60
'Osborn: Then tell him it's a deal.
61
'Vick: It's what? 'Osborn: That it's a deal. What we'll have to do—when it gets down to the trial date, when we know the date, tomorrow for example if the Supreme Court rules against us, well within a week we'll know when the trial comes. Then he has to be certain that when he gets on, he's got to know that he'll just be talking to you and nobody else.—
62
'Vick: Social strictly.
63
'Osborn: Oh yeah.
64
'Vick: I've got my story all fixed on that.
65
'Osborn: Then he will have to know where to, he will have to know where to come.
66
'Vick: Well, er * * *
67
'Osborn: And, he'll have to know when.
68
'Vick: Er, do you want to see him yourself? You want me to handle it or what?
69
'Osborn: Uh huh. You're gonna handle it yourself.
70
Vick: All right. You want to know it when he's ready, when I think he's ready for the five thousand. Is that right?
71
'Osborn: Well no, when he gets on the panel, once he gets on the jury. Provided he gets on the panel.
72
'Vick: Yeah. Oh yeah. That's right. That's right. Well now, he's on the number one.
73
'Osborn: I know, but now * * *
74
'Vick: But you don't know that would be the one.
75
'Osborn: Well, I know this, that if we go to trial before that jury he'll be on it but suppose the government challenges him over being on another hung jury.
76
'Vick: Oh, I see.
77
'Osborn: Where are we then?
78
'Vick: Oh, I see. I see.
79
'Osborn: So we have to be certain that he makes it on the jury.
80
'Vick: Well now, here's one thing, Tommy. He's a member of the CWA, see, and the Teamsters, or 'Osborn: Well, they'll knock him off.
81
'Vick: Naw, they won't. They've had a fight with the CWA, see?
82
'Osborn: I think everything looks perfect.
83
'Vick: I think it's in our favor, see. I think that'll work to our favor.
84
'Osborne: That's why I'm so anxious that they accept him.
85
'Vick: I think they would, too. I don't think they would have a reason in the world to. I don't think that I'm under any surveillance or suspicion or anything like that.
86
'Osborn: I don't think so.
87
'Vick: I don't know. I don't frankly think, since last year and since I told them I was through with the thing, I don't think I have been. Now Fred,
88
'Osborn: I don't think you have either.
89
'Vick: You know Fred and I may not (pause), he may be too suspicious and I may not be suspicious enough. I don't know.
90
'Osborn: I think you've got it sized up exactly right.
91
'Vick: Well, I think so.
92
'Osborn: Now, you know you promised that fella that you would have nothing more to do with that case.
93
'Vick: That's right.
94
'Osborn: At that time you had already checked on some of the jury that went into Miller's court. You went ahead and did that.
95
'Vick: Well, here's another thing, Tommy.
96
'Osborn:—church affiliations, background, occupation and that sort of thing on those that went into Miller's court. You didn't even touch them. You didn't even investigate the people that were in Judge Gray's court.
97
'Vick: 'Well, here's the thing about it, Tommy. Soon as this damn thing's over, they're gonna kick my ** * out anyway, so probably Fred's too. So, I might as well get out of it what I can. The way I look at it. I might be wrong cause the Tennessean is not gonna have anything to do with anybody that's had anything to do with the case now or in the past, you know that. Cause they're too close to the Kennedy's.
98
'Osborn: All right, so we'll leave it to you. The only thing to do would be to tell him, in other words your next contact with him would be to tell him if he wants that deal, he's got it.
99
'Vick: O.K.
100
'Osborn: The only thing it depends upon is him being accepted on the jury. If the government challenges him there will be no deal.
101
'Vick: All right. If he is seated.
102
'Osborn: If he's seated.
103
'Vick: He can expect five thousand then and
104
'Osborn: Immediately.
105
'Vick: Immediately and then five thousand when it's hung. Is that right?
106
'Osborn: All the way, now!
107
'Vick: Oh, he's got to stay all the way?
108
'Osborn: All the way.
109
'Vick: No swing. You don't want him to swing like we discussed once before. You want him
110
'Osborn: Of course, he could be guided by his own b—, but that always leaves a question. The thing to do is just stick with his crowd. That way we'll look better and maybe they'll have to go to another trial if we get a pretty good count.
111
'Vick: Oh. Now, I'm going to play it just like you told me previously, to reassure him and keep him from getting panicky, you know. I have reason to believe that he won't be alone, you know.
112
'Osborne: You assure him of that. 100%.
113
'Vick: And to keep any fears down that he might have, see?
114
'Osborn: Tell him there will be at least two others with him.
115
'Vick: Now, another thing, I want to ask you does John know anything. You know, I originally told John about me knowing.
116
'Osborn: He does not know one thing.
117
'Vick: He doesn't know. O.K.
118
'Osborn: He'll come in and recommend this man—and I'll say well just let it alone, you know.
119
'Vick: Yeah. So he doesn't know anything about this at all?
120
'Osborn: Nothing.
121
'Vick: Now he hasn't seen me. When I first came here he was in here, see.
122
'Osborn:—We'll keep it secret. The way we keep it safe is that nobody knows about it but you and me—where could they ever go?
123
'Vick: Well that's it, I reckon, or I'll probably go down there. See, I'm off tonight. I'm off Sunday and Monday, see. That's why I talked to you yeterday. I had a notion to go down there yesterday cause I was off last night and I'm off again tonight.
124
'Osborn: It will be a week at least until we know the trial date.
125
'Vick: O.K. You want to hold up doing anything further till we know.
126
'Osborn: Unless he should happen to give you a call and something like that, then you just tell him, whenever you happen to run into him.
127
'Vick: Well, he's not apt to call, cause see
128
'Osborn: You were very circumspect.
129
'Vick: Yeah. We haven't talked really definite and I think he clearly understands. Now, he might, it seemed to me that maybe he thought I was joking or, you know.
130
'Osborn: That's a good way to leave it, he's the one that brought it up.
131
'Vick: That's right.
132
'Osborn: —-
133
'Vick: Well, I knew he would before I went down there.
134
'Osborn: Well, —-
135
'Vick: Huh?
136
'Osborn: I'll be talking to you.
137
'Vick: I'll wait a day or two.
138
'Osborn: Yeah. I would.
139
'Vick: Before I contact him. Don't want to seem anxious and er
140
'Osborn: —-
141
'Vick: O.K. See you later.'
142
Mr. Justice DOUGLAS, dissenting in Osborn v. United States and Lewis v. United States; and concurring with Mr. Justice CLARK in Hoffa v. United States.
143
These cases present important questions of federal law concerning the privacy of our citizens and the breach of that privacy by government agents. Lewis v. United States involves the breach of the privacy of the home by a government agent posing in a different role for the purpose of obtaining evidence from the homeowner to convict him of a crime. Hoffa v. United States raises the question whether the Government in that case induced a friend of Hoffa's to insinuate himself into Hoffa's entourage, there to serve as the Government's eyes and ears for the purpose of obtaining incriminating evidence. Osborn v. United States presents the question whether the Government may compound the invasion of privacy by using hidden recording devices to record incriminating statements made by the unwary suspect to a secret federal agent.
144
Thus these federal cases present various aspects of the constitutional right of privacy. Privacy, though not expressly mentioned in the Constitution, is essential to the exercise of other rights guaranteed by it. As we recently said in Griswold v. State of Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 14 L.Ed.2d 510:
145
'(S)pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. * * * Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one * * *. The Third Amendment in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
146
We are rapidly entering the age of no privacy, where everyone is open to surveillance at all times; where there are no secrets from government. The aggressive breaches of privacy by the Government increase by geometric proportions. Wiretapping and 'bugging' run rampant, without effective judicial or legislative control.
147
Secret observation booths in government offices and closed television circuits in industry, extending even to rest rooms, are common.1 Offices, conference rooms, hotel rooms, and even bedrooms (see Irvine v. People of State of California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561) are 'bugged' for the convenience of government. Peepholes in men's rooms are there to catch homosexuals. See Smayda v. United States, 9 Cir., 352 F.2d 251. Personality tests seek to ferret out a man's innermost thoughts on family life, religion, racial attitudes, national origin, politics, atheism, ideology, sex, and the like.2 Federal agents are often 'wired' so that their conversations are either recorded on their persons (Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462) or transmitted to tape recorders some blocks away.3 The Food and Drug Administration recently put a spy in a church organization.4 Revenue agents have gone in the disguise of Coast Guard officers.5 They have broken and entered homes to obtain evidence.6
148
Polygraph tests of government employees and of employees in industry are rampant.7 The dossiers on all citizens mount in number and increase in size. Now they are being put on computers so that by pressing one button all the miserable, the sick, the suspect, the unpopular, the offbeat people of the Nation can be instantly identified.8
149
These examples and many others demonstrate an alarming trend whereby the privacy and dignity of our citizens is being whittled away by sometimes imperceptible steps. Taken individually, each step may be of little consequence. But when viewed as a whole, there begins to emerge a society quite unlike any we have seen—a society in which government may intrude into the secret regions of man's life at will.
150
We have here in the District of Columbia squads of officers who work the men's rooms in public buildings trying to get homosexuals to solicit them. See Beard v. Stahr, 200 F.Supp. 766, 768, judgment vacated, 370 U.S. 41, 82 S.Ct. 1105, 8 L.Ed.2d 321. Undercover agents or 'special employees' of narcotics divisions of city, state, and federal police actively solicit sales of narcotics. See generally 31 U.Chi.L.Rev. 137, 74 Yale L.J. 942. Police are instructed to pander to the weaknesses and craven motives of friends and acquaintances of suspects, in order to induce them to inform. See generally Harney & Cross, The Informer in Law Enforcement 33—44 (1960). In many cases the crime has not yet been committed. The undercover agent may enter a suspect's home and make a search upon mere suspicion that a crime will be committed. He is indeed often the instigator of, and active participant in, the crime—an agent provocateur. Of course, when the solicitation by the concealed government agent goes so far as to amount to entrapment, the prosecution fails. Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413; Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848. But the 'dirty business' (Olmstead v. United States, 277 U.S. 438, 470, 48 S.Ct. 564, 575, 72 L.Ed. 944 (Mr. Justice Holmes dissenting)) does not begin or end with entrapment. Entrapment is merely a facet of a much broader problem. Together with illegal searches and seizures, coerced confessions, wiretapping, and bugging, it represents lawless invasion of privacy. It is indicative of a philosophy that the ends justify the means.9
151
We are here concerned with the manner in which government agents enter private homes. In Lewis the undercover agent appeared as a prospective customer. Tomorrow he may be a policeman disguised as the grocery deliveryman or telephone repairman, or even a health inspector.10 Cf. Frank v. State of Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877; Ohio ex rel. Eaton v. Price, 364 U.S. 263, 80 S.Ct. 1463, 4 L.Ed.2d 1708.
152
We said in Gouled v. United States, 255 U.S. 298, 306, 41 S.Ct. 261, 264, 65 L.Ed. 647:
153
'(W)hether entrance to the home or office of a person suspected of crime be obtained by a representative of any branch or subdivision of the Government of the United States by stealth, or through social acquaintance, or in the guise of a business call, and whether the owner be present or not when he enters, any search and seizure subsequently and secretly made in his absence, falls within the scope of the prohibition of the Fourth Amendment * * *'
154
Entering another's home in disguise to obtain evidence is a 'search' that should bring into play all the protective features of the Fourth Amendment. When the agent in Lewis had reason for believing that petitioner possessed narcotics, a search warrant should have been obtained.11
155
Almost every home is at times used for purposes other than eating, sleeping, and social activities. Are the sanctity of the home and its privacy stripped away whenever it is used for business? If so, what about the 'mom and pop' grocery store with living quarters in the rear? What about garment workers who do piecework at home? What about saddle makers and shoemakers who have their shops in their homes? Are those proprietors stripped of privacy because customers come into the living quarters on business matters? What about the insurance agent who works out of his home? Is the privacy of his home shattered because he sells insurance there? And the candidate who holds political conferences in his home? Or the house-holder who consults with his attorney or accountant in his home? Are their homes transformed into public places which the Government may enter at will merely because they are occasionally used for business? I think not. A home is still a sanctuary, however the owner may use it. There is no reason why an owner's Fourth Amendment rights cannot include the right to open up his house to limited classes of people. And, when a homeowner invites a friend or business acquaintance into his home, he opens his house to a friend or acquaintance, not a government spy.
156
This does not mean he can make his sanctuary invasion-proof against government agents. The Constitution has provided a way whereby the home can lawfully be invaded, and that is with a search warrant. Where, as here, there is enough evidence to get a warrant to make a search I would not allow the Fourth Amendment to be short-circuited.
157
We downgrade the Fourth Amendment when we forgive noncompliance with its mandate and allow these easier methods of the police to thrive.
158
A householder who admits a government agent, knowing that he is such, waives of course any right of privacy. One who invites or admits an old 'friend' takes, I think, the risk that the 'friend' will tattle and disclose confidences or that the Government will wheedle them out of him. The case for me, however, is different when government plays an ignoble role of 'planting' an agent in one's living room or uses fraud and deception in getting him there. These practices are at war with the constitutional standards of privacy which are parts of our choicest tradition.
159
The formula approved today by the Court in Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374, makes it possible for the Government to use willy-nilly, son against father, nephew against uncle, friend against friend to undermine the sanctity of the most private and confidential of all conversations. The Court takes the position that whether or not the Government 'placed' Partin in Hoffa's councils is immaterial. The question of whether the Government planted Partin or whether Hoffa was merely the victim of misplaced confidence is dismissed as a 'verbal controversy * * * unnecessary to a decision of the constitutional issues.' Hoffa v. United States, 385 U.S. at 295, 87 S.Ct. at 410. But, very real differences underlie the 'verbal controversy.' As I have said, a person may take the risk that a friend will turn on him and report to the police. But that is far different from the Government's 'planting' a friend in a person's entourage so that he can secure incriminating evidence. In the one case, the Government has merely been the willing recipient of information supplied by a fickle friend. In the other, the Government has actively encouraged and participated in a breach of privacy by sending in an undercover agent. If Gouled is to be followed, then the Government unlawfully enters a man's home when its agent crawls through a window, breaks down a door, enters surreptitiously, or, as alleged here, gets in by trickery and fraud. I therefore do not join in the Hoffa opinion.
160
I agree with Mr. Justice Clark that the petition in that case should be dismissed as improvidently granted. The two lower courts found that Partin was not planted by the Federal Government in Hoffa's entourage. And I cannot say that those findings are clearly erroneous.
161
The trial court found: 'I would further find that the government did not place this witness Mr. Partin in the defendants' midst or have anything to do with placing him in their midst, rather that he was knowingly and voluntarily placed in their midst by one of the defendants.' The Court of Appeals held that this finding was supported by substantial evidence and not clearly erroneous. 6 Cir., 349 F.2d 20, 36. 'A court of law, such as this Court is, rather than a court for correction of errors in fact finding, cannot undertake to review concurrent findings of fact by two courts below in the absence of a very obvious and exceptional showing of error.' Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 275, 69 S.Ct. 535, 538, 93 L.Ed. 672. At times there are questions of law that may undercut two concurrent findings of fact.12 See Graver Tank & Mfg. Co. v. Linde Air Products Co., supra, at 280, 69 S.Ct., at 540 (concurrence); Gonzales v. United States, 364 U.S. 59, 66, 80 S.Ct. 1554, 1558, 4 L.Ed.2d 1569 (dissent); Blau v. Lehman, 368 U.S. 403, 408—409, 82 S.Ct. 451, 454—455, 7 L.Ed.2d 403. But I see no such difficulty here.
162
It is true that in cases from state courts involving federal constitutional rights we are careful to review findings of fact lest a state rule undercut the federal claim. Norris v. State of Alabama, 294 U.S. 587, 590, 55 S.Ct. 579, 580, 79 L.Ed. 1074; Hooven & Allison Co. v. Evatt, 324 U.S. 652, 659, 65 S.Ct. 870, 874, 89 L.Ed. 1252; Watts v. State of Indiana, 338 U.S. 49, 51, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801; Napue v. People of State of Illinois, 360 U.S. 264, 271, 79 S.Ct. 1173, 1178, 3 L.Ed.2d 1217; Haynes v. State of Washington, 373 U.S. 503, 515 516, 83 S.Ct. 1336, 1344—1345, 10 L.Ed.2d 513; Jacobellis v. State of Ohio, 378 U.S. 184, 187—188, 84 S.Ct. 1676, 1677—1678, 12 L.Ed.2d 793. In those cases a question of fact and a question of law are usually intertwined, e.g., is a confession 'voluntary,' is a book 'obscene' and the like. Here the question for the factfinders was thether Partin was 'planted' on petitioner or whether petitioner was the victim of misplaced confidence. This is not a case where 'a conclusion' is 'drawn from uncontroverted happenings, when that conclusion incorporates standards of conduct or criteria for judgment which in themselves are decisive of constitutional rights.' Watts v. State of Indiana, supra, 338 U.S. at 51, 69 S.Ct., at 1348. I would apply the same legal criteria as THE CHIEF JUSTICE, once the facts are found. If we were the original factfinders the question would not be an open-and-shut one for me. But the concurrent findings by the lower courts have support in the evidence and I would let them stand.
163
Once electronic surveillance, approved in Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462, is added to the techniques of snooping which this sophisticated age has developed, we face the stark reality that the walls of privacy have broken down and all the tools of the police state are handed over to our bureaucracy on a constitutional platter. The Court today pays lip service to this danger in Osborn v. United States, but goes on to approve what was done in the case for another reason. In Osborn, use of the electronic device to record the fateful conversation was approved by the two judges of the District Court in advance of its use.13 But what the Court overlooks is that the Fourth Amendment does not authorize warrants to issue for any search even on a showing of probable cause. The first clause of the Fourth Amendment reads:
164
'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated * * *.'
165
As held in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; a validly executed warrant does not necessarily make legal the ensuing search and seizure.
166
'It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property, where that right has never been forfeited by his conviction of some public offence,—it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment. (Entick v. Carrington, 19 HowSt.Tr. 1029.) Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony, or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is within the condemnation of that judgment. In this regard the fourth and fifth amendments run almost into each other.' Id., at 630, 6 S.Ct. at 532.
167
It was accordingly held in Gouled v. United States, supra, 255 U.S., a 309, 41 S.Ct., at 265, that a search warrant 'may not be used as a means of gaining access to a man's house or office and papers solely for the purpose of making search to secure evidence to be used against him in a criminal or penal proceeding' but only to obtain contraband articles or the tools with which a crime had been committed. That decision was by a unanimous Court in 1921, the opinion being written by Mr. Justice Clarke. That view has been followed (United States v. Lefkowitz, 285 U.S. 452, 465, 52 S.Ct. 420, 423, 76 L.Ed. 877; Harris v. United States, 331 U.S. 145, 154, 67 S.Ct. 1098, 1103, 91 L.Ed. 1399; United States v. Rabinowitz, 339 U.S. 56, 64, 70 S.Ct. 430, 434, 94 L.Ed. 653) with the result that today a 'search' that respects all the procedural proprieties of the Fourth Amendment is nonetheless unconstitutional if it is a 'search' for testimonial evidence.
168
As already indicated, Boyd v. United States, supra, made clear that if the barriers erected by the Fourth Amendment were not strictly honored, serious invasions of the Fifth Amendment might result. Encouraging a person to talk into a concealed 'bug' may not be complusion within the meaning of the Fifth Amendment. But allowing the transcript to be used as evidence against the accused is using the force and power of the law to make a man talk against his will, just as is the use of a warrant to obtain a letter from the accused's home and allowing it as evidence. '(I)llegitimate and unconstitutional practices get their first footing * * * by silent approaches and slight deviations from legal modes of procedure.' 116 U.S., at 635, 6 S.Ct. at 535. The fact that the officer could have testified to his talk with Osborn is no answer. Then an issue of credibility between two witnesses would be raised. But the tape recording carrying the two voices is testimony introduced by compulsion and, subject to the defense that the tape was 'rigged,'14 is well nigh conclusive proof.
169
I would adhere to Gouled and bar the use of all testimonial evidence obtained by wiretapping or by an electronic device. The dangers posed by wiretapping and electronic surveillance strike at the very heart of the democratic philosophy. A free society is based on the premise that there are large zones of privacy into which the Government may not intrude except in unusual circumstances. As we noted in Griswold v. State of Connecticut, supra, various provisions of the Bill of Rights contain this aura of privacy, including the First, Third, Fourth Fifth, and the Ninth Amendments.15 As respects the Fourth, this premise is expressed in the provision that the Government can intrude upon a citizen's privacy only pursuant to a search warrant, based upon probable cause, and specifically describing the objects sought. And, the 'objects' of the search must be either instrumentalities or proceeds of the crime. But wiretapping and electronic 'bugging' invariably involve a search for mere evidence. The objects to be 'seized' cannot be particularly described; all the suspect's conversations are intercepted. The search is not confined to a particular time, but may go on for weeks or months. The citizen is completely unaware of the invasion of his privacy. The invasion of privacy is not limited to him, but extends to his friends and acquaintances—to anyone who happens to talk on the telephone with the suspect or who happens to come within the range of the electronic device. Their words are also intercepted; their privacy is also shattered. Such devices lay down a dragnet which indiscriminately sweeps in all conversations within its scope, without regard to the nature of the conversations, or the participants. A warrant authorizing such devices is no different from the general warrants the Fourth Amendment was intended to prohibit.
170
Such practices can only have a damaging effect on our society. Once sanctioned, there is every indication that their use will indiscriminately spread. The time may come when no one can be sure whether his words are being recorded for use at some future time; when everyone will fear that his most secret thoughts are no longer his own, but belong to the Government; when the most confidential and intimate conversations are always open to eager, prying ears. When that time comes, privacy, and with it liberty, will be gone. If a man's privacy can be invaded at will, who can say he is free? If his every word is taken down and evaluated, or if he is afraid every word may be, who can say he enjoys freedom of speech? If his every association is known and recorded, if the conversations with his associates are purloined, who can say he enjoys freedom of association? When such conditions obtain, our citizens will be afraid to utter any but the safest and most orthodox thoughts; afraid to associate with any but the most acceptable people. Freedom as the Constitution envisages it will have vanished.
171
I would reverse Lewis and Osborn and dismiss Hoffa.
1
18 U.S.C. § 1503 provides as follows:
'Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any witness, in any court of the United States or before any United States commissioner or other committing magistrate, or any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States commissioner or other committing magistrate, in the discharge of his duty, or injures any party or witness in his person or property on account of his attending or having attended such court or examination before such officer, commissioner, or other committing magistrate, or on account of his testifying or having testified to any matter pending therein, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, commissioner, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both.'
2
The indictment contained two other courts charging similar offenses with respect to the earlier trial of the same defendant. The Government dismissed one of these counts, and the petitioner was acquitted on the other.
3
A transcript of the recording is reproduced as an Appendix to this opinion.
4
It is argued that in Lopez the petitioner knew that the person to whom he offered a bribe was a federal officer. But, even assuming there might otherwise be some force to this distinction, it is enough to point out that in the present case the petitioner also knew he was talking to a law enforcement officer—a member of the Nashville police department.
5
The relevant portion of this affidavit was as follows:
'On November 7, 1963, I was in Mr. Osborn's office going over the results of my investigation. I was aware that the jury panel which I had been investigating was the panel assigned to Judge William E. Miller. Mr. Osborn and I got into a discussion of the jury panel assigned to Judge Frank Gray, Jr. This jury panel list had previously been shown to me by John Polk, an investigator for Mr. Osborn. Polk told me at that time that he was investigating the jury panel assigned to Judge Gray. At that time, I mentioned to Polk that I knew three of the people on the jury panel. In discussing the panel with Mr. Osborn, I again mentioned that I knew three of the people on the jury panel. Mr. Osborn said, 'You do? Why didn't you tell me?' I told Mr. Osborn I had told John Polk and assumed that John Polk had told him. Mr. Osborn said that Polk had not told him and suggested that we discuss the matter further. We then left Mr. Osborn's office and walked out onto the street to discuss the matter further. Mr. Osborn asked me how well I knew the three prospective jurors. I told him that I knew Mr. Ralph A. Elliott, Springfield, Tennessee, the best since he was my cousin. Mr. Osborn asked me whether I knew him well enough to talk to him about anything. I said that I thought I did. Mr. Osborn then said, 'Go contact him right away. Sit down and talk to him and get him on our side. We want him on the jury.' I told Mr. Osborn that I thought Mr. Elliott was not in very good financial position and Mr. Osborn said, 'Good, go see him right away."
6
The recording device did not operate properly on the occasion of Vick's visit to the petitioner's office on November 8, and Vick made a written statement of what occurred during that meeting. The government lawyers reported these circumstances to District Judge Miller, who then authorized the use of the recorder on November 11, under the same conditions:
'I said on that second occasion the same as I did on the first occasion: that the tape recorder should be used under proper surveillance, supervision, to see that it was not faked in any way, and to take every precaution to determine that it was used in a fair manner, so that we could get at the bottom of it and determine what the truth was.'
7
'I also share the opinion of Mr. Justice Brennan that the fantastic advances in the field of electronic communication constitute a great danger to the privacy of the individual; that indiscriminate use of such devices in law enforcement raises grave constitutional questions under the Fourth and Fifth Amendments; and that these considerations impose a heavier responsibility on this Court in its supervision of the fairness of procedures in the federal court system. However, I do not believe that, as a result, all uses of such devices should be proscribed either as unconstitutional or as unfair law enforcement methods.' Lopez v. United States, 373 U.S., at 441, 83 S.Ct., at 1389 (concurring opinion of The Chief Justice).
8
373 U.S., at 463, 83 S.Ct. at 1401.
9
'The requirements of the Fourth Amendment are not inflexible, or obtusely unyielding to the legitimate needs of law enforcement. It is at least clear that 'the procedure of antecedent justification before a magistrate that is central to the Fourth Amendment,' Ohio ex rel. Eaton v. Price, 364 U.S. 263, 272, 80 S.Ct. 1463, 1468, 4 L.Ed.2d 1708 (separate opinion); see McDonald v. United States, 335 U.S. 451, 455, 69 S.Ct. 191, 193, 93 L.Ed. 153; Abel v. United States, 362 U.S. 217, 251—252, 80 S.Ct. 683, 703, 4 L.Ed.2d 668 (dissenting opinion), could be made a precondition of lawful electronic surveillance. * * *' Lopez v. United States, 373 U.S., at 464, 83 S.Ct., at 1401 (dissenting opinion of Mr. Justice Brennan).
10
The petitioner's trial counsel explicitly conceded that the entrapment issue was for the jury to resolve.
11
The petitioner further argues, with respect to the entrapment defense, that the jury instructions were erroneous in two respects, and that government rebuttal evidence was improperly received.
It is urged that the trial judge committed error in failing to instruct the jury that if they acquitted the petitioner under Count 2 (charging an endeavor to bribe a juror at the 1962 Hoffa trial), they must not consider any evidence under that count in determining the petitioner's guilt under Count 1. Such an instructions was not requested. Rule 30, Fed.Rules Crim.Proc. Moreover, it is settled that when the defense of entrapment is raised, evidence of prior conduct tending to show the defendant's predisposition to commit the offense charged is admissible. See Sorrells v. United States, 287 U.S. 435, 451, 53 S.Ct. 210, 216, 77 L.Ed. 413.
The petitioner further argues that the instructions on entrapment erroneously left to the jury the question of whether the tape recording had been obtained by lawful means. We do not so understand the trial judge's language, and neither, apparently, did trial counsel, because no objection was made to the instructions as given. Rule 30, Fed.Rules Crim.Proc. Moreover, such an instruction would have been favorable to the petitioner, because the judge, in denying the earlier defense motion to suppress, had already ruled that the recording had been lawfully obtained.
Finally, objection is made to permitting the Government on rebuttal to introduce Vick's November 8 affidavit and show the circumstances under which the tape recording had been authorized by the judges. But this evidence was a relevant response to the petitioner's testimony that it was Vick who, at the instigation of the Government, had initiated the plan to approach Elliott as early as October 28.
12
See n. 1, supra.
13
Compare People v. Jaffe, 185 N.Y. 497, 78 N.E. 169, 9 L.R.A., N.S., 263, with People v. Gardner, 144 N.Y. 119, 38 N.E. 1003, 28 L.R.A. 699. See Wechsler, Jones & Korn, The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation, and Conspiracy, 61 Col.L.Rev. 571, 578—585 (1961).
1
See generally, Hearings before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, Invasions of Privacy, 89th Cong., 1st Sess. (1965).
2
See generally Hearings before a Subcommittee of the House Committee on Government Operations, Special Inquiry on Invasion of Privacy, 89th Cong., 1st Sess. (1965); Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, Psychological Tests and Constitutional Rights, 89th Cong., 1st Sess. (1965).
3
See, e.g., Hearings before the Subcommittee on Administrative Practice and Procedure, supra, n. 1, pt. 2, at 389.
4
Id., at 783.
5
Id., pt. 3, at 1356.
6
Id., at 1379, 1415.
7
See generally Hearings before a Subcommittee of the House Committee on Government Operations, Use of Polygraphs As 'Lie Detectors' By the Federal Government, 88th Cong., 2d Sess. (1964).
8
See generally Hearings before a Subcommittee of the House Committee on Government Operations, The Computer and Invasion of Privacy, 89th Cong., 2d Sess., July 26, 27, and 28, 1966.
9
We know from the Hearings before Senate and House Committees that the Government is using such tactics on a gargantuan scale and has become callous of the rights of the citizens.
The attitude that those investigated for crime have fewer constitutional rights than others has currency:
'Senator LONG. I am curious as to whether you have a different set of principles, different standards, a different view as to the constitutional rights and privileges where the OCD is involved and where the ordinary taxpayer is involved?
'Mr. WILSON. It is pretty much a matter of fight fire with fire. Yes, I think to a degree there is a different feeling when you are working on organized crime.
'Senator LONG. In other words, you say one has constitutional rights and the other one does not?
'Mr. WILSON. No, we don't say that.
'Senator LONG. You act like it, though, don't you?
'Mr. WILSON. I am afraid you are right.'
Hearings before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, Invasions of Privacy, supra, n. 1, pt. 3, at 1477 (1965).
10
We are told that raids by welfare inspectors to see if recipients of welfare have violated eligibility requirements flout the Fourth Amendment. See Reich, Midnight Welfare Searches and the Social Security Act, 72 Yale L.J. 1347 (1963).
11
In Lewis, a federal narcotics agent, posing as an operator of a bar and grill, went to petitioner's home for the purpose of obtaining narcotics from him. He had no search warrant, though there were grounds for obtaining one. Agent Cass testified that he had been assigned to investigate narcotics activities in the Boston area in June 1963. He became acquainted with one Gold, a friend of petitioner,* from whom he learned that one might obtain marihuana from the petitioner. It was then that Agent Cass, representing himself as 'Jimmy the Pollack,' telephoned the petitioner stating 'a friend of ours told me you have some pretty good grass (marihuana).' Petitioner replied, 'Yes, he told me about you, Pollack * * * I believe, Jimmy, I can take care of you.' When Cass told him that he needed five bags, petitioner gave him his address and directions, and told him to come right over. On the basis of our prior decisions this information would certainly have made a sufficient showing of probable cause to justify the issuance of a warrant. Yet none was sought or obtained.
* '(W)hen we approach the narcotic trafficker to purchase drugs for evidence, our credentials need to be good—almost impeccable. Usually considered as good credentials is an introduction by an accepted criminal who vouches for our agent. In this category the informer can supply the entree which otherwise might never be attained. Working under cover, we have sometimes been embarrassed by the informer's fulsome description of our rogue qualifications.' Harney & Cross, The Informer in Law Enforcement 18—19 (1960). See Pritt, Spies and Informers in the Witness-Box (1958).
12
Compare the cases from state courts dealing with the question whether a confession has been coerced contrary to the requirements of the Fourteenth Amendment, where the Court weighs only the undisputed facts. Ashcraft v. State of Tennessee, 322 U.S. 143, 153, 154, 64 S.Ct. 921, 925—926, 88 L.Ed. 1192; Malinski v. People of State of New York, 324 U.S. 401, 404, 65 S.Ct. 781, 783, 89 L.Ed. 1029; Thomas v. State of Arizona, 356 U.S. 390, 402 403, 78 S.Ct. 885, 891—892, 2 L.Ed.2d 863; Rogers v. Richmond, 365 U.S. 534, 546, 81 S.Ct. 735, 742, 5 L.Ed.2d 760.
13
The recent regulation of the Federal Communications Commission that bans the use of monitoring devices 'unless such use is authorized by all of the parties engaging in the conversation' (31 Fed.Reg. 3400) is of course applicable only when air waves are used; and it does not apply to 'operations of any law enforcement officers conducted under lawful authority.' Ibid. If Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734, is read in the context of our prior decisions, then the majority view is that the use of an electronic device to record a conversation in the home is not a 'search' within the meaning of the Fourth Amendment, unless the device itself penetrates the wall of the home. Section 605 of the Federal Communications Act, 48 Stat. 1103, 47 U.S.C. § 605, that governs the interception of communications made 'by wire or radio' reaches only the problem of the persons to whom the message may be disclosed by federal agents as well as others (Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314; 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307), not the practice itself.
Though § 605 protects communications 'by wire or radio,' the Court in On Lee v. United States, 343 U.S. 747, 754, 72 S.Ct. 967, 972, 96 L.Ed. 1270, held that § 605 was not violated when a narcotics agent wearing an electronic device entered the combination home and office of a suspect and engaged him in conversation which was broadcast to another agent stationed outside. 'Petitioner (the suspect) had no wires and no wireless. There was no interference with any communications facility which he possessed or was entitled to use. He was not sending messages to anybody or using a system of communications within the Act.'
If that decision stands, then § 605 extends no protection to messages intercepted by the use of electronic devices banned by the new 1966 Federal Communications Commission rule.
14
Rigging is easy for the expert. See Dash, The Eavesdroppers 367—371 (1959): '* * * the tape to be edited is played on a machine which can be instantaneously stopped at will. When a word or passage occurs which is to be deleted, the machine is stopped, the piece of tape containing the unwanted section is cut out, and the two loose ends are spliced. The words cut out can be inserted in whole or in part somewhere else. Sentences can be rearranged. New words can be dubbed in by an impersonator or made up of sounds taken from other words.' Id., 369.
'* * * a skilfully edited tape cannot be detected with equipment readily available.' Id., 371.
15
'The ninth amendment should be permitted to occupy its rightful place in the Constitution as a reminder at the end of the Bill of Rights that there exist rights other than those set out in the first eight amendments. It was intended to preserve the underlying theory of the Constitutional Convention that individual rights exist independently of government, and to negate the Federalist argument that the enumeration of certain rights would imply the forfeiture of all others. The ninth is simply a rule of construction, applicable to the entire constitution.' Comment, The Uncertain Renaissance of the Ninth Amendment, 33 U.Chi.L.Rev. 814, 835 (1966).
| 01
|
385 U.S. 263
87 S.Ct. 457
17 L.Ed.2d 351
UNITED STATES, Appellant,v.Anthony L. FABRIZIO.
No. 47.
Argued Nov. 7, 1966.
Decided Dec. 12, 1966.
Jerome I. Chapman, Washington, D.C., for appellant, pro hac vice, by special leave of Court.
Mrs. Betty D. Friedlander, Waverly, N.Y., for appellee.
Joseph A. Millimet, Manchester, N.H., for State of New Hampshire, as amicus curiae, by special leave of Court.
Mr. Justice HARLAN delivered the opinion of the Court.
1
An indictment filed in the United States District Court for the Western District of New York charged appellee, Fabrizio, with knowingly carrying 'in interstate commerce from Keene, State of New Hampshire to Elmira, State of New York, * * * records, papers and writings, to wit: 75 acknowledgements of purchase for a sweepstakes race of the State of New Hampshire, to be used, and adapted, devised and designed for use, in a wagering pool with respect to a sporting event, that is: a sweepstake race of the State of New Hampshire, as he then well knew; all in violation of Section 1953 of Title 18, U.S.C.' That section provides in pertinent part:
2
'(a) Whoever, except a common carrier in the usual course of its business, knowingly carries or sends in interstate or foreign commerce any record, paraphernalia, ticket, certificate, bills, slip, token, paper, writing, or other device used, or to be used, or adapted, devised, or designed for use in (a) bookmaking; or (b) wagering pools with respect to a sporting event; or (c) in a numbers, policy, bolita, or similar game shall be fined not more than $10,000 or imprisoned for not more than five years or both.
3
'(b) This section shall not apply to (1) parimutuel betting equipment, parimutuel tickets where legally acquired, or parimutuel materials used or designed for use at racetracks or other sporting events in connection with which betting is legal under applicable State law, or (2) the transportation of betting materials to be used in the placing of bets or wagers on a sporting event into a State in which such betting is legal under the statutes of that State, or (3) the carriage or transportation in interstate or foreign commerce of any newspaper or similar publication.'
4
In response to a limited demand for a bill of particulars the Government stated that the only records, papers, and writings in issue were the specified 75 acknowledgments, and that no violation of state law was charged. Appellee then moved to dismiss the indictment on the ground that it did 'not set forth facts sufficient to charge the Defendant with the violation of' this statute. In a supporting affidavit three specific shortcomings were claimed. Appellee first contended that § 1953 was intended to reach only the activities of organized crime or those participating in an illegal gambling or lottery enterprise. Absent an allegation that he was of this class no crime under the statute was charged. Appellee also contended that the indictment was deficient under the statute for failure to name an 'illegal' wagering pool, the New Hampshire lottery being a state enterprise. Finally, it was urged that the allegation in the indictment that the acknowledgments were 'to be used, and adapted, devised and designed for use' in the New Hampshire Sweepstakes was impossible in fact or rested on a misinterpretation of 'use' since the acknowledgments were valueless, and need not have been retained in order to collect on the sweepstakes.
5
The District Court thereupon dismissed the indictment holding that '(t)he charge in the indictment does not come within the purpose of Section 1953 * * * as disclosed in the legislative history of the Act.' The Government brought the case directly here under the provisions of the Criminal Appeals Act, 18 U.S.C. § 3731. We noted probable jurisdiction, 383 U.S. 904, 86 S.Ct. 891, 15 L.Ed.2d 661. Our function under that Act is limited to the construction of the statute and 'this Court is not at liberty to go beyond the question of the correctness of that construction and consider other objections to the indictment. The Government's appeal does not open the whole case.' United States v. Borden Co., 308 U.S. 188, 193, 60 S.Ct. 182, 186, 84 L.Ed. 181. See also United States v. Keitel, 211 U.S. 370, 29 S.Ct. 123, 53 L.Ed. 230.1 For reasons to follow, we reverse.
6
We turn to the specific deficiencies alleged by appellee, noting first that the indictment tracks the language of § 1953 and thus makes it incumbent upon appellee to demonstrate that the additional allegations he claims to be necessary are required to fulfill the statutory purpose. We may dispose quickly of appellee's first contention. The language of § 1953 makes it applicable to 'Whoever, except a common carrier * * *' engages in the forbidden conduct. The need to exempt common carriers makes it clear that Congress painted with a broad brush, and did not limit the applicability of § 1953 in the respects urged by appellee. In companion legislation where Congress wished to restrict the applicability of a provision to a given set of individuals, it did so with clear language.2 A statute limited without a clear definition of the covered group, as would be the case with § 1953 under appellee's view of it, might raise serious constitutional problems. Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888. And the asserted restriction would defeat one of the purposes of the section which is aimed not only at the paraphernalia of existing gambling activities but also at materials essential to the creation of such activities. As the legislative hearings made clear, such materials are often legally fabricated and transported by persons engaged in legitimate businesses.3 Since the purpose of Congress was to thwart the interstate movement of such paraphernalia, the accomplishment of that goal required reaching 'whoever' knowingly carried such materials in interstate commerce.4
7
Appellee's next contention, earnestly supported by the State of New Hampshire as amicus, is based on a similar reading of the legislative intent. Appellee emphasizes the congressional desire to attack organized crime, a purpose not served by restrictions on the distribution of New Hampshire Sweepstakes materials. Appellee argues that the specific exemption in § 1953(b) of certain legal gambling enterprises from the provisions of § 1953(a) and the limitation of § 1953(a) itself to three types of gambling favored by organized crime reflect a congressional policy of respecting the individual gambling policies of the States and that these exemptions and limitations are merely indicative of that general policy. The New Hampshire Sweepstakes not being in existence when § 1953 was passed is necessarily exempted, so it is said, by policy rather than wording. The Government, on the other hand, contends that the specific exceptions point up the breadth of § 1953(a) and the congressional desire to apply it except where Congress itself had carefully examined and approved exemption.
8
We find the Government's contention more in keeping with the language and purposes of the Act. Although at least one State had legalized gambling activities at the time the bill was passed, and the Congress was certainly aware of legal sweepstakes run by governments in other countries, Congress did not limit the coverage of the statute to 'unlawful' or 'illegal' activities. The sponsors of the bill made it clear that the measure as drafted was not so limited.5 In passing 18 U.S.C. § 1084 and 18 U.S.C. § 1952 as companion provisions to § 1953 Congress exempted transmission of legal gambling information from the former and limited the latter to those engaged in 'unlawful activity.' Thus it is reasonable to assume that Congress would have given a specific indication of exemption for staterun wagering pools if it had desired to exempt them.
9
Exemption would also defeat one of the principal purposes of § 1953, aiding the States in the suppression of gambling where such gambling is contrary to state policy. For example, New York prohibits the sale of lottery tickets and the transfer of any paper purporting to represent an interest in a lottery 'to be drawn within or without' that State regardless of the legality of the lottery in the place of drawing. N.Y.Const., Art. I, § 9, N.Y. Penal Law, McKinney's Consol.Laws, c. 40, §§ 1373, 1382. To allow the paraphernalia of a lottery, state-operated or not, to flow freely into New York might significantly endanger that policy. It is clear that the lottery statutes apply to state-operated as well as illegal lotteries, and that § 1953 was introduced to strengthen those statutes by closing the loopholes placed in them by the narrow interpretation of included materials by this Court in France v. United States, 164 U.S. 676, 17 S.Ct. 219, 41 L.Ed. 595 and Francis v. United States, 188 U.S. 375, 23 S.Ct. 334, 47 L.Ed. 508.6 It would be anomalous to hold that where Congress meant to bar the lottery tickets themselves from interstate commerce it would allow the free circulation of other paraphernalia of the lottery.
10
Appellee's final contention raises a more troublesome problem under the Criminal Appeals Act under which this case is here. The indictment alleges the knowing interstate carriage of 'records, papers and writings' and that these are 'to be used, and adapted, devised and designed for use' in a forbidden activity. The Government contends that the question whether an acknowledgment can be, and was, so used is one of fact for the trial and not presently before this Court. In United States v. Wiesenfeld Warehouse Co., 376 U.S. 86, 91—92, 84 S.Ct. 559, 563, 11 L.Ed.2d 536, the Court dealt with a defendant's claim that a statute was not applicable to him because of his peculiar situation by stating:
11
'Whatever the truth of this claim, it involves factual proof to be raised defensively at a trial on the merits. We are here concerned only with the construction of the statute as it relates to the sufficiency of the information, and not with the scope and reach of the statute as applied to such facts as may be developed by evidence adduced at a trial.'
12
Here, also, we might justifiably refuse to consider appellee's contention. However, the operation of the New Hampshire Sweepstakes, while a matter of fact, is not a disputed issue and a valid question is raised as to the construction of the use requirement in § 1953. Thus this case may be considered similar to United States v. Hvass, 355 U.S. 570, 78 S.Ct. 501, 2 L.Ed.2d 496, where in an appeal under the Criminal Appeals Act this Court determined the question whether a district court rule was a 'law of the United States' for the purposes of the perjury statute. Thus we may inquire whether an acknowledgment of purchase can, after issuance, have a use in the New Hampshire Sweepstakes.
13
New Hampshire Sweepstakes tickets are sold by a special machine. The customer writes a name and address on each ticket and is not restricted to purchasing for himself.7 The owner of a ticket may be an individual who has not come to New Hampshire to make the purchase. The completed ticket is held in storage in the machine and eventually used in the drawing. The acknowledgment, practically a carbon copy of the ticket, is ejected from the machine. It need not be retained to collect a prize since all prizes are paid directly to the person named on the ticket, and thus appellee claims it has no use in the sweepstakes. But common sense and ordinary experience negative such a formalistic conclusion. The acknowledgment serves a significant psychological purpose by receipting the purchase and assuring the owner that his ticket is properly registered. Before this function is fulfilled by delivery of the acknowledgment to the owner of the ticket the acknowledgment remains a record, paper or writing 'to be used' in the sweepstakes.8 The Government contends that it will prove that the acknowledgments specified in this indictment were in fact being delivered to out-of-state ticket owners who had not themselves purchased their tickets in New Hampshire but had done so through Fabrizio and were thus assured of the proper completion of their purchases. We think it sufficient to hold that such a state of facts is comprehended by this indictment and within the terms of 18 U.S.C. § 1953. The constitutional power of Congress to enact the statute as we have construed it is not questioned by appellee.
14
The judgment of the United States District Court for the Western District of New York is reversed and the case remanded to that court for further proceedings consistent with this opinion. It is so ordered.
15
Judgment reversed and case remanded with directions.
16
Mr. Justice STEWART, whom Mr. Justice FORTAS joins, dissenting.
17
For me, the key issue in this case is whether the acknowledgments of purchase that the appellee carried from New Hampshire to New York come within the prohibition by 18 U.S.C. § 1953(a) of interstate carriage of 'any record, paraphernalia, ticket, certificate, bills, slip, token, paper, writing, or other device used, or to be used, or adapted, devised, or designed for use in * * * wagering pools with respect to a sporting event * * *.' In the operation of New Hampshire's sweepstakes, tickets are sold through special machines, and are retained by the machines after the purchaser fills in a form provided for his name and address. After the tickets are drawn, winners are notified by telegram. The machines also provide the purchaser with an acknowledgment of purchase, which is merely a record of the purchase transaction. In order to be eligible for and to receive a prize, the purchaser of a ticket need not retain or present this purchase acknowledgment.
18
The Government does not contend that federal law makes it a crime for a person from another State to visit New Hampshire, purchase a sweepstakes ticket there, and return to his home. But it has argued that if a visitor to New Hampshire returns home with a receipt that merely acknowledges his personal purchase and in no way affects his eligibility to receive a prize, he has committed a crime punishable by imprisonment of up to five years.1 Thus the Government requires us to assume that Congress has branded as felons many or most of the thousands of visitors to New Hampshire who have purchased sweepstakes tickets there. I do not believe that Congress intended such an unexpected result, which only the most abjectly literal approach to statutory interpretation could tolerate. No plausible legislative purpose would be served by the Government's construction, for when an individual takes an acknowledgment of purchase home from New Hampshire, merely retaining it as a personal record of his purchase, the antigambling policies of other States are in no way undermined, and no opening is provided for the growth of organized racketeering.
19
The Court apparently shares my concern with the overbroad reach of some of the Government's contentions. For the Court's opinion stresses that the Government has informed this Court that in its proof at trial it expects to show that the appellee carried acknowledgments of purchase to New York, not to retain them as personal records of his own purchases, but to deliver them to other people in New York on whose behalf the appellee purchased tickets in New Hampshire. The Court concludes: 'We think it sufficient to hold that such a state of facts is comprehended by this indictment and within the terms of 18 U.S.C. § 1953.' Ante, at 271. I agree that if the appellee had been charged with conducting an interstate scheme for sale of sweepstakes tickets and the proof substantiated the charge, he could be validly convicted under § 1953. In such a case, the acknowledgments of purchase would be 'used, or adapted * * * for use in * * * wagering pools with respect to a sporting event * * *' because they would serve the essential role of providing the ultimate purchasers with a claim against the agent who had purchased tickets in New Hampshire on their behalf. The operation of such a scheme would have the effect of extending sweepstakes sales across state lines, would undermine the antigambling policies of other States, and might provide fertile opportunities for racketeers.2
20
However, I must emphatically disagree with the Court's conclusion that 'such a state of facts is comprehended by this indictment * * *.' The indictment merely charged the appellee with interstate transport of 'acknowledgements of purchase for a sweepstakes race of the State of New Hampshire' and recited the language of § 1953.3 The Government also furnished a bill of particulars that, insofar as relevant, simply reiterated the bare charge that the appellee had carried acknowledgments of purchase across state lines.4 These charges were consonant with the Government's broad theory that all interstate carriage of acknowledgments of purchase is prohibited, even if the acknowledgment is retained solely as a personal record of the carrier's own purchase. That interpretation of the statute, along with the indictment that embodied it, was properly rejected by the trial court.
21
As the Court appears to concede, although the language of its opinion is not altogether clear, the appellee could be validly convicted only if he were shown to have participated in an interstate scheme for selling sweepstakes chances to persons outside New Hampshire. But no hint that the appellee was being charged with such activities appears in the indictment or bill of particulars. The charges here fell far short of the established requirement that an indictment must specify the elements of the offense intended to be charged and apprise the defendant of the case that he must be prepared to meet. See Russell v. United States, 369 U.S. 749, 760—772, 82 S.Ct. 1038, 1045, 1051, 8 L.Ed.2d 240, and the cases discussed therein. And the Government is not entitled to enlarge the indictment now by revamping the whole theory of the prosecution and making new and additional charges against the appellee for the first time in the course of proceedings before this Court. This Court cannot remedy the deficiencies in the indictment by retroactively reading the Government's new charges into it.
22
We long ago rejected the notion that 'it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes * * *.' Ex parte Bain, 121 U.S. 1, 10, 7 S.Ct. 781, 786, 30 L.Ed. 849. See Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252; Russell v. United States, 369 U.S. 749, 770—771, 82 S.Ct. 1038, 1050, 8 L.Ed.2d 240. As the Court in Bain observed, 'Any other doctrine would place the rights of the citizen * * * at the mercy or control of the court or prosecuting attorney * * *.' 121 U.S. at 13, 7 S.Ct. at 787. The Court's opinion today ignores these established principles, and allows the appellee to be tried for a crime that he was not charged with committing.
23
For these reasons, I respectfully dissent.
1
Thus the sufficiency of the indictment as a pleading is not at issue, United States v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 85 L.Ed. 598, nor are questions relating to the bill of particulars presently before us. See United States v. Comyns, 248 U.S. 349, 353, 39 S.Ct. 98, 99, 63 L.Ed. 287. Of course on remand these questions will remain unaffected by anything decided today.
2
Thus 18 U.S.C. § 1084 is limited to persons 'being engaged in the business of betting or wagering.'
3
See Hearings on H.R. 468 before Subcommittee No. 5 of the House Committee on the Judiciary, 87th Cong., 1st Sess., p. 261 (testimony of Mr. Stinson for American Totalisator Co.); Hearings on S. 1653 before the Senate Committee on the Judiciary, 87th Cong., 1st Sess., pp. 20 (testimony of Mr. Jacobs for Jennings & Co.), 25 (testimony of Mr. Nelson for Bally Manufacturing Co.).
4
See, e.g., Hearings on H.R. 468, supra, n. 3, at 26, where the Attorney General made clear that the primary purpose of the bill was to assist local enforcement of laws pertaining to gambling and like offenses: S.Rep. No. 589, 87th Cong., 1st Sess., p. 2, specified that the prohibition of the bill was 'on the transportation of wagering paraphernalia' and would, without amendment, have comprehended the shipment of parimutuel equipment by legitimate business concerns.
5
During the Senate Hearings Assistant Attorney General Miller, representing the Department of Justice, was specifically asked whether the bill was intended only to apply to 'illegal' activities under state law. He unequivocally replied: 'No sir. That proviso is not in here. It was the position of the Department that these types of paraphernalia, records, and other devices should be barred from interstate commerce.' Hearings on S. 1653, supra, note 3, p. 294. Before the House Committee studying the bill Mr. Miller was equally explicit. He noted that the Irish Sweepstakes would be covered by the bill and soon after declared that Congress might consider a special exemption for parimutuel materials since these arose in activities legal under state law. Hearings on H.R. 468, supra, n. 3, p. 352.
6
See H.R.Rep. No. 968, 87th Cong., 1st Sess., pp. 2—3, U.S.Code Cong. & Admin. News 1961, p. 2634; 107 Cong.Rec. 13902 (remarks of Senator Eastland).
7
New Hampshire Sweepstakes Commission, New Hampshire Sweepstakes Program 5—8.
8
See the colloquy between Assistant Attorney General Miller and Senators Keating and Kefauver reported at 293—294 of Senate Hearings on S. 1653, supra, n. 3. There Mr. Miller distinguished between paraphernalia which had served and exhausted its use, e.g., losing tickets on a horse race, and paraphernalia whose function was not yet exhausted.
1
18 U.S.C. § 1953(a) provides that those who are convicted of a violation of the section 'shall be fined not more than $10,000 or imprisoned for not more than five years or both.'
2
New Hampshire has enacted legislation, N.H.Rev.Stat.Ann. § 284:21—o, designed to deter those who seek to profit from such a scheme:
'Purchase of Tickets for a Fee Prohibited. No person shall engage in the business of purchasing or offering to purchase a sweepstakes ticket or tickets for, in behalf of, or in the name of another for a fee or service charge which shall make the ultimate cost of such ticket or tickets to the registered owner thereof greater than the legal price of such ticket or tickets as established by the sweepstakes commission under the authority of this subdivision. Whoever violates the provisions of this section shall be fined not more than five hundred dollars, or imprisoned not more than one year, or both.'
3
The indictment recites, in full: 'The Grand Jury charges: That on or about the 24th day of August, 1964, ANTHONY L. FABRIZIO, knowingly did carry in interstate commerce from Keene, State of New Hampshire to Elmira, State of New York, in the Western District of New York, records, papers and writings, to wit: 75 acknowledgements of purchase for a sweepstakes race of the State of New Hampshire, to be used, and adapted, devised and designed for use, in a wagering pool with respect to a sporting event, that is: a sweepstake race of the State of New Hampshire, as he then well knew; all in violation of Section 1953 of Title 18, U.S.C.'
4
In response to the appellee's contention that the indictment failed to state an offense, the Government's bill of particulars stated: 'It is claimed by the United States that defendant knowingly carried in interstate commerce in violation of § 1953, T. 18, United States Code, 75 written acknowledgements of purchase of State of New Hampshire First Sweepstakes Race of September, 1964.'
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385 U.S. 293
87 S.Ct. 408
17 L.Ed.2d 374
James R. HOFFA, Petitioner,v.UNITED STATES. Thomas Ewing PARKS, Petitioner, v. UNITED STATES. Larry CAMPBELL, Petitioner, v. UNITED STATES. Ewing KING, Petitioner, v. UNITED STATES.
Nos. 32—35.
Argued Oct. 13, 1966.
Decided Dec. 12, 1966.
Joseph A. Fanelli, Washington, D.C., for petitioners.
Fred M. Vinson, Jr., and Nathan Lewin, Washington, D.C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
Over a period of several weeks in the late autumn of 1962 there took place in a federal court in Nashville, Tennessee, a trial by jury in which James Hoffa was charged with violating a provision of the Taft-Hartley Act. That trial, known in the present record as the Test Fleet trial, ended with a hung jury. The petitioners now before us—James Hoffa, Thomas Parks, Larry Campbell, and Ewing King—were tried and convicted in 1964 for endeavoring to bribe members of that jury.1 The convictions were affirmed by the Court of Appeals.2 A substantial element in the Government's proof that led to the convictions of these four petitioners was contributed by a witness named Edward Partin, who testified to several incriminating statements which he said petitioners Hoffa and King had made in his presence during the course of the Test Fleet trial. Our grant of certiorari was limited to the single issue of whether the Government's use in this case of evidence supplied by Partin operated to invalidate these convictions. 382 U.S. 1024, 86 S.Ct. 645, 15 L.Ed.2d 538.
2
The specific question before us, as framed by counsel for the petitioners, is this:
3
'Whether evidence obtained by the Government by means of deceptively placing a secret informer in the quarters and councils of a defendant during one criminal trial so violates the defendant's Fourth, Fifth and Sixth Amendment rights that suppression of such evidence is required in a subsequent trial of the same defendant on a different charge.'
4
At the threshold the Government takes issue with the way this question is worded, refusing to concede that it "placed' the informer anywhere, much less that it did so 'deceptively." In the view we take of the matter, however, a resolution of this verbal controversy is unnecessary to a decision of the constitutional issues before us. The basic facts are clear enough, and a lengthy discussion of the detailed minutiae to which a large portion of the briefs and oral arguments was addressed would serve only to divert attention from the real issues before us.
5
The controlling facts can be briefly stated. The Test Fleet trial, in which James Hoffa was the sole individual defendant, was in progress between October 22 and December 23, 1962, in Nashville, Tennessee. James Hoffa was president of the International Brotherhood of Teamsters. During the course of the trial he occupied a three-room suite in the Andrew Jackson Hotel in Nashville. One of his constant companions throughout the trial was the petitioner King, president of the Nashville local of the Teamsters Union. Edward Partin, a resident of Baton Rouge, Louisiana, and a local Teamsters Union official there, made repeated visits to Nashville during the period of the trial. On these visits he frequented the Hoffa hotel suite, and was continually in the company of Hoffa and his associates, including King, in and around the hotel suite, the hotel lobby, the courthouse, and elsewhere in Nashville. During this period Partin made frequent reports to a federal agent named Sheridan concerning conversations he said Hoffa and King had had with him and with each other, disclosing endeavors to bribe members of the Test Fleet jury. Partin's reports and his subsequent testimony at the petitioners' trial unquestionably contributed, directly or indirectly, to the convictions of all four of the petitioners.3
6
The chain of circumstances which led Partin to be in Nashville during the Test Fleet trial extended back at least to September of 1962. At that time Partin was in jail in Baton Rouge on a state criminal charge. He was also under a federal indictment for embezzling union funds, and other indictments for state offenses were pending against him. Between that time and Partin's initial visit to Nashville on October 22 he was released on bail on the state criminal charge, and proceedings under the federal indictment were postponed. On October 8, Partin telephoned Hoffa in Washington, D.C., to discuss local union matters and Partin's difficulties with the authorities. In the course of this conversation Partin asked if he could see Hoffa to confer about these problems, and Hoffa acquiesced. Partin again called Hoffa on October 18 and arranged to meet him in Nashville. During this period Partin also consulted on several occasions with federal law enforcement agents, who told him that Hoffa might attempt to tamper with the Test Fleet jury, and asked him to be on the lookout in Nashville for such attempts and to report to the federal authorities any evidence of wrongdoing that he discovered. Partin agreed to do so.
7
After the Test Fleet trial was completed, Partin's wife received four monthly installment payments of $300 from government funds, and the state and federal charges against Partin were either dropped or not actively pursued.
8
Reviewing these circumstances in detail, the Government insists the fair inference is that Partin went to Nashville on his own initiative to discuss union business and his own problems with Hoffa, that Partin ultimately cooperated closely with federal authorities only after he discovered evidence of jury tampering in the Test Fleet trial, that the payments to Partin's wife were simply in partial reimbursement of Partin's subsequent out-of-pocket expenses, and that the failure to prosecute Partin on the state and federal charges had no necessary connection with his services as an informer. The findings of the trial court support this version of the facts,4 and these findings were accepted by the Court of Appeals as 'supported by substantial evidence.' 349 F.2d at 36. But whether or not the Government 'placed' Partin with Hoffa in Nashville during the Test Fleet trial, we proceed upon the premise that Partin was a government informer from the time he first arrived in Nashville on October 22, and that the Government compensated him for his services as such. It is upon that premise that we consider the constitutional issues presented.
9
Before turning to those issues we mention an additional preliminary contention of the Government. The petitioner Hoffa was the only individual defendant in the Test Fleet case, and Partin had conversations during the Test Fleet trial only with him and with the petitioner King. So far as appears, Partin never saw either of the other two petitioners during that period. Consequently, the Government argues that, of the four petitioners, only Hoffa has standing to raise a claim that his Sixth Amendment right to counsel in the Test Fleet trial was impaired, and only he and King have standing with respect to the other constitutional claims. Cf. Wong Sun v. United States, 371 U.S. 471, 487—488, 491—492, 83 S.Ct. 407, 417—418, 419—420, 9 L.Ed.2d 441; Jones v. United States, 362 U.S. 257, 259—267, 80 S.Ct. 725, 730—734, 4 L.Ed.2d 697. It is clear, on the other hand, that Partin's reports to the agent Sheridan uncovered leads that made possible the development of evidence against petitioners Parks and Campbell. But we need not pursue the nuances of these 'standing' questions, because it is evident in any event that none of the petitioners can prevail unless the petitioner Hoffa prevails. For that reason, the ensuing discussion is confined to the claims of the petitioner Hoffa (hereinafter petitioner), all of which he clearly has standing to invoke.
I.
10
It is contended that only by violating the petitioner's rights under the Fourth Amendment was Partin able to hear the petitioner's incriminating statements in the hotel suite, and that Partin's testimony was therefore inadmissible under the exclusionary rule of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. The argument is that Partin's failure to disclose his role as a government informer vitiated the consent that the petitioner gave to Partin's repeated entries into the suite, and that by listening to the petitioner's statements Partin conducted an illegal 'search' for verbal evidence.
11
The preliminary steps of this argument are on solid ground. A hotel room can clearly be the object of Fourth Amendment protection as much as a home or an office. United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59. The Fourth Amendment can certainly be violated by guileful as well as by forcible intrusions into a constitutionally protected area. Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647. And the protections of the Fourth Amendment are surely not limited to tangibles, but can extend as well to oral statements. Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734.
12
Where the argument falls is in its misapprehension of the fundamental nature and scope of Fourth Amendment protection. What the Fourth Amendment protects is the security a man relies upon when he places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile.5 There he is protected from unwarranted governmental intrusion. And when he puts something in his filing cabinet, in his desk drawer, or in his pocket, he has the right to know it will be secure from an unreasonable search or an unreasonable seizure. So it was that the Fourth Amendment could not tolerate the warrantless search of the hotel room in Jeffers, the purloining of the petitioner's private papers in Gouled, or the surreptitious electronic surveillance in Silverman. Countless other cases which have come to this Court over the years have involved a myriad of differing factual contexts in which the protections of the Fourth Amendment have been appropriately invoked. No doubt the future will bring countless others. By nothing we say here do we either foresee or foreclose factual situations to which the Fourth Amendment may be applicable.
13
In the present case, however, it is evident that no interest legitimately protected by the Fourth Amendment is involved. It is obvious that the petitioner was not relying on the security of his hotel suite when he made the incriminating statements to Partin or in Partin's presence. Partin did not enter the suite by force or by stealth. He was not a surreptitious eavesdropper. Partin was in the suite by invitation, and every conversation which he heard was either directed to him or knowingly carried on in his presence. The petitioner, in a word, was not relying on the security of the hotel room; he was relying upon his misplaced confidence that Partin would not reveal his wrongdoing.6 As counsel for the petitioner himself points out, some of the communications with Partin did not take place in the suite at all, but in the 'hall of the hotel,' in the 'Andrew Jackson Hotel lobby,' and 'at the courthouse.'
14
Neither this Court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it. Indeed, the Court unanimously rejected that very contention less than four years ago in Lopez v. United States, 373 US. 427, 83 ,S.Ct. 1381, 10 L.Ed.2d 462. In that case the petitioner had been convicted of attempted bribery of an internal revenue agent named Davis. The Court was divided with regard to the admissibility in evidence of a surreptitious electronic recording of an incriminating conversation Lopez had had in his private office with Davis. But there was no dissent from the view that testimony about the conversation by Davis himself was clearly admissible.
15
As the Court put it, 'Davis was not guilty of an unlawful invasion of petitioner's office simply because his apparent willingness to accept a bribe was not real. Compare Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. He was in the office with petitioner's consent, and while there he did not violate the privacy of the office by seizing something surreptitiously without petitioner's knowledge. Compare Gouled v. United States, supra. The only evidence obtained consisted of statements made by Lopez to Davis, statements which Lopez knew full well could be used against him by Davis if he wished. * * *' 373 U.S. at 438, 83 S.Ct. at 1387, 10 L.Ed.2d 462. In the words of the dissenting opinion in Lopez, 'The risk of being overheard by an eavesdropper or betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak.' Id., 373 U.S. at 465, 83 S.Ct. at 1402, 10 L.Ed.2d 462. See also Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312.
16
Adhering to these views, we hold that no right protected by the Fourth Amendment was violated in the present case.
II.
17
The petitioner argues that his right under the Fifth Amendment not to 'be compelled in any criminal case to be a witness against himself' was violated by the admission of Partin's testimony. The claim is without merit.
18
There have been sharply differing views within the Court as to the ultimate reach of the Fifth Amendment right against compulsory self-incrimination. Some of those differences were aired last Term in Miranda v. State of Arizona, 384 U.S. 436, 499, 504, 526, 86 S.Ct. 1602, 1640, 1643, 1654, 16 L.Ed.2d 694. But since at least as long ago as 1807, when Chief Justice Marshall first gave attention to the matter in the trial of Aaron Burr,7 all have agreed that a necessary element of compulsory self-incrimination is some kind of compulsion. Thus, in the Miranda case, dealing with the Fifth Amendment's impact upon police interrogation of persons in custody, the Court predicated its decision upon the conclusion '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. * * *' 384 U.S., at 467, 86 S.Ct. at 1624, 16 L.Ed.2d 694.
19
In the present case no claim has been or could be made that the petitioner's incriminating statements were the product of any sort of coercion, legal or factual. The petitioner's conversations with Partin and in Partin's presence were wholly voluntary. For that reason, if for no other, it is clear that no right protected by the Fifth Amendment privilege against compulsory self-incrimination was violated in this case.
III.
20
The petitioner makes two separate claims under the Sixth Amendment, and we give them separate consideration.
A.
21
During the course of the Test Fleet trial the petitioner's lawyers used his suite as a place to confer with him and with each other, to interview witnesses, and to plan the following day's trial strategy. Therefore, argues the petitioner, Partin's presence in and around the suite violated the petitioner's Sixth Amendment right to counsel, because an essential ingredient thereof is the right of a defendant and his counsel to prepare for trial without intrusion upon their confidential relationship by an agent of the government, the defendant's trial adversary. Since Partin's presence in the suite thus violated the Sixth Amendment, the argument continues, any evidence acquired by reason of his presence there was constitutionally tainted and therefore inadmissible against the petitioner in this case. We reject this argument.
22
In the first place, it is far from clear to what extent Partin was present at conversations or conferences of the petitioner's counsel. Several of the petitioner's Test Fleet lawyers testified at the hearing on the motion to suppress Partin's testimony in the present case. Most of them said that Partin had heard or had been in a position to hear at least some of the lawyers' discussions during the Test Fleet trial. On the other hand, Partin himself testified that the lawyers 'would move you out' when they wanted to discuss the case, and denied that he made any effort to 'get into or be present at any conversations between lawyers or anything of that sort,' other than engaging in such banalities as 'how things looked,' or 'how does it look?' He said he might have heard some of the lawyers' conversations, but he didn't know what they were talking about, 'because I wasn't interested in what they had to say about the case.' He testified that he did not report any of the lawyers' conversations to Sheridan, because the latter 'wasn't interested in what the attorneys said.' Partin's testimony was largely confirmed by Sheridan. Sheridan did testify, however, to one occasion when Partin told him about a group of prospective character witnesses being interviewed in the suite by one of the petitioner's lawyers, who 'was going over' some written 'questions and answers' with them. This information was evidently relayed by Sheridan to the chief government attorney at the Test Fleet trial.8
23
The District Court in the present case apparently credited Partin's testimony, finding 'there has been no interference by the government with any attorneyclient relationship of any defendant in this case.' The Court of Appeals accepted this finding. 349 F.2d at 36. In view of Sheridan's testimony about Partin's report of the interviews with the prospective character witnesses, however, we proceed here on the hypothesis that Partin did observe and report to Sheridan at least some of the activities of defense counsel in the Test Fleet trial.
24
The proposition that a surreptitious invasion by a government agent into the legal camp of the defense may violate the protection of the Sixth Amendment has found expression in two cases decided by the Court of Appeals for theDistrict of Columbia Circuit, Caldwell v. United States, 92 U.S.App.D.C. 355, 205 F.2d 879, and Coplon v. United States, 89 U.S.App.D.C. 103, 191 F.2d 749. Both of those cases dealt with government intrusion of the grossest kind upon the confidential relationship between the defendant and his counsel. In Coplon, the defendant alleged that government agents deliberately intercepted telephone consultations between the defendant and her lawyer before and during trial. In Caldwell, the agent, '(i)n his dual capacity as defense assistant and Government agent * * * gained free access to the planning of the defense. * * * Neither his dealings with the defense nor his reports to the prosecution were limited to the proposed unlawful acts of the defense: they covered many matters connected with the impending trial.' 92 U.S.App.D.C., at 356, 205 F.2d at 880.
25
We may assume that the Coplon and Caldwell cases were rightly decided, and further assume, without deciding, that the Government's activities during the Test Fleet trial were sufficiently similar to what went on in Coplon and Caldwell to invoke the rule of those decisions. Consequently, if the Test Fleet trial had resulted in a conviction instead of a hung jury, the conviction would presumptively have been set aside as constitutionally defective. Cf. Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26.
26
But a holding that it follows from this presumption that the petitioner's conviction in the present case should be set aside would be both unprecedented and irrational. In Coplon and in Caldwell, the Court of Appeals held that the Government's intrusion upon the defendant's relationship with his lawyer 'invalidates the trial at which it occurred.' 89 U.S.App.D.C., at 114, 191 F.2d at 759; 92 U.S.App.D.C., at 357, 205 F.2d at 881. In both of those cases the court directed a new trial,9 and the second trial in Caldwell resulted in a conviction which this Court declined to review. 95 U.S.App.D.C. 35, 218 F.2d 370; 349 U.S. 930, 75 S.Ct. 773, 99 L.Ed. 1260. The argument here, therefore, goes far beyond anything decided in Caldwell or in Coplon. For if the petitioner's argument were accepted, not only could there have been no new conviction on the existing charges in Caldwell, but not even a conviction on other and different charges against the same defendant.
27
It is possible to imagine a case in which the prosecution might so pervasively insinuate itself into the councils of the defense as to make a new trial on the same charges impermissible under the Sixth Amendment.10 But even if it were further arguable that a situation could be hypothesized in which the Government's previous activities in undermining a defendant's Sixth Amendment rights at one trial would make evidence obtained thereby inadmissible in a different trial on other charges, the case now before us does not remotely approach such a situation.
28
This is so because of the clinching basic fact in the present case that none of the petitioner's incriminating statements which Partin heard were made in the presence of counsel, in the hearing of counsel, or in connection in any way with the legitimate defense of the Test Fleet prosecution. The petitioner's statements related to the commission of a quite separate offense—attempted bribery of jurors—and the statements were made to Partin out of the presence of any lawyers.
29
Even assuming, therefore, as we have, that there might have been a Sixth Amendment violation which might have made invalid a conviction, if there had been one, in the Test Fleet case, the evidence supplied by Partin in the present case was in no sense the 'fruit' of any such violation. In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, a case involving exclusion of evidence under the Fourth Amendment, the Court stated that 'the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' Maguire, Evidence of Guilt, 221 (1959).' 371 U.S. at 488, 83 S.Ct. at 417, 9 L.Ed.2d 441.
30
Even upon the premise that this same strict standard of excludability should apply under the Sixth Amendment—a question we need not decide—it is clear that Partin's evidence in this case was not the consequence of any 'exploitation' of a Sixth Amendment violation. The petitioner's incriminating statements to which Partin testified in this case were totally unrelated in both time and subject matter to any assumed intrusion by Partin into the conferences of the petitioner's counsel in the Test Fleet trial. These incriminating statements, all of them made out of the presence or hearing of any of the petitioner's counsel, embodied the very antithesis of any legitimate defense in the Test Fleet trial.
B.
31
The petitioner's second argument under the Sixth Amendment needs no extended discussion. That argument goes as follows: Not later than October 25, 1962, the Government had sufficient ground for taking the petitioner into custody and charging him with endeavors to tamper with the Test Fleet jury. Had the Government done so, it could not have continued to question the petitioner without observance of his Sixth Amendment right to counsel. Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. Therefore, the argument concludes, evidence of statements made by the petitioner subsequent to October 25 was inadmissible, because the Government acquired that evidence only by flouting the petitioner's Sixth Amendment right to counsel.
32
Nothing in Massiah, in Escobedo, or in any other case that has come to our attention, even remotely suggests this novel and paradoxical constitutional doctrine, and we decline to adopt it now. There is no constitutional right to be arrested.11 The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect, risking a violation of the Fourth Amendment if they act too soon, and a violation of the Sixth Amendment if they wait too long. Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.
IV.
33
Finally, the petitioner claims that even if there was no violation—'as separately measured by each such Amendment'—of the Fourth Amendment, the compulsory self-incrimination clause of the Fifth Amendment, or of the Sixth Amendment in this case, the judgment of conviction must nonetheless be reversed. The argument is based upon the Due Frocess Clause of the Fifth Amendment. The 'totality' of the Government's conduct during the Test Fleet trial operated, it is said, to "offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses' (Rochin v. (People of) California, 342 U.S. 165, 169 (72 S.Ct. 205, 208, 96 L.Ed. 183)).'
34
The argument boils down to a general attack upon the use of a government informer as 'a shabby thing in any case,' and to the claim that in the circumstances of this particular case the risk that Partin's testimony might be perjurious was very high. Insofar as the general attack upon the use of informers is based upon historic 'notions' of 'English-speaking peoples,' it is without historical foundation. In the words of Judge Learned Hand, 'Courts have countenanced the use of informers from time immemorial; in cases of conspiracy, or in other cases when the crime consists of preparing for another crime, it is usually necessary to rely upon them or upon accomplices because the criminals will almost certainly proceed covertly. * * *' United States v. Dennis, 2 Cir., 183 F.2d 201, at 224.
35
This is not to say that a secret government informer is to the slightest degree more free from all relevant constitutional restrictions than is any other government agent. See Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246. It is to say that the use of secret informers is not per se unconstitutional.
36
The petitioner is quite correct in the contention that Partin, perhaps even more than most informers, may have had motives to lie. But it does not follow that his testimony was untrue, nor does it follow that his testimony was constitutionally inadmissible. The established safeguards of the Anglo-American legal system leave the veracity of a witness to be tested by cross-examination, and the credibility of his testimony to be determined by a properly instructed jury. At the trial of this case, Partin was subjected to rigorous cross-examination, and the extent and nature of his dealings with federal and state authorities were insistently explored.12 The trial judge instructed the jury, both specifically13 and generally,14 with regard to assessing Partin's credibility. The Constitution does not require us to upset the jury's verdict.
37
Affirmed.
38
Mr. Justice WHITE and Mr. Justice FORTAS took no part in the consideration or decision of these cases.
39
Mr. Chief Justice WARREN, dissenting.
40
I cannot agree either with the opinion of the Court affirming these convictions or with the separate opinions of Mr. Justice CLARK and Mr. Justice DOUGLAS to the effect that the writs of certiorari were improvidently granted.
I.
41
As to the latter, it seems to me that the finding of the District Court which so troubles my Brothers CLARK and DOUGLAS is in fact no roadblock to our review of the important questions presented by the petitions. It has long been settled that this Court will not be bound by the findings of lower courts when it is alleged that fundamental constitutional rights have been violated. Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964); Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Watts v. State of Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949); Hooven & Allison Co. v. Evatt, 324 U.S. 652, 65 S.Ct. 870, 89 L.Ed. 1252 (1945); Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935). We have said, 'The duty of this Court to make its own independent examination of the record when federal constitutional deprivations are alleged is clear, resting, as it does, on our solemn responsibility for maintaining the Constitution inviolate.' Napue v. People of State of Illinois, 360 U.S. 264, 271, 79 S.Ct. 1173, 1178, 3 L.Ed.2d 1217 (1959).
42
The finding in question here is not one which the District Judge arrived at by resolving contradictory testimony on the basis of credibility. Findings of fact based on crediting the testimony of some witnesses and discrediting the testimony of others may properly be accorded some insulation from appellate review because of the superior opportunity of the trial judge to observe the demeanor of the witnesses. In this case, however, the testimony concerning the circumstances surrounding Partin's entry into Hoffa's councils was not substantially in dispute. While those circumstances are set forth in greater detail infra, a brief summary discloses that Partin, after discussing Hoffa with federal agents and learning of their intense and mutually beneficial interest, successfully solicited an invitation to meet with Hoffa. Partin's release from jail was assisted by the federal agents, and he was compensated in a financial sense as well; in return, he kept the federal agents fully informed of all that occurred from the outset of his contact with Hoffa.
43
Surely the only reasonable construction of these facts is that Partin was acting as a paid federal informer when he traveled to Nashville and attached himself to Hoffa. And the fact that Hoffa on Partin's urging agreed to a meeting in Nashville is not inconsistent with this conclusion. An invasion of basic rights made possible by prevailing upon friendship with the victim is no less proscribed than an invasion accomplished by force. See Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921).
44
Moreover, at the time we granted the petitions for certiorari in these cases, we knew exactly what we know now. The findings of the District Court were in the record then before us, and no new facts to change the situation have since come to light. In short, there is nothing which should prevent us from facing up to the important questions presented and determining whether the convictions can stand either in light of the Constitution or under our power of supervision over the administration of justice in federal courts.
II.
45
For me, this case and two others decided today (Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312, and Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 439, 17 L.Ed.2d 394) present for comparison of different facets of the Government's use of informers and undercover agents. In two cases of the set I have voted to sustain the activity of the Government. But in this case I find it impossible to do so because the nature of the official practices evidenced here is offensive to the fair administration of justice in federal courts.
46
At this late date in the annals of law enforcement, it seems to me that we cannot say either that every use of informers and undercover agents is proper or, on the other hand, that no uses are. There are some situations where the law could not adequately be enforced without the employment of some guile or misrepresentation of identity. A law enforcement officer performing his official duties cannot be required always to be in uniform or to wear his badge of authority on the lapel of his civilian clothing. Nor need he be required in all situations to proclaim himself an arm of the law. It blinks the realities of sophisticated, modern-day criminal activity and legitimate law enforcement practices to argue the contrary. However, one of the important duties of this Court is to give careful scrutiny to practices of government agents when they are challenged in cases before us, in order to insure that the protections of the Constitution are respected and to maintain the integrity of federal law enforcement.
47
I find these three cases which we decide today quite distinguishable from each other in this regard. Although all three involve what may be termed official deception in order to gather evidence for criminal prosecutions, the police practices reviewed are essentially different. The simplest of the three for me is Lewis, wherein a federal narcotics agent, having reason to believe that Lewis was a trafficker in narcotics, called him on the telephone using an assumed name and told him that a mutual friend had said Lewis sold narcotics. Lewis affirmed the nature of his occupation and invited the agent to his place of business which, as an incidental matter, turned out also to be his home. The agent went there, purchased narcotics and arranged for future dealings to occur at the same place but on a reduced-price basis. Later, a second purchase of narcotics was executed by the agent in the same manner.
48
In Lewis, then, there was no intrusion upon the privacy of the household. Nothing was heard, seen, or taken by the agent that was not a necessary part of the business transactions between him and Lewis. The purpose of the agent's visits was to buy narcotics from Lewis, and the details of their business dealings were all that concerned him. Lewis simply is not a case where an undercover agent invaded a place used both as a business location and a home and then, overtly or covertly, either seized something or observed or heard something unrelated to the business purpose of his visit. As we said in affirming Lewis' conviction, the principles elaborated in Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921), would protect against such overreaching. We do not endorse unconscionable activities or the use of an unreliable informer when we sustain the undercover work of the agent responsible for Lewis' conviction. Compare Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958).
49
In the Osborn case, the petitioner employed Robert Vick, a police officer of Nashville, Tennessee, to investigate persons who were members of a panel from which a federal criminal jury was to be selected in a prior trial of James Hoffa in that city. Although he knew Vick's loyalty was due the police department, when he learned that Vick had a cousin on the panel he urged Vick to offer the cousin $10,000 in return for the latter's promise to vote for acquittal if selected to sit on the petit jury. Vick informed federal authorities of this proposal, and made an affidavit to that effect for the judge who was to preside at the Hoffa trial. The judge, in order to determine the truthfulness of the affidavit and to protect the integrity of the trial, authorized the equipping of Vick with a recording device to be used in further conversations with petitioner. I see nothing wrong with the Government's thus verifying the truthfulness of the informer and protecting his credibility in this fashion.1 Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963). This decision in no sense supports a conclusion that unbridled use of electronic recording equipment is to be permitted in searching out crime. And it does not lend judicial sanction to wiretapping, electronic 'bugging' or any of the other questionable spying practices that are used to invade privacy and that appear to be increasingly prevalent in our country today. Cf. Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961); Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26 (1966); United States v. Schipani, 362 F.2d 825, cert. denied 385 U.S. 934, 87 S.Ct. 293, 17 L.Ed.2d 217, rehearing granted, judgment vacated, and case remanded on suggestion of Solicitor General, 385 U.S. 372, 87 S.Ct. 533, 17 L.Ed.2d 428.
50
But I consider both Lewis and Osborn to be materially, even fundamentally, different from this Hoffa case. Here, Edward Partin, a jailbird languishing in a Louisiana jail under indictments for such state and federal crimes as embezzlement, kidnapping, and manslaughter (and soon to be charged with perjury and assault), contacted federal authorities and told them he was willing to become, and would be useful as, an informer against Hoffa who was then about to be tried in the Test Fleet case. A motive for his doing this is immediately apparent—namely, his strong desire to work his way out of jail and out of his various legal entanglements with the State and Federal Governments.2 And it is interesting to note that, if this was his motive, he has been uniquely successful in satisfying it. In the four years since he first volunteered to be an informer against Hoffa he has not been prosecuted on any of the serious federal charges for which he was at that time jailed, and the state charges have apparently vanished into thin air.
51
Shortly after Partin made contact with the federal authorities and told them of his position in the Baton Rouge Local of the Teamsters Union and of his acquaintance with Hoffa, his bail was suddenly reduced from $50,000 to $5,000 and he was released from jail. He immediately telephoned Hoffa, who was then in New Jersey, and, by collaborating with a state law enforcement official, surreptitiously made a tape recording of the conversation. A copy of the recording was furnished to federal authorities. Again on a pretext of wanting to talk with Hoffa regarding Partin's legal difficulties, Partin telephoned Hoffa a few weeks later and succeeded in making a date to meet in Nashville where Hoffa and his attorneys were then preparing for the Test Fleet trial. Unknown to Hoffa, this call was also recorded and again federal authorities were informed as to the details.
52
Upon his arrival in Nashville, Partin manifested his 'friendship' and made himself useful to Hoffa, thereby worming his way into Hoffa's hotel suite and becoming part and parcel of Hoffa's entourage. As the 'faithful' servant and factotum of the defense camp which he became, he was in a position to overhear conversations not directed to him, many of which were between attorneys and either their or prospective defense witnesses. Pursuant to the general instructions he received from federal authorities to report 'any attempts at witness intimidation or tampering with the jury,' anything illegal,' or even 'anything of interest,' Part in became the equivalent of a bugging device which moved with Hoffa wherever he went. Everything Partin saw or heard was reported to federal authorities and much of it was ultimately the subject matter of his testimony in this case. For his services he was well paid by the Government, both through devious and secret support payments to his wife and, it may be inferred, by executed promises not to pursue the indictments under which he was charged at the time he became an informer.
53
This type of informer and the uses to which he was put in this case evidence a serious potential for undermining the integrity of the truth-finding process in the federal courts. Given the incentives and background of Partin, no conviction should be allowed to stand when based heavily on his testimony. And that is exactly the quicksand upon which these convictions rest, because without Partin, who was the principal government witness, there would probably have been no convictions here. Thus, although petitioners make their main arguments on constitutional grounds and raise serious Fourth and Sixth Amendment questions, it should not even be necessary for the Court to reach those questions. For the affront to the quality and fairness of federal law enforcement which this case presents is sufficient to require an exercise of our supervisory powers. As we said in ordering a new trial in Mesarosh v. United States, 352 U.S. 1, 14, 77 S.Ct. 1, 8, 1 L.Ed.2d 1 (1956), a federal case involving the testimony of an unsavory informer who, the Government admitted, had committed perjury in other cases:
54
'This is a federal criminal case, and this Court has supervisory jurisdiction over the proceedings of the federal courts. If it has any duty to perform in this regard, it is to see that the waters of justice are not polluted. Pollution having taken place here, the condition should be remedied at the earliest opportunity.
55
'The government of a strong and free nation does not need convictions based upon such testimony. It cannot afford to abide with them.'
56
See also McNabb v. United States, 318 U.S. 332, 341, 63 S.Ct. 608, 613, 87 L.Ed. 819 (1943).
57
I do not say that the Government may never use as a witness a person of dubious or even bad character. In performing its duty to prosecute crime the Government must take the witnesses as it finds them. They may be persons of good, bad, or doubtful credibility, but their testimony may be the only way to establish the facts, leaving it to the jury to determine their credibility. In this case, however, we have a totally different situation. Here the Government reaches into the jailhouse to employ a man who was himself facing indictments far more serious (and later including one for perjury) than the one confronting the man against whom he offered to inform. It employed him not for the purpose of testifying to something that had already happened, but rather for the purpose of infiltration to see if crimes would in the future be committed. The Government in its zeal even assisted him in gaining a position from which he could be a witness to the confidential relationship of attorney and client engaged in the preparation of a criminal defense. And, for the dubious evidence thus obtained, the Government paid an enormous price. Certainly if a criminal defendant insinuated his informer into the prosecution's camp in this manner he would be guilty of obstructing justice. I cannot agree that what happened in this case is in keeping with the standards of justice in our federal system and I must, therefore, dissent.
58
Mr. Justice CLARK, joined by Mr. Justice DOUGLAS.
59
I would dismiss the writs of certiorari as improvidently granted.
60
The writs of certiorari granted by the Court in these cases are limited to the following question:
61
'Whether evidence obtained by the Government by means of deceptively placing a secret informer in the quarters and councils of a defendant during one criminal trial so violates the defendant's Fourth, Fifth and Sixth Amendment rights that suppression of such evidence is required in a subsequent trial of the same defendant on a different charge.' My examination of the record reveals that at the hearing on petitioner's motion to suppress the evidence obtained by the informer, Partin, the District Judge found that 'the government did not place this witness Mr. Partin in the defendants' midst * * * rather that he was knowingly and voluntarily placed in their midst by one of the defendants (Hoffa).' This specific finding was approved by the Court of Appeals as being 'supported by substantial evidence and * * * not clearly erroneous.' 349 F.2d at 36. No attack is made here on the findings.
62
It has long been the rule of this Court that it 'cannot undertake to review concurrent findings of fact by two courts below in the absence of a very obvious and exceptional showing of error.' Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 275, 69 S.Ct. 535, 538, 93 L.Ed. 672 (1949). My careful examination of the record shows that there is a choice here between two permissible views as to the weight of the evidence. The District Judge found the weight of the evidence to be with the Government and the Court of Appeals has approved his finding. I cannot say on this record that it is clearly erroneous* United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949).
63
In the light of this finding, by which we are bound, there is no issue before us for decision since no evidence was 'obtained by the Government by means of deceptively placing a secret informer in the quarters and councils of' petitioner Hoffa.
64
I would therefore dismiss the writs as improvidently granted.
1
Petitioners Hoffa, Parks, and Campbell were convicted under 18 U.S.C. § 1503 for endeavoring corruptly to influence Test Fleet juror Gratin Fields. Petitioners Hoffa and King were convicted of a similar offense involving Test Fleet juror Mrs. James M. Paschal.
2
349 F.2d 20.
3
Partin testified at the trial of this case that petitioners Hoffa and King had made the following statements during the course of the Test Fleet trial:
On October 22, the day Partin first arrived in Nashville, King told him that a meeting had been 'set up on the jury that night.' That evening Hoffa told Partin that he wanted Partin to stay in Nashville in order to call on some people. Hoffa explained 'that they was going to get to one juror or try to get to a few scattered jurors and take their chances.' The next day Partin was told by Hoffa that Hoffa might want him 'to pass something for him.' As Hoffa said this, he hit his rear pocket with his hand. On October 25, the day after Test Fleet juror James Tippens had reported to the trial judge that he had been approached with a bribe offer,
Partin asked Hoffa about his wanting Partin to 'pass something.' Hoffa replied, 'The dirty bastards went in and told the Judge that his neighbor had offered him $10,000,' and added, 'We are going to have to lay low for a few days.' King told Partin on October 26 that he intended to influence a female juror, Mrs. Paschal, in Hoffa's favor, and added that the juror and her husband, a highway patrolman, 'loved money, and $10,000.00 (is) a lot of money.' Hoffa informed Partin on October 29 that he 'would pay 15 or $20,000, whatever—whatever it cost to get to the jury.' On November 5, in Partin's presence, Hoffa berated King for failing in his promises to 'get the patrolman.' King then told Partin that he was arranging a meeting with the highway patrolman, but on November 7 King admitted to Partin that he had not yet contacted the highway patrolman and that Hoffa had been complaining 'about not getting to the jury.' Hoffa criticized King in the presence of Partin on November 14 for 'not making a contact like he told him he would,' adding that he 'wanted some insurance.' Later the same day, King told Partin that he had arranged to meet with the highway patrolman, and that he had prepared a cover story to allay suspicion. On November 15 Hoffa asked King in Partin's presence whether he had 'made the contacts.' King related to Partin on November 20 a meeting that King had had with juror Paschal's husband, stating that the highway patrolman wanted a promotion rather than money. The same day Hoffa told Partin that he was disturbed because 'the Highway Patrolman wouldn't take the money,' adding that if he had 'taken the money it would have pinned him down and he couldn't have backexd up.'
There was other evidence at the trial that petitioner Campbell, a union associate of Hoffa's, and petitioner Parks, Campbell's uncle, had made bribe offers to Gratin Fields, a Negro juror. On November 7, according to Partin, Hoffa told Partin that he had 'the colored male juror in (his) hip pocket,' and that Campbell 'took care of it.' Hoffa told Partin that Campbell, a Negro, was related to Fields, and that while Fields had refused the bribe he would not 'go against his own people.' Hoffa concluded, '(I)t looks like our best bet is a hung jury unless we can get to the foreman of the jury. If they have a hung jury, it will be the same as acquittal because they will never try the case again.'
4
In denying the defense motion to suppress Partin's testimony, the trial court stated: 'I would further find that the government did not place this witness Mr. Partin in the defendants' midst or have anything to do with placing him in their midst, rather that he was knowingly and voluntarily placed in their midst by one of the defendants.'
The trial court's memorandum denying a motion for a new trial contained the following statement:
'The action of the Court in denying the motions of the defendants to suppress the testimony of the witness Partin is complained of in Grounds 41 and 42 of the motions for new trial. It is contended that one of the findings of fact of the Court with respect to the motion to suppress was rendered incorrect by subsequent evidence in the case. It is contended that the telephone transcriptions of the telephone calls between Partin and Hoffa on October 8 and 18, 1962, established that the defendant Hoffa did not invite Partin to Nashville. The telephone transcriptions reflect that the defendant Hoffa agreed to an appointment to see Partin in Nashville. Even if the defendant Hoffa did not initiate the invitation of Partin to come to Nashville, but rather Partin solicited the invitation, this does not in any way alter the Court's finding that the Government did not place or keep Partin with the defendant Hoffa. * * * The Government requested of Partin only that he report information of jury tampering or other illegal activity of which he became aware. Partin voluntarily furnished such information. He remained in Nashville or returned to Nashville either at the request or with the consent of the defendant Hoffa and not at the instruction of the Government.'
5
We do not deal here with the law of arrest under the Fourth Amendment.
6
The applicability of the Fourth Amendment if Partin had been a stranger to the petitioner is a question we do not decide. Cf. Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312.
7
'Many links frequently compose that chain of testimony which is necessary to convict any individual of a crime. It appears to the court to be the true sense of the rule that no witness is compellable to furnish any one of them against himself. * * *' United States v. Burr (In re Willie), 25 Fed.Cas. 38, 40 (No. 14,692e) (C.C.D.Va.1807). (Emphasis supplied.)
8
Petitioner maintains that the cross-examination of one of these character witnesses at the Test Fleet trial shows that the prosecution availed itself of the information transmitted by Partin. The following exchange between the prosecutor and witness occurred:
Q. 'Did (defense counsel) give you anything to read, Mr. Sammut?'
A. 'No, sir, not even a newspaper.'
Q. 'Not even a newspaper? I am not talking about newspapers, I am talking with respect to your testimony. Did they give you anything to read with respect to your testimony?'
A. 'After I talked to them.'
Q. 'They gave you written questions and answers, didn't they?'
A. 'The questions that they asked me and the questions that I answered.'
9
In Coplon, the grant of a new trial was conditioned on the defendant's proof of her wiretapping allegations.
10
In the Caldwell case, the Court of Appeals implicitly recognized the possibility of a case arising in which a showing could be made of 'prejudice to the defense of such a nature as would necessarily render a subsequent trial unfair to the accused.' 92 U.S.App.D.C. 355, 357, n. 11, 205 F.2d 879, 881—882, n. 11.
11
We put to one side the extraordinary problems that would have arisen if the petitioner had been arrested and charged during the progress of the Test Fleet trial.
12
Partin underwent cross-examination for an entire week. The defense was afforded wide latitude to probe Partin's background, character, and ties to the authorities; it was permitted to explore matters that are normally excludable, for example, whether Partin had been charged with a crime in 1942, even though that charge had never been prosecuted.
13
The judge instructed the jury that it was petitioner's contention that he 'did not invite Edward Partin to come to Nashville, Tennessee, during the trial of (the Test Fleet case) but that the said Edward Partin came of his own accord under the pretense of attempting to convince Mr. Hoffa that the Teamsters local union in Baton Rouge, Louisiana should not be placed in trusteeship by reason of Partin's being under indictment and other misconduct on Partin's part, but for the real purpose of fabricating evidence against Hoffa in order to serve his own purposes and interests.'
14
The jury was instructed: 'You should carefully scrutinize the testimony given and the circumstances under which each witness has testified, and every matter in evidence which tends to indicate whether the witness is worthy of belief. Consider each witness' intelligence, his motives, state of mind, his demeanor and manner while on the witness stand. Consider also any relation each witness may bear to either side of the case * * *. All evidence of a witness whose self-interest is shown from either benefits received, detriments suffered, threats or promises made, or any attitude of the witness which might tend to prompt testimony either favorable or unfavorable to the accused should be considered with caution and weighed with care.'
1
The recording was not used here as a means to avoid calling the informer to testify. As I noted in my opinion concurring in the result in Lopez (373 U.S., at 441, 83 S.Ct. at 1389, 10 L.Ed.2d 462), I would not sanction the use of a secretary made recording other than for the purposes of corroborating the testimony of a witness who can give firsthand testimony concerning the recorded conversations and who is made available for cross-examination.
2
One Sydney Simpson, who was Partin's cellmate at the time the latter first contacted federal agents to discuss Hoffa, has testified by affidavit as follows:
'Sometime in September, 1962, I was transferred from the Donaldsonville Parish Jail to the Baton Rouge Parish Jail. I was placed in a cell with Partin. For the first few days, Partin acted sort of brave. Then when it was clear that he was not going to get out in a hurry, he became more excited and nervous. After I had been in the same cell with Partin for about three days, Partin said, 'I know a way to get out of here. They want Hoffa more than they want me.' Partin told me that he was going to get one of the deputies to get Bill Daniels. Bill Daniels is an officer in the State of Louisiana. Partin said he wanted to talk to Daniels about Hoffa. Partin said that he was going to talk to Captain Edwards and ask him to get Daniels. A deputy, whose name is not known to me, came and took Partin from the cell. Partin remained away for several hours.
'A few days later Partin was released from the jail. From the day when I first saw the deputy, until the date when Partin was released, Partin was out of the cell most of the day and sometimes part of the night. On one occasion Partin returned to the cell and said, 'It will take a few more days and we will have things straightened out, but don't worry.' Partin was taken in and out of the cell frequently each day. Partin told me during this time that he was working with Daniels and the FBI to frame Hoffa. On one occasion I asked Partin if he knew enough about Hoffa to be of any help to Daniels and the FBI, and Partin said, 'It doesn't make any difference. If I don't know it, I can fix it up.'
'While we were in the cell, I asked Partin why he was doing this to Hoffa. Partin replied: 'What difference does it make? I'm thinking about myself. Aren't you thinking about yourself? I don't give a damn about Hoffa. * * *' R. 171—172.
*
At one point the informer, Partin, testified: 'Mr. Hoffa is the one told me he wanted me to stick around.' Petitioners' own witnesses testified that Partin was in the suite 'virtually every day' as well as the 'nightly meetings,' had 'ready access' to the files and offices and acted as 'sergeant-at-arms' just outside the door of the suite. Hoffa did not testify at the hearing on the motion to suppress.
| 01
|
385 U.S. 231
87 S.Ct. 446
17 L.Ed.2d 330
Ben W. FORTSON, Jr., Individually, and as Secretary of State of Georgia, etc., Appellant,v.John MORRIS et al.
No. 800.
Argued Dec. 5, 1966.
Decided Dec. 12, 1966.
Rehearing Denied Jan. 9, 1967.
See 385 U.S. 1021, 87 S.Ct. 719.
Harold N. Hill, Jr., Atlanta, Ga., for appellant.
Charles Morgan, Jr., andEmmet J. Bondurant, Atlanta, Ga., for appellees.
Mr. Justice BLACK delivered the opinion of the Court.
1
Since 1824 a provision of the Constitution of the State of Georgia, now Art. V, § I, IV, has provided that its Governor shall be selected (1) by a majority of votes cast in a general election, and (2) if no candidate receives a majority of votes at such election, then a majority of the members of the Georgia General Assembly shall elect the Governor 'from the two persons having the highest number of votes * * *.'1 At the State's general election, held Tuesday, November 8, 1966, no single candidate received a majority of the votes cast. A Georgia three-judge federal district court has in this case enjoined the State Assembly from electing one of the two highest candidates as Governor on the ground that this method of election, required by Article V of the Georgia Constitution, would deny Georgia voters equal protection of the laws in violation of the Fourteenth Amendment. We uphold the constitutionality of Article V of the State Constitution, for so long as this provision is applied as it is written, we perceive no conflict with the Equal Protection Clause. We reverse the District Court's judgment.
2
The District Court erroneously relied on Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821, to strike down Article V of the State's Constitution. The Gray case held that it had been demonstrated that Georgia voters were denied equal protection of the laws by the operation of a county-unit system under which state officials were elected by a majority of counties voting as units instead of by a majority of individual voters. The result was that the number of votes of persons living in large counties was given no more weight in electing state officers than was given to a far fewer number of votes of persons residing in small counties. This discrimination against large county voters was held to deny them the equal protection of the laws. That case, as was emphasized, had to do with the equal right of 'all who participate in the election,' 372 U.S. at 379, 83 S.Ct., at 808, to vote and have their votes counted without impairment or dilution. But as the Court said, 372 U.S. at 378, 83 S.Ct., at 807, the case was 'only a voting case.' Not a word in the Court's opinion indicated that it was intended to compel a State to elect its governors or any other state officers or agents through elections of the people rather than through selections by appointment or elections by the State Assembly. It is wrongly cited as having either expressly or impliedly decided that a State cannot, if it wishes, permit its legislative body to elect its Governor.
3
The language of Article V of the State Constitution struck down by the District Court has been a part of Georgia's State Constitution since 1824 and was readopted by the people in 1945. It set up two ways to select the Governor. The first, and preferred one, was election by a majority of the people; the second, and alternative one, was election by the State Assembly if any one candidate failed to receive a majority of the popular vote. Under the second method, in the legislative election the votes of the people were not to be disregarded but the State Assembly was to consider them as, in effect, nominating votes and to limit itself to choosing between the two persons on whom the people had bestowed the highest number of votes. There is no provision of the United States Constitution or any of its amendments which either expressly or impliedly dictates the method a State must use to select its Governor. A method which would be valid if initially employed is equally valid when employed as an alternative. It would be surprising to conclude that, after a State has already held two primaries and one general election to try to elect by a majority, the United States Constitution compels it to continue to hold elections in a futile effort to obtain a majority for some particular candidate. Statewide elections cost time and money and it is not strange that Georgia's people decided to avoid repeated elections. The method they chose for this purpose was not unique, but was well known and frequently utilized before and since the Revolutionary War. Georgia Governors were selected by the State Legislature, not the people, until 1824. At that time a new constitution provided for popular election, but with the provision that upon the failure of any one candidate to receive a majority, the General Assembly should elect.
4
Two States, Mississippi and Vermont,2 that provide for majority voting also provide for state legislative election of their governors in case of no majority in the general election. Thirty-eight States of the Union which today provide for election of their governors by a plurality also provide that in case of a tie vote the State Legislatures shall elect.3
5
It thus turns out that Georgia, clearly acting within its rights as a State, has decided that, any one candidate failing to obtain a majority in a general election, its General Assembly will elect its Governor. Its clear choice has remained in its constitution for 142 years. The District Court below treated Article V of the Georgia Constitution as the valid law of the State except as it thought itself compelled to strike it down because of Gray v. Sanders, supra. The Gray case, however, did no more than to require the State to eliminate the county-unit machinery from its election system. The State did this in an election that resulted in the election of no candidate. Its duty now, under Article V of its Constitution, is to proceed to have the General Assembly elect its Governor from the two highest candidates in the election, unless, as some of the parties contend, the entire legislative body is incapable of performing its responsibility of electing a Governor because it is malapportioned. But this is not correct. In Toombs v. Fortson, 384 U.S. 210, 86 S.Ct. 1464, 16 L.Ed.2d 482, affirming 241 F.Supp. 65, we held that with certain exceptions, not here material, the Georgia Assembly could continue to function until May 1, 1968. Consequently the Georgia Assembly is not disqualified to elect a Governor as required by Article V of the State's Constitution. Neither is it disqualified by the fact that its Democratic members had obligated themselves to support the Democratic nominee in the general election on November 8, 1966. That election is over, and with it terminated any promises by the Democratic legislators to support the Democratic nominee.
6
Article V of Georgia's Constitution provides a method for selecting the Governor which is as old as the Nation itself. Georgia does not violate the Equal Protection Clause by following this article as it was written.
7
Reversed.
8
Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE, Mr. Justice BRENNAN, and Mr. Justice FORTAS, concur, dissenting.
9
This is an appeal from a decision of a three-judge district court declaring unconstitutional and enjoining the enforcement of Article V, Section I, Paragraph IV, of the Georgia Constitution which authorizes the election of the Governor of Georgia by the General Assembly when no candidate has received a majority of the total votes cast in the general election.1
10
We are told that in the November 8, 1966, general election for Governor, there were 955,770 votes cast as follows:
11
Howard H. Callaway------------- 449,894 votes or 47.07%
12
Lester G. Maddox--------------- 448,044 votes or 46.88%
13
Ellis G. Arnall---------------- 57,832 votes or 6.05%
14
The Georgia Election Code provides that '(n)o candidate shall be nominated for public office in any primary or elected to public office in any election unless such candidate shall have received a majority of the votes cast to fill such nomination or public office.' Ga.Code Ann. § 34—1514 (Supp.1965). That law goes on to provide that where no candidate 'receives a majority of the votes cast, a runoff primary or election shall be held, between the two candidates receiving the highest number of votes,' and the candidate who receives 'a majority of the votes cast in such runoff' shall be declared the winner. The Attorney General of Georgia rendered an opinion on October 21, 1966, that the provisions of § 34—1514 were in conflict with the provisions of the Georgia Constitution and that the latter controlled in the event no candidate for Governor received a majority in the general election.
15
This action for a declaratory judgment was brought by citizens of Georgia residing in counties throughout the State who voted in the November 8, 1966, general election for Governor. They ask for the benefit of a runoff election between the two candidates who received the highest number of votes as provided in § 34—1514 or a special election pursuant to the Georgia Election Code.2 The District Court held the provision of the Georgia Constitution which placed the election of the Governor in the General Assembly unconstitutional and void. 262 F.Supp. 93. It issued a stay for a period of 10 days so as to enable the appellant to seek an additional stay here and retained jurisdiction for such other and further proceedings as might be deemed applicable and just. The case is here by appeal which we noted, and we expedited the hearing because of the urgency of the issue presented. 385 U.S. 955, 87 S.Ct. 387.
16
The Court misstates the question we must decide. It is not whether Georgia may select a Governor through a legislative election.3 It is whether the legislature may make the final choice when the election has been entrusted to the people and no candidate has received a majority of the votes. In other words, the legislative choice is only a part of the popular election machinery. The 1824 amendment to the 1798 Constitution of Georgia, which gave the legislature power to elect a governor, treated that stage as only one of two in the general election.4 The first stage, then as now, was an election open to 'the persons qualified to vote for members of the general assembly'. Ga.Const. 1798, Art. II, § 2, as amended, 1824.
17
It is said that the general election is over and that a new, and different, alternative procedure is now about to be used. But that is belied by the realities. The primary election selected the party candidates, the choices of the two parties are still in balance, and the legislative choice is restricted to those two candidates. The election, commencing with the primary, will indeed not be finally completed until the winner has taken the oath of office. Up to then the vacancy which occasioned the election has not been filled.
18
Our starting point is what we said in Gray v. Sanders, 372 U.S. 368, 379—380, 83 S.Ct. 801, 808:
19
'Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote—whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment. The concept of 'we the people' under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications.'
20
It is argued with earnestness that if the electoral college can be used to select a President, a legislature can be used to select a governor. It is said that there is no more a violation of the 'one person, one vote' principle in the one than in the other. But the Twelfth Amendment creates the exception in case of a President. There is no like exception in the choice of a governor.5
21
'The only weighting of votes sanctioned by the Constitution concerns matters of representation, such as the allocation of Senators irrespective of population and the use of the electoral college in the choice of a President. * * * But once the class of voters is chosen and their qualifications specified, we see no constitutional way by which equality of voting power may be evaded. * * *
22
'The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.' Gray v. Sanders, supra, at 380—381, 83 S.Ct., at 808.
23
If the legislature is used to determine the outcome of a general election, the votes cast in that election would be weighted, contrary to the principle of 'one person, one vote.' All the vices we found inherent in the county unit system in Gray v. Sanders are inherent when the choice is left to the legislature. A legislator when voting for governor has only a single vote. Even if he followed the majority vote of his constituency, he would necessarily disregard the votes of those who voted for the other candidate, whether their votes almost carried the day or were way in the minority.6 He would not be under a mandate to follow the majority or plurality votes in his constituency, but might cast his single vote on the side of the minority in his district. Even if he voted for the candidate receiving a plurality of votes cast in his district and even if each Senator and Representative followed the same course, a candidate who received a minority of the popular vote might receive a clear majority of the votes cast in the legislature. As stated by the District Court:
24
'The Georgia election system in the constitutional provision now under consideration permits unequal treatment of the voters within the class of voters selected, and it thus cannot stand. Many arguments may be made, but we need go no further than to point out, as stated, that the candidate receiving the lesser number of votes may be elected by the General Assembly. This would give greater weight to the votes of those citizens who voted for this candidate and necessarily dilute the votes of those citizens who cast their ballots for the candidate receiving the greater number of votes. The will of the greater number may be ignored.' 262 F.Supp., at 95.
25
I have said enough to indicate why the substitution of the Georgia Legislature for a runoff vote is an unconstitutional weighting of votes, having all the vices of the county unit system that we invalidated in Gray v. Sanders.
26
What is approved today can, moreover, be the instrument to perpetuate a 'one party' system in like derogation of the principle of 'one person, one vote.' The pledge that every Democratic member of the Georgia Legislature took provides in part: 'I further pledge myself to support at the General Election of November 8, 1966, all candidates nominated by the Democratic Party of the State of Georgia.' That election has not been completed. We are, as I have said, in the second stage of it. The Democrats control 183 seats7 in a 205-member House and 46 seats in a 54-member Senate. We would be less than naive to believe that the momentum of that oath has now been dissipated and that the predominantly Democratic legislature has now become neutral.
27
The fact that this constitutional provision allowing the legislature to choose the Governor was adopted by the people of Georgia is 'without federal constitutional significance, if the scheme adopted fails to satisfy the basic requirements of the Equal Protection Clause, as delineated in our opinion in Reynolds v. Sims (84 S.Ct. 1362, 12 L.Ed.2d 506).' See Lucas v. Forty-Fourth General Assembly of State of Colorado, 377 U.S. 713, 737, 84 S.Ct. 1459, 12 L.Ed.2d 632. We dealt there with an apportionment plan that had been adopted by a popular referendum. We repeat what we said: 'A citizen's constitutional rights can hardly be infringed simply because a majority of the people choose that it be.' Id., 736—737, 84 S.Ct. 1474.
28
I would affirm the judgment of the three-judge court and remand the cause for the fashioning of an appropriate decree for a runoff election in which the people's choice will be determined.
29
Mr. Justice FORTAS, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS join, dissenting.
30
I join the opinion of my Brother DOUGLAS, but I add the following:
31
The specific question before us is the validity of the Georgia constitutional provision which, after vesting in the people 'full and complete power to elect a Governor,'1 provides that if no candidate receives a majority, the legislature shall select the winner from the two candidates receiving the highest popular vote. The legislature may select the candidate who received fewer popular votes than his rival. In my opinion, this scheme is forbidden by the Equal Protection Clause of the Fourteenth Amendment as construed by this Court.
32
1. Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801 (1963), related to Georgia primary elections to nominate candidates for statewide office, including Governor. It held that where the vote cast by each citizen does not have full and equal effect as a result of operation of the county unit system, the Equal Protection Clause is violated. If the Constitution of Georgia incorporated the county unit system as part of the mechanics for election of Governor, I assume there would be no doubt that Gray v. Sanders would invalidate the provision. Unless the Court is overruling Gray v. Sanders, it presumably would not validate a Georgia constitutional provision which said that if a majority of the votes are not cast for one candidate, they will be recomputed on a county unit basis which is not proportionate to the voting population, and the result of that recomputation would determine the winner. It is no less a denial of equal protection of the laws for the result of an election to be determined, not by the voters, but by the legislature on a basis which is not related to the votes cast. No less than the county unit system, this means that the vote cast by a citizen is subject to nullification by the legislature. The integrity of the vote is undermined and destroyed by any scheme which can result in the selection of a person as Governor who receives the lesser number of popular votes. If the voting right is to mean anything, it certainly must be protected against the possibility that victory will go to the loser.
33
2. It distorts reality to say, as the majority here do, that this election is to be scrubbed and ignored, and to proceed as if we were dealing with a situation in which Georgia's Constitution merely provided for the selection of Governor by the legislature. That is not the case. If it were the intent of the Constitution to scrub the popular election and to cause selection by the legislature as an independent process, the legislature would not be bound to select from the two who received at the polls the highest number of votes. The legislature would be given free choice. As my Brother DOUGLAS' opinion shows, the Constitution attempts something quite different. It purports to give the legislature power to complete the process begun at the polls—to cast aside the vote of the electorate and award the office to the winner or the loser of the popular election, as it may see fit. The analogy to Gray v. Sanders is clear. This is just as if, for example, the voters expressed their preferences at the polls, and then the winner was selected not on the basis of receiving most votes, but on the basis of selection by officials of the counties concerned.2
34
3. The Georgia Legislature is concededly malapportioned, and is under a federal court order to reapportion itself. Toombs v. Fortson, 384 U.S. 210, 86 S.Ct. 1464, 16 L.Ed.2d 482 (1966), affirming 241 F.Supp. 65 (D.C.N.D.Ga.1965). See also Fortson v. Toombs, 379 U.S. 621, 85 S.Ct. 598, 13 L.Ed.2d 527 (1965). A majority of the legislators in Georgia's legislature may represent a minority of the voters. But the Court today concludes that despite the fact that it has branded the legislature as apportioned in violation of the Constitution of the United States, it may nevertheless select the Governor. The Court states as its reason for disregarding this that 'In Toombs v. Fortson * * * we held that with certain exceptions, not here material, the Georgia Assembly could continue to function until May 1, 1968.' This is indeed a weak reed for so monumental a conclusion. The use of a malapportioned legislature to select a Governor is to perpetuate the electoral vices which this Court decreed that the Equal Protection Clause of the Fourteenth Amendment forbade a State to incorporate in its election procedures. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362 (1964); Gray v. Sanders, supra. We have declined to deprive a malapportioned legislature of its de facto status as a legislature. But not until today has this Court allowed a malapportioned legislature to be the device for doing indirectly what a State may not do directly. If this Court had foreseen that events would place the Georgia Legislature in a position to override the vote of a plurality of the voters and to select as Governor of the State the loser at the polls, I expect that it would have included this power as one of the 'exceptions,' forbidden to this legislature which, this Court has held, functions only by judicial sufferance despite its constitutional infirmity. To a reader of Gray v. Sanders, Fortson v. Toombs, and Toombs v. Fortson, it must seem inconceivable that the Court would permit this malapportioned legislature to select Georgia's Governor in these circumstances. Indeed, the irony of the matter is that a three-judge federal court held that the Georgia Legislature was so malapportioned that it could not properly submit to the voters a new Constitution, adopted by both houses of the Georgia Legislature, which would have abolished the provisions for legislative selection of a Governor and have substituted a runoff or special election. See Fortson v. Toombs, supra. On appeal, this Court, per curiam, declined to rule that the District Court's decree was unlawful, but because it was represented that the decree might be moot, the Court remanded for reconsideration in light of the circumstances which allegedly made the decree no longer pertinent. Fortson, supra. But now the Court holds that this same unreformed legislature is not so malapportioned that it cannot itself select the Governor by its direct action! I confess total inability to understand how the two rulings can be reconciled.
35
4. In denying the applicability of Gray v. Sanders, the Court says that it was 'only a voting case' and that it has nothing to do with a State's decision that the voters will be ousted from their functions, the votes cast by them nullified, and the legislature authorized to select the candidate that most of the electorate repudiated. I respectfully submit that this, too, is 'a voting case.' It is no less a voting case because it deals with a state mechanism for total disregard of the principle of one man, one vote. It is no less a voting case because it deals with the election of the Governor rather than his nomination as in Gray v. Sanders. I should assume—diffidently in view of today's startling result—that this Court would not rule that the Federal Constitution would tolerate a state constitutional provision that would enable the Governor to appoint the legislature—or to appoint any legislators for election districts if no candidate received a majority of the votes—or two-thirds—or three-fourths. But there is no difference in principle between this and the result sanctioned today. If a State can validly provide that the result at the polls can be disregarded and the outcome removed from democratic processes where no candidate for Governor receives a majority, there is no reason why the same rule cannot be applied to legislators. Moreover, the Court today announces in an offhand manner, as a side effect of today's decision, without adequate argument or consideration, that a State may today, as some States did long ago, provide that its Governor shall be selected by its legislature in total disregard of the voters. I do not believe that the issue is so easy. Much water has gone under the bridge since the late 1700's and the early 1800's. Our understanding and conception of the rights guaranteed to the people by the 'stately admonitions'3 of the Fourteenth Amendment have deepened, and have resulted in a series of decisions,4 enriching the quality of our democracy, which certainly do not codify State's rights, governmental theories or conceptions of human liberties as they existed in 1824, the date when Georgia adopted its present system of choosing a Governor. I have no doubt, for example, that in the early days of the Nation many of the state legislatures were malapportioned. See Reynolds v. Sims, supra, 377 U.S., at 573, n. 53, and 602—607 (dissent), 84 S.Ct., at 1387, and 1402—1405. But this did not enshrine that condition forever beyond the reach of constitutional prohibition. Certainly, the antiquity of the practice did not cause this Court to refrain from invalidating malapportionment under the Equal Protection Clause. As Mr. Justice Holmes said long ago,
36
'(W)hen we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.' State of Missouri v. Holland, 252 U.S. 416, 433, 40 S.Ct. 382, 383, 64 L.Ed. 641 (1920).5
37
5. I do not believe that this Court is the sole custodian of the Constitution, or of the democratic liberties of the people. The power and the responsibility rests also with the States, the people, and with lower courts, including the courageous District Court that in the present case insisted upon following this Court's decision in Gray v. Sanders. But if the people of Georgia—or Maine or California or New York, for that matter—should adopt a constitutional amendment to provide for election of their Governor by the legislature—or for selection of the upper house of their legislature by their Governor, for example—I do not believe that the constitutionality of these measures could be cavalierly assumed. Perhaps this Court's voting rights cases could not so easily be nullified. Their meaning and thrust are perhaps deeper than the mechanics of the tally. They are, one may hope, not merely much ado about form. They represent, one has been led to believe, an acknowledgment that the republican form of government guaranteed by the Constitution, read in light of the General Welfare Clause, the guaranties of equal protection of the laws and the privileges and immunities of citizens of the United States, requires something more than an adherence to form. This Court's apportionment and voting rights decisions soundly reflect a deepening conception, in keeping with the development of our social, ethical, and religious understanding, of the meaning of our great constitutional guaranties. As such, they have reinvigorated our national political life at its roots so that it may continue its growth to realization of the full statute of our constitutional ideal. Today's decision is a startling reversal; a belittling, I say with all respect, of our Constitution's dynamic provisions with respect to the basic instrument of democracy—the vote.
38
6. The Court brushes off Gray v. Sanders by saying that it has to do only with the 'equal right' of all voters 'to vote and have their votes counted without impairment or dilution.' That is so. But that is precisely the issue in the present case. We have not heretofore been so beguiled by changes in the scenery that we have lost sight of principle. See Terry v. Adams, 345 U.S. 461 esp. 465, n. 1, 73 S.Ct. 809, 811, 97 L.Ed. 1152 (1953); Smith v. Allwright, 321 U.S. 649, 661, 64 S.Ct. 757, 763, 88 L.Ed. 987 (1944). See also Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 534 (1964). Here, too, we are dealing at least with the 'impairment' of the vote—indeed, with the obliteration of its effect. It is not merely the casting of the vote or its mechanical counting that is protected by the Constitution. It is the function—the office—the effect given to the vote, that is protected.
39
A vote is not an object of art. It is the sacred and most important instrument of democracy and of freedom. In simple terms, the vote is meaningless—it no longer serves the purpose of the democratic society—unless it, taken in the aggregate with the votes of other citizens, results in effecting the will of those citizens provided that they are more numerous than those of differing views. That is the meaning and effect of the great constitutional decisions of this Court.
40
In short, we must be vigilant to see that our Constitution protects not just the right to cast a vote, but the right to have a vote fully serve its purpose. If the vote cast by all of those who favor a particular candidate exceeds the number cast in favor of a rival, the result is constitutionally protected § a matter of equal protection of the laws from nullification except by the voters themselves. The candidate receiving more votes than any other must receive the office unless he is disqualified on some constitutionally permissible basis or unless, in a runoff or some other type of election, the people properly and regularly, by their votes, decide differently. 'The right to vote is too important in our free society to be stripped of judicial protection'6 by any other interpretation of our Constitution.
41
In essence, Gray v. Sanders held that the Equal Protection Clause is violated when persons are elected to statewide office on a basis other than their receiving more votes than their rivals. In my opinion, this principle is exactly applicable here.
42
It is with the greatest regret that I conclude that today's decision reflects a retreat from constitutional principles so soundly and so proudly developed to apply the Constitution's magnificent admonitions to the deepening moral and human principles of our time. I would affirm the District Court.
1
Article V, § I, IV (Ga.Code Ann. § 2—3004). 'How returns published.—The members of each branch of the General Assembly shall convene in the Representative Hall, and the President of the Senate and Sepaker of the House of Representatives shall open and publish the returns in the presence and under the direction of the General Assembly; and the person having the majority of the whole number of votes, shall be declared duly elected Governor of this State; but, if no person shall have such majority, then from the two persons having the highest number of votes, who shall be in life, and shall not decline an election at the time appointed for the General Assembly to elect, the General Assembly shall immediately, elect a Governor viva voce; and in all cases of election of a Governor by the General Assembly, a majority of the members present shall be necessary to a choice.'
2
Miss.Const., Art. 5, §§ 140, 141; Vt. Const., c. II, § 39.
3
This is by statutory provision in North Carolina and by constitutional provision in Alabama, Arizona, Arkansas, Colorado, Connecticut, Delaware, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.
1
The Georgia Constitution, Art. V, § I, IV, provides:
'The members of each branch of the General Assembly shall convene in the Representative Hall, and the President of the Senate and Sepaker of the House of Representatives shall open and publish the returns in the presence and under the direction of the General Assembly; and the person having the majority of the whole number of votes, shall be declared duly elected Governor of this State; but, if no person shall have such majority, then from the two persons having the highest number of votes, who shall be in life, and shall not decline an election at the time appointed for the General Assembly to elect, the General Assembly shall immediately, elect a Governor viva voce; and in all cases of election of a Governor by the General Assembly, a majority of the members present shall be necessary to a choice.'
2
Ga.Code Ann. § 34—1515 (Supp.1965) provides:
'Whenever any primary or election shall fail to fill a particular nomination or office and such failure cannot be cured by a runoff primary or election * * * then the authority, with whom the candidates for such nomination or office filed their notice of candidacy, shall thereupon call a special primary or election to fill such position.'
3
Georgia's state auditor is chosen by the legislature. Ga.Code Ann. § 40—1801.
4
Originally Georgia left the selection of Governor to the legislature, the House selecting three candidates and the Senate choosing one of the three by majority vote Ga.Const.1789, Art. II, § 2.
5
'We think the analogies to the electoral college, to districting and redistricting, and to other phases of the problems of representation in state or federal legislatures or conventions are inapposite. The inclusion of the electoral college in the Constitution, as the result of specific historical concerns, validated the collegiate principle despite its inherent numerical inequality, but implied nothing about the use of an analogous system by a State in a statewide election. No such specific accommodation of the latter was ever undertaken, and therefore no validation of its numerical inequality ensued.' Gray v. Sanders, 372 U.S. 368, 378, 83 S.Ct. 801, 807.
6
In Gray v. Sanders, supra, in speaking of this same vice in the county unit system we said:
'* * * if a candidate won 6,000 of 10,000 votes in a particular county, he would get the entire unit vote, the 4,000 other votes for a different candidate being worth nothing and being counted only for the purpose of being discarded.' 372 U.S., at 381, 83 S.Ct., at 809, n. 12.
7
This figure does not take into account a runoff election held on November 22, 1966, to fill a House seat.
1
Thompson v. Talmadge, 201 Ga. 867, 880, 41 S.E.2d 883, 895 (1947). Thompson invalidated selection of a Governor by the legislature when the candidate who received a majority of the votes cast died before taking office.
2
This would resemble the presidential electoral college system. Gray v. Sanders expressly states that while this system is beyond judicial reach because it is specifically incorporated in the Federal Constitution, it does not indicate the constitutionality of analogous state schemes. 372 U.S., at 378, 83 S.Ct. 801. See also Reynolds v. Sims, 377 U.S. 533, 572—577, 84 S.Ct. 1362 (1964).
3
Learned Hand, Spirit of Liberty 163 (1960).
4
See, e.g., Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Gray v. Sanders, supra; Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966).
5
Only last Term, the Court held in Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079 (1966), that the right to vote in state elections cannot be burdened or conditioned by a poll tax. We observed:
'We agree, of course, with Mr. Justice Holmes that the Due Process Clause of the Fourteenth Amendment 'does not enact Mr. Herbert Spencer's Social Statics' (Lochner v. State of New York, 198 U.S. 45, 75, 25 S.Ct. 539, 45 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.' 383 U.S., at 669, 86 S.Ct., at 1082.
See also the classic statement by Mr. Justice Brandeis, in his dissent in Olmstead v. United States, 277 U.S. 438, 472, 48 S.Ct. 564, 570, 72 L.Ed. 944 (1928):
"We must never forget,' said Mr. Chief Justice Marshall in McCulloch v. State of Maryland, 4 Wheat. 316, 407, 4 L.Ed. 579, 'that it is a constitution we are expounding.' Since then this court has repeatedly sustained the exercise of power by Congress, under various clauses of that instrument, over objects of which the fathers could not have dreamed. * * * * We have likewise held that general limitations on the powers of government, like those embodied in the due process clauses of the Fifth and Fourteenth Amendments, do not forbid the United States or the states from meeting modern conditions by regulations which 'a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive.' Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 387, 47 S.Ct. 114, 118, (71 L.Ed. 303); Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000. Clauses guaranteeing to the individual protection against specific abuses of power, must have a similar capacity of adaptation to a changing world.'
See also Weems v. United States, 217 U.S. 349, 373, 30 S.Ct. 544, 551, 54 L.Ed. 793 (1910).
6
Wesberry v. Sanders, supra, at 7.
| 12
|
385 U.S. 214
87 S.Ct. 473
17 L.Ed.2d 318
IMMIGRATION AND NATURALIZATION SERVICE, Petitioner,v.Giuseppe ERRICO. Muriel May SCOTT, nee Plummer, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE.
Nos. 54 and 91.
Argued Oct. 20, 1966.
Decided Dec. 12, 1966.
Sol. Gen., Thurgood Marshall, for Immigration and Naturalization service.
Frank M. Ierulli, Portland, Or., for Giuseppe Errico.
Julius C. Biervliet, Mount Vernon, N.Y., for Muriel May Scott.
Mr. Cheif Justice WARREN delivered the opinion of the Court.
1
We granted certiorari in these cases to resolve a conflict between the Second and Ninth Circuits on their interpretations of § 241(f) of the Immigration and Nationality Act.1 The issue is identical in both cases and, therefore, lends itself to a single opinion.
Section 241(f) reads as follows:
2
'The provisions of this section relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not apply to an alien otherwise admissible at the time of entry who is the spouse, parent, or a child of a United States citizens or of an alien lawfully admitted for permanent residence.'
3
The issue is whether the statute saves from deportation an alien who misrepresents his status for the purpose of evading quota restrictions, if he has the necessary familial relationship to a United States citizen or lawful permanent resident.
4
Respondent Errico in No. 54, a native of Italy, falsely represented to the immigration authorities that he was a skilled mechanic with specialized experience in repairing foreign automobiles. On the basis of that misrepresentation he was granted first preference quota status under the statutory preference scheme then in effect, and entered the United States in 1959 with his wife. A child was born to the couple in 1960 and acquired United States citizenship at birth. In 1963 deportation proceedings were commenced against Errico on the ground that he was excludable at the time of entry as not 'of the proper status under the quota specified in the immigrant visa.'2 Throughout the proceedings Errico insisted that he was saved from deportation by § 241(f). The special inquiry officer of the Immigration and Naturalization Service ruled that relief under § 241(f) was not available because Errico had not complied with quota requirements and, hence, was not 'otherwise admissible at the time of entry.' The Board of Immigration Appeals affirmed the deportation order but the Court of Appeals for the Ninth Circuit reversed, holding that the construction of the statute adopted by the Board would strip it of practically all meaning, since a material misrepresentation would presumably be given to conceal some factor that would bear on admissibility. 349 F.2d 541. We granted certiorari. 383 U.S. 941, 86 S.Ct. 1196, 16 L.Ed.2d 205.
5
Petitioner Scott in No. 91, a native of Jamaica, contracted a marriage with a United States citizen by proxy solely for the purpose of obtaining nonquota status for entry into the country. She has never lived with her husband and never intended to do so. After entering the United States in 1958, she gave birth to an illegitimate child, who became an American citizen at birth. When the fraud was discovered, deportation proceedings were begun, and a special inquiry officer of the Immigration and Naturalization Service found her deportable on the ground that she was not a nonquota immigrant as specified in her visa.3 The Board of Immigration Appeals affirmed, and the Court of Appeals for the Second Circuit affirmed the Board. 350 F.2d 279. The court agreed with the Board of Immigration Appeals that a sham marriage contracted solely to circumvent the immigration laws would not confer nonquota status on an alien as the spouse of an American citizen. It also affirmed the ruling that Mrs. Scott was not entitled to relief under § 241(f) because she was not otherwise admissible at the time of entry, since her country's quota was oversubscribed. We granted certiorari. 383 U.S. 941, 86 S.Ct. 1211, 16 L.Ed.2d 206.
6
At the outset it should be noted that even the Government agrees that § 241(f) cannot be applied with strict literalness. Literally, § 241(f) applies only when the alien is charged with entering in violation of § 212(a)(19) of the statute, which excludes from entry '(a)ny alien who * * * has procured a visa or other documentation * * * by fraud, or by willfully misrepresenting a material fact.'4 Under this interpretation, an alien who entered by fraud could be deported for having entered with a defective visa or for other documentary irregularities even if he would have been admissible if he had not committed the fraud. The Government concedes that such an interpretation would be inconsistent with the manifest purpose of the section, and the administrative authorities have consistently held that § 241(f) waives any deportation charge that results directly from the misrepresentation regardless of the section of the statute under which the charge was brought, provided that the alien was 'otherwise admissible at the time of entry.'5 The Government's argument in both cases is that to be otherwise admissible at the time of entry the alien must show that he would have been admitted even if he had not lied, and that the aliens in these cases would not have been admitted because of the quota restrictions. It is the argument of the aliens that our adoption of the government thesis would negate the intention of Congress to apply fair humanitarian standards in granting relief from the consequences of their fraud to aliens who are close relatives of United States citizens, and that the statute would have practically no effect if construed as the Government argues, since it requires a considerable stretch of the imagination to conceive of an alien making a material misrepresentation that did not conceal some factor that would make him inadmissible.
7
The sharp divergence of opinion among the circuit judges in these cases indicates that the meaning of the words 'otherwise admissible' is not obvious. An interpretation of these words requires close attention to the language of § 241(f), to the language of its predecessor, § 7 of the 1957 Act,6 and to the legislative history of these provisions.
8
The legislative history begins with the enactment of the Displaced Persons Act of 1948, 62 Stat. 1009. This Act provided for the admission to the United States of thousands of war refugess, many from countries that had fallen behind the Iron Curtain. Some of these refugees misrepresented their nationality or homeland while in Europe to avoid being repatriated to a Communist country. In so doing, however, they fell afoul of § 10 of the Act, which provided that persons making willful misrepresentations for the purpose of gaining admission 'shall thereafter not be admissible into the United States.' The plight of these refugees, who were excluded from the United States for misrepresentations that were generally felt to be justifiable, inspired recurring proposals for statutory reform. When the Act was revised and codified in 1952, the House Committee recommended adding a provision to save such refugees from deportation when they had misrepresented their nationality or homeland only to avoid repatriation and persecution.7 The Conference Committee deleted the provision, but announced its sympathy with the refugees in the following terms:
9
'It is also the opinion of the conferees that the sections of the bill which provide for the exclusion of aliens who obtained travel documents by fraud or by willfully misrepresenting a material fact, should not serve to exclude or to deport certain bona fide refugees who in fear of being forcibly repatriated to their former homelands misrepresented their place of birth when applying for a visa and such misrepresentation did not have as its basis the desire to evade the quota provisions of the law or an investigation in the place of their former residence. The conferees wish to emphasize that in applying fair humanitarian standards in the administrative adjudication of such cases, every effort is to be made to prevent the evasion of law by fraud and to protect the interest of the United States.' H.R.Rep.No.2096, 82d Cong., 2d Sess., p. 128 (1952), U.S.Code Cong. & Admin.News 1952, p. 1754.
10
The Immigration and Naturalization Service and the Attorney General did not construe the statute as the Conference Committee had recommended, believing that the explicit statutory language did not allow for an exemption for justifiable misrepresentations. Refugees who misrepresented their place of origin were always found to have concealed a material fact, since the misrepresentation hindered an investigation of their background.8
11
The misrepresentation section was not the only provision of the 1952 legislation that was widely thought to be unnecessarily harsh and restrictive, and in 1957 Congress passed legislation alleviating in many respects the stricter provisions of the earlier legislation. The purpose of the 1957 Act is perfectly clear from its terms, as well as from the relevant House and Senate Committee Reports.9 The most important provisions of the Act provide for special nonquota status for the adopted children or illegitimate children of immigrant parents, and for orphans who have been or are to be adopted by United States citizens. Other important provisions allow the Attorney General to waive certain grounds for exclusion or deportation, including affliction with tuberculosis or conviction of a crime involving moral turpitude, on behalf of aliens who are near relatives of United States citizens or of aliens lawfully admitted for permanent residence. The intent of the Act is plainly to grant exceptions to the rigorous provisions of the 1952 Act for the purpose of keeping family units together. Congress felt that, in many circumstances, it was more important to unite families and preserve family ties than it was to enforce strictly the quota limitations or even the many restrictive sections that are designed to keep undesirable or harmful aliens out of the country.10
12
In this context it is not surprising that Congress also granted relief to aliens facing exclusion or deportation because they has gained entry through misrepresentation. Section 7 of the 1957 Act provided that:
13
'The provisions of section 241 of the Immigration and Nationality Act relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as (1) aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation, or (2) aliens who were not of the nationality specified in their visas, shall not apply to an alien otherwise admissible at the time of entry who (A) is the spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence; or (B) was admitted to the United States between December 22, 1945, and November 1, 1954, both dates inclusive, and misrepresented his nationality, place of birth, identity, or residence in applying for a visa: Provided, That such alien described in clause (B) shall establish to the satisfaction of the Attorney General that the misrepresentation was predicated upon the alien's fear of persecution because of race, religion, or political opinion if repatriated to his former home or residence, and was not committed for the purpose of evading the quota restrictions of the immigration laws or an investigation of the alien at the place of his former home, or residence, or elsewhere. After the effective date of this Act, any alien who is the spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence and who is excludable because (1) he seeks, has sought to procure, or has procured, a visa or other documentation, or entry into the United States, by fraud or misrepresentation, or (2) he admits the commission of perjury in connection therewith, shall hereafter be granted a visa and admitted to the United States for permanent residence, if otherwise admissible, if the Attorney General in his discretion has consented to the alien's applying or reapplying for a visa and for admission to the United States.'
14
This section waived deportation under certain circumstances for two classes of aliens who had entered by fraud or misrepresentation. First, an alien who was 'the spouse, parent, or a child of a United States citizen * * *' was saved from deportation for his fraud if he was 'otherwise admissible at the time of entry.' Second, an alien who entered during the postwar period and misrepresented his nationality, place of birth, identity, or residence was saved from deportation if he was 'otherwise admissible at the time of entry' and if he could
15
'establish to the satisfaction of the Attorney General that the misrepresentation was predicated upon the alien's fear of persecution because of race, religion, or political opinion if repatriated to his former home or residence, and was not committed for the purpose of evading the quota restrictions of the immigration laws or an investigation of the alien at the place of his former home, or residence, or elsewhere.'
16
This language would be meaningless if an alien who committed fraud for the purpose of evading quota restrictions would be deportable as not 'otherwise admissible at the time of entry.' Congress must have felt that aliens who evaded quota restrictions by fraud would be 'otherwise admissible at the time of entry' or it would not have found it necessary to provide further that, in the case of an alien not possessing a close familial relationship to a United States citizen or lawful permanent resident, the fraud must not be for the purpose of evading quota restrictions.
17
This conclusion is reinforced by the fact that Congress further specified that the aliens who were not close relatives of United States citizens must establish that their fraud was not committed for the purpose of evading an investigation. Fraud for the purpose of evading an investigation, if forgiven by the statute, would clearly leave the alien 'otherwise admissible' if there were no other disqualifying factor. Elementary principles of statutory construction lead to the conclusion that Congress meant to specify two specific types of fraud that would leave an alien 'otherwise admissible' but that would nonetheless bar relief to those aliens who could not claim close relationship with a United States citizen or alien lawfully admitted for permanent residence.
18
The present § 241(f) is essentially a re-enactment of § 7 of the 1957 Act. The legislative history leaves no doubt that no substantive change in the section was intended.11 The provision dealing with aliens who had entered the United States between 1945 and 1954, and had misrepresented their nationality for fear of persecution or repatriation, was omitted because it had accomplished its purpose; the rest of the section was retained intact.12 It could hardly be argued that Congress intended to change the construction of the statute by this codification.
19
The intent of § 7 of the 1957 Act not to require that aliens who are close relatives of United States citizens have complied with quota restrictions to escape deportation for their fraud is clear from its language, and there is nothing in the legislative history to suggest that Congress had in mind a contrary result. The only specific reference to the part of § 7 that deals with close relatives of United States citizens or residents is in the House Committee Report, and it says only that most of the persons eligible for relief would be
20
'Mexican nationals, who, during the time when border-control operations suffered from regrettable laxity, were able to enter the United States, establish a family in this country, and were subsequently found to reside in the United States illegally.' H.R.Rep.No.1199, 85th Cong., 1st Sess., p. 11, U.S.Code Cong., & Admin. News 1957, p. 2024.
21
Without doubt most of the aliens who had obtained entry into the United States by illegal means were Mexicans, because it has always been far easier to avoid border restrictions when entering from Mexico than when entering from countries that do not have a common land border with the United States. There is nothing in the Committee Report to indicate that relief under the section was intended to be restricted to Mexicans, however. Neither does it follow that, because Mexicans are not subject to quota restrictions, therefore nationals of countries that do have a quota must be within the quota to obtain relief.
22
The construction of the statute that we adopt in these cases is further reinforced when the section is regarded in the context of the 1957 Act. The fundamental purpose of this legislation was to unite families. Refugees from Communist lands were also benefited, but the Act principally granted relief to persons who would be temporarily or permanently separated from their nearest relatives if the strict requirements of the Immigration and Nationality Act, including the national quotas, were not relaxed for them. It was wholly consistent with this purpose of this legislation was to unite immigrants who gained admission by misrepresentation, perhaps many years ago, should not be deported because their countries' quotas were oversubscribed when they entered if the effect of deportation would be to separate families composed in part of American citizens or lawful permanent residents.
23
Even if there were some doubt as to the correct construction of the statute, the doubt should be resolved in favor of the alien. As this Court has held, even where a punitive section is being construed:
24
'We resolve the doubts in favor of that construction because deportation is a drastic measure and at times the equivalent of banishment or exile, Delgadillo v. Carmishael, 332 U.S. 388, 68 S.Ct. 10, 92 L.Ed. 17. It is the forfeiture for misconduct of a residence in this country. Such a forfeiture is a penalty To construe this statutory provision less generously to the alien might find support in logic. But since the stakes are considerable for the individual, we will not assume that Congress meant to trench on his freedome beyond that which is required by the narrowest of several possible meanings of the words used.' Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L.Ed. 433.
25
See also Barber v. Gonzales, 347 U.S. 637, 642—643, 74 S.Ct. 822, 825—826, 98 L.Ed. 1009. The 1957 Act was not a punitive statute, and § 7 of that Act, now codified as § 241(f), in particular was designed to accomplish a humanitarian result. We conclude that to give meaning to the statute in the light of its humanitarian purpose of preventing the breaking up of families composed in part at least of American citizens, the conflict between the circuits must be resolved in favor of the aliens, and that the Errico decision must be affirmed and the Scott decision reversed.
26
It is so ordered.
27
Case No. 54 affirmed.
28
Case No. 91 reversed.
29
Mr. Justice STEWART, with whom Mr. Justice HARLAN and Mr. Justice WHITE join, dissenting.
30
The facts in one of these cases (No. 91) vividly illustrate the effect of the Court's interpretation of § 241(f) of the Immigration and Nationality Act. The petitioner, a resident of Jamaica, paid for a sham marriage with an American citizen. A ceremony was held, but the petitioner and her 'husband' parted immediately and have not seen each other since. However, the pretended marriage served its purpose; the petitioner was admitted into this country as a nonquota immigrant upon her false representation that she was the wife of a United States citizen. After this fraudulent entry she managed to become the actual parent of a United States citizen by conceiving and bearing an illegitimate child here.
31
The Court holds that this unsavory series of events gives the petitioner an unqualified right under § 241(f) to remain in this country ahead of all the honest people waiting in Jamaica and elsewhere to gain lawful entry.1 I can find no support in the statute for such an odd and inequitable result.
Section 241(f) provides as follows:
32
'The provisions of this section relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not apply to an alien otherwise admissible at the time of entry who is the spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence.'
33
It seems clear to me, for two separate and independently sufficient reasons, that this statute does not operate to bar the deportation of the aliens in the cases now before us. In the first place, § 241(f) has application only to the deportation provisions which are based upon fraudulent entry, and the aliens in these two cases were not ordered to be deported under those provisions. Secondly, even if it were generally applicable, § 241(f) does not cover the aliens involved in these two cases, because neither of them was 'otherwise admissible' at the time of entry.
I.
34
Section 241(f) by its terms neutralizes only those 'provisions * * * relating to the deportation of aliens within the United States on the ground that they * * * sought to procure * * * entry into the United States by fraud or misrepresentation * * *.' Although the aliens in these two cases could have been deported under those 'provisions,' the deportation proceedings in both cases were in fact brought on grounds unrelated to their procurement of fraudulent visas. Both aliens were ordered to be deported, not because of their fraud, but because they were not properly within their countries' quotas.
35
The plain terms of § 241(f), therefore, do not even potentially apply to these aliens.2 To hold that § 241(f) is relevant to these cases is tantamount to holding that it is applicable to bar deportation based on any ground at all so long as the alien lied about that ground at the time of his unlawful entry.3 I think nothing could be further from the statutory language or the congressional purpose.
II.
36
But even if § 241(f) were generally applicable, these aliens could not claim its benefits because they were not within their respective national immigration quotas and therefore were not 'otherwise admissible' at the time they entered the United States. That is the clear import of the statutory qualification, if its words are to be taken at their face value. That, too, has been the uniform and consistent administrative construction of the statute. See Matter of D'O—, 8 I. & N. Dec. 215 (1958); Matter of Slade, 10 I. & N. Dec. 128 (1962).
37
To except quota requirements of admissibility from the statutory qualification of 'otherwise admissible' would undercut the elaborate quota system which was for years at the heart of the immigration laws. Yet the legislative history of the predecessor of § 241(f), § 7 of the 1957 Act, makes clear that the limited relief given by the statute was to have no effect at all on the quota system.4
38
Moreover, the consistent use of the same qualifying phrase, 'otherwise admissible' in other sections of the Immigration and Nationality Act makes clear that, as a term of art, it includes quota admissibility. The term typically follows a definition of grounds for admissibility or for exceptions to deportation, to insure that all the other relevant requirements of the Act are imposed upon the alien.5
39
Thus the plain meaning of the 'otherwise admissible' qualification, as well as legislative policy and legislative history, all indicate that the term serves the same basic function in § 241(f) as in other sections of the Act. Fraud is removed as a ground for deportation of those with the requisite family ties, and 'otherwise admissible' insures the integrity of the remainder of the statutory scheme.6
40
The Court justifies its disregard of the plain meaning and consistent administrative construction of § 241(f) by resort to the spirit of humanitarianism which is said to have moved Congress to enact the statute. No doubt Congress in 1957 was concerned with giving relief to some aliens who had entered this country by illegal means and established families here. But the people who were to benefit from this genuine human concern were those from countries like Mexico, which had no quota restrictions, and those who had misrepresented their national origins in order to avoid repatriation to Iron Curtain countries. There is nothing to indicate that Congress enacted this legislation to allow wholesale evasion of the Immigration and Nationality Act or as a general reward for fraud.
41
I respectfully dissent.
1
75 Stat. 655 (1961), 8 U.S.C. § 1251(f).
2
Section 211(a)(4) of the Immigration and Nationality Act, 66 Stat. 181 (1952), later amended, 79 Stat. 917 (1965), 8 U.S.C. § 1181(a) (1964 ed., Supp. I). Aliens who were excludable at the time of entry under the law then existing are deportable under § 241(a)(1), 66 Stat. 204 (1952), as amended, 8 U.S.C. § 1251(a)(1).
3
Section 211(a)(3), 66 Stat. 181 (1952), later amended, 79 Stat. 917 (1965), 8 U.S.C. § 1181(a) (1964 ed., Supp. I).
4
66 Stat. 183 (1952), as amended, 8 U.S.C. § 1182(a)(19).
5
See Matter of S—-, 7 I. & N.Dec. 715 (1958); Matter of Y -, 8 I. & N.Dec. 143 (1959).
6
Pub.L. 85—316, 71 Stat. 639 (1957).
7
See H.R.Rep. No. 1365, 82d Cong., 2d Sess., p. 128 (1952), U.S.Code Cong. & Admin.News 1952, p. 1653.
8
See Matter of B—- and P—-, 2 I. & N.Dec. 638 (1947); H.R.Rep. No. 1199, 85th Cong., 1st Sess., p. 10 (1957).
9
'The legislative history of the Immigration and Nationality Act clearly indicates that the Congress intended to provide for a liberal treatment of children and was concerned with the problem of keeping families of United States citizens and immigrants united.' H.R.Rep. No. 1199, 85th Cong., 1st Sess., p. 7 (1957), U.S.Code Cong. & Admin. News 1957, p. 2020. See also S.Rep. No. 1057, 85th Cong., 1st Sess. (1957).
10
It is in this context that the legislative history cited in the dissent should be understood. The remarks of Senator Eastland and Congressman Celler quoted in footnote 4 of the dissent in context do not refer to § 7 of the Act but to the provisions of the bill providing for the adoption of alien orphans. Furthermore, Senator Eastland and Congressman Celler did not mean that no exceptions to the quota requirements were intended to be created, because the basic purpose of the bill was to relax the quota system for adopted children and for certain other classes of aliens deemed deserving of relief. They were reassuring their colleagues that no fundamental changes in the quota system were contemplated.
11
H.R.Rep. No. 1086, 87th Cong., 1st Sess., p. 37 (1961), U.S.Code Cong. & Admin.News 1961, p. 2950. See also 107 Cong.Rec. 19653—19654 (1961) (remarks of Senator Eastland).
12
H.R.Rep. No. 1086, 87th Cong., 1st Sess., p. 37 (1961).
1
When 'Mrs. Scott' made her fraudulent entry in 1958, Jamaica had an annual quota of 100 immigrants and a waiting list of 21,759 hopeful applicants. The corresponding figures for Italy in 1959, the year of Mr. Errico's entry, were 5,666 and 162,612.
2
The Court states that the Government 'concedes' and that 'administrative authorities have consistently held that § 241(f) waives any deportation charge that results directly from the misrepresentation.' Ante, at p. 217. But this concession and administrative practice fall far short of covering these cases. For here the grounds for deportation did not '(result) directly from the misrepresentation.' They antedated and were the reason for the misrepresentation. The 'administrative authorities' cited by the Court turned upon this distinction. In Matter of Y—-, 8 I. & N.Dec. 143 (1959), for example, the Board of Immigration Appeals broadened § 241(f) enough to cover fraud-related administrative procedural defects in the alien's entry. It is this construction of § 241(f) which the Government concedes, not the Court's construction which broadens the statute to excuse all disqualifications for entry.
3
Thus, a Communist who had lied to the immigration authorities about his party membership at the time of entry could invoke § 241(f) and remain in this country, while one who had told the truth, but was admitted by virtue of an administrative error, could be deported. See § 212(a)(28), Immigration and Nationality Act.
4
Senator Eastland, Chairman of the Committee which sponsored the 1957 amendments to the Immigration Act, stated, 'the bill does not modify the national origins quota provisions.' 103 Cong.Rec. 15487 (Aug. 21, 1957). See also 103 Cong.Rec. 16300 (Aug. 28, 1957) (remarks of Congressman Celler), '(The bill) makes no changes—no changes whatsoever, in the controversial issue of the national origins quota system.'
Pub.L. 89—236, 79 Stat. 911, made substantial changes in the quota system. But that statute, passed in 1965, hardly indicates a congressional intent in 1957 or in 1961 (when the present statute was revised) to abandon quota requirements.
5
See, e.g., §§ 211(a) and (b): The War Brides Act, 59 Stat. 659.
6
Under § 7 of the 1957 Act certain aliens had to establish both that they were 'otherwise admissible' and that they had not lied to evade quota restrictions. The Court reasons from this that quota restrictions are not embodied in the 'otherwise admissible' qualification. But this reasoning is inconsistent with the Court's conclusion concerning the general applicability of § 241(f), discussed in Part I of this dissent.
Section 7 of the earlier Act provided as follows:
'The provisions of section 241 of the Immigration and Nationality Act relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as (1) aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation, or (2) aliens who were not of the nationality specified in their visas, shall not apply to an alien otherwise admissible at the time of entry who * * *.' (Emphasis supplied.)
If the present meaning of 'otherwise admissible' is to be determined by the 1957 Act, so then must other parts of the statute be similarly determined. Section 241(f) begins with words almost identical to those quoted above. But the second ground of applicability—to 'aliens who were not of the nationality specified in ther visas'—is omitted. Thus, lies about nationality were not forgiven by the first part of the 1957 Act and are not, by the Court's reasoning, excused by § 241(f), the successor statute. And since there is nothing to distinguish lies about nationality that avoid quota restrictions from other lies with the same effect, the reasoning that leads to the Court's conclusion that the aliens were 'otherwise admissible' leads also to the conclusion that § 241(f) is not applicable at all in these cases.
| 12
|
385 U.S. 276
87 S.Ct. 483
17 L.Ed.2d 362
Elizabeth Rosalia WOODBY, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE. Joseph SHERMAN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE.
Nos. 40 and 80.
Argued Nov. 16 and 17, 1966.
Decided Dec. 12, 1966.
Jacob A. Myers, Dayton, Ohio, for petitioner, Woodby.
Joseph Forer, Washington, D.C., for petitioner, Sherman.
Francis X. Beytagh, Jr., Cleveland, Ohio, pro hac vice, by special leave of Court, Charles Gordon, Washington, D.C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The question presented by these cases is what burden of proof the Government must sustain in deportation proceedings. We have concluded that it is incumbent upon the Government in such proceedings to establish the facts supporting deportability by clear, unequivocal, and convincing evidence.
2
In Sherman (No. 80), the petitioner is a resident alien who entered this country from Poland in 1920 as a 14-year-old boy. In 1963 the Immigration and Naturalization Service instituted proceedings to deport him upon the ground that he had re-entered the United States in 1938, following a trip abroad, without inspection as an alien.1 After a hearing before a special inquiry officer, the petitioner was ordered to be deported, and the Board of Immigration Appeals dismissed his appeal.2
3
The Government's evidence showed that the petitioner had obtained a passport in 1937 under the name of Samuel Levine, representing himself as a United States citizen. Someone using this passport sailed to France in June 1937, proceeded to Spain, returned to the United States in December 1938, aboard the S.S. Ausonia, and was admitted without being examined as an alien. To establish that it was the petitioner who had traveled under this passport, the Government introduced the testimony of Edward Morrow, an American citizen who had fought in the Spanish Civil War. Morrow was at first unable to remember the name Samuel Levine or identify the petitioner, but eventually stated that he thought he had known the petitioner as 'Sam Levine,' had seen him while fighting for the Loyalists in Spain during 1937 and 1938, and had returned with him to the United States aboard the S.S. Ausonia in December 1938. Morrow conceded that his recollection of events occurring 27 years earlier was imperfect, and admitted that his identification of the petitioner might be mistaken.
4
It is not clear what standard of proof the special inquiry officer and the Board of Immigration Appeals on de novo review applied in determining that it was the petitioner who had traveled to Spain and re-entered the United States under the Samuel Levine passport. At the outset of his opinion, the special inquiry officer stated that the Government must establish deportability 'by reasonable, substantial and probative evidence,' without discussing what the burden of proof was. Later he concluded that the Government had established its contentions 'with a solidarity far greater than required,' but did not further elucidate what was 'required.' The Board of Immigration Appeals stated that it was 'established beyond any reasonable doubt' that the petitioner had obtained the Samuel Levine passport, and added that this established a 'presumption' that the petitioner had used it to travel abroad. The Board further stated that it was a 'most unlikely hypothesis' that someone other than the petitioner had obtained and used the passport, and asserted that 'the Service has borne its burden of establishing' that the petitioner was deportable, without indicating what it considered the weight of that burden to be.
5
Upon petition for review, the Court of Appeals for the Second Circuit originally set aside the deportation order, upon the ground that the Government has the burden of proving the facts supporting deportability beyond a reasonable doubt.3 The court reversed itself, however, upon a rehearing en banc, holding that the Government need only prove its case with 'reasonable, substantial, and probative evidence.'4 We granted certiorari, 384 U.S. 904, 86 S.Ct. 1345, 16 L.Ed.2d 357.
6
In Woodby (No. 40), the petitioner is a resident alien who was born in Hungary and entered the United States from Germany in 1956 as the wife of an American soldier. Deportation proceedings were instituted against her on the ground that she had engaged in prostitution after entry.5 A special inquiry officer and the Board of Immigration Appeals found that she was deportable upon the ground charged.
7
At the administrative hearing the petitioner admitted that she had engaged in prostitution for a brief period in 1957, some months after her husband had deserted her, but claimed that her conduct was the product of circumstances amounting to duress. Without reaching the validity of the duress defense, the special inquiry officer and the Board of Immigration Appeals concluded that the petitioner had continued to engage in prostitution after the alleged duress had terminated. The hearing officer and the Board did not discuss what burden of proof the Government was required to bear in establishing deportability, nor did either of them indicate the degree of certainty with which their factual conclusions were reached. The special inquiry officer merely asserted that the evidence demonstrated that the petitioner was deportable. The Board stated that the evidence made it 'apparent' that the petitioner had engaged in prostitution after the alleged duress had ended, and announced that 'it is concluded that the evidence establishes deportability * * *.'
8
In denying a petition for review, the Court of Appeals for the Sixth Circuit did not explicitly deal with the issue of what burden of persuasion was imposed upon the Government at the administrative level, finding only that 'the Board's underlying order is 'supported by reasonable, substantial, and probative evidence on the record considered as a whole * * *." We granted certiorari, 384 U.S. 904, 86 S.Ct. 1345, 16 L.Ed.2d 357.
9
In the prevailing opinion in the Sherman case, the Court of Appeals for the Second Circuit stated that '(i)f the slate were clean,' it 'might well agree that the standard of persuasion for deportation should be similar to that in denaturalization, where the Supreme Court has insisted that the evidence must be 'clear, unequivocal, and convincing' and that the Government needs 'more than a bare preponderance of the evidence' to prevail. * * * But here,' the court thought, 'Congress has spoken * * *.' 350 F.2d at 900. This view was based upon two provisions of the Immigration and Nationality Act which use the language 'reasonable, substantial, and probative evidence' in connection with deportation orders. The provisions in question are § 106(a)(4) of the Act which states that a deportation order, 'if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive,'6 and § 242(b)(4) of the Act which provides inter alia that 'no decision of deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence.'7
10
It seems clear, however, that these two statutory provisions are addressed not to the degree of proof required at the administrative level in deportation proceedings, but to quite a different subject—the scope of judicial review. The elementary but crucial difference between burden of proof and scope of review is, of course, a commonplace in the law.8 The difference is most graphically illustrated in a criminal case. There the prosecution is generally required to prove the elements of the offense beyond a reasonable doubt.9 But if the correct burden of proof was imposed at the trial, judicial review is generally limited to ascertaining whether the evidence relied upon by the trier of fact was of sufficient quality and substantiality to support the rationality of the judgment. In other words, an appellate court in a criminal case ordinarily does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt, but whether the judgment is supported by substantial evidence.10
11
That § 106(a)(4) relates exclusively to judicial review is made abundantly clear by its language, its context, and its legislative history. Section 106 was added to the Act in 1961 in order 'to create a single, separate, statutory form of judicial review of administrative orders for the deportation and exclusion of aliens from the United States.'11 The section is entitled 'Judicial Review of Orders of Deportation and Exclusion,' and by its terms provides 'the sole and exclusive procedure for' the 'judicial review of all final orders of deportation.' Subsection 106(a)(4) is a specific directive to the courts in which petitions for review are filed.12
12
It is hardly less clear that the other provision upon which the Court of Appeals for the Second Circuit relied, § 242(b)(4) of the Act, is also addressed to reviewing courts, and, insofar as it represents a yardstick for the administrative factfinder, goes, not to the burden of proof, but rather to the quality and nature of the evidence upon which a deportation order must be based.13 The provision declares that 'reasonable, substantial, and probative evidence' shall be the measure of whether a deportability decision is 'valid'—a word that implies scrutiny by a reviewing tribunal of a decision already reached by the trier of the facts. The location of this provision in a section containing provisions dealing with procedures before the special inquiry officer has little significance when it is remembered that the original 1952 Act did not itself contain a framework for judicial review—although such review was, of course, available by habeas corpus or otherwise. See Marcello v. Bonds, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107. And whatever ambiguity might be thought to lie in the location of this section is resolved by its legislative history. The Senate Report explained § 242(b)(4) as follows: 'The requirement that the decision of the special inquiry officer shall be based on reasonable, substantial and probative evidence means that, where the decision rests upon evidence of such a nature that it cannot be said that a reasonable person might not have reached the conclusion which was reached, the case may not be reversed because the judgment of the appellate body differs from that of the administrative body.'14
13
We conclude, therefore, that Congress has not addressed itself to the question of what degree of proof is required in deportation proceedings. It is the kind of question which has traditionally been left to the judiciary to resolve,15 and its resolution is necessary in the interest of the evenhanded administration of the Immigration and Nationality Act.
14
The petitioners urge that the appropriate burden of proof in deportation proceedings should be that which the law imposes in criminal cases—the duty of proving the essential facts beyond a reasonable doubt. The Government, on the other hand, points out that a deportation proceeding is not a criminal case, and that the appropriate burden of proof should consequently be the one generally imposed in civil cases and administrative proceedings—the duty of prevailing by a mere preponderance of the evidence.
15
To be sure, a deportation proceeding is not a criminal prosecution. Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586. But it does not syllogistically follow that a person may be banished from this country upon no higher degree of proof than applies in a negligence case. This Court has not closed its eyes to the drastic deprivations that may follow when a resident of this country is compelled by our Government to forsake all the bonds formed here and go to a foreign land where he often has no contemporary identification. In words apposite to the question before us, we have spoken of 'the solidity of proof that is required for a judgment entailing the consequences of deportation, particularly in the case of an old man who has lived in this country for forty years * * *.' Rowoldt v. Perfetto, 355 U.S. 115, 120, 78 S.Ct. 180, 183, 2 L.Ed.2d 140.
16
In denaturalization cases the Court has required the Government to establish its allegations by clear, unequivocal, and convincing evidence.16 The same burden has been imposed in expatriation cases.17 That standard of proof is no stranger to the civil law.18
17
No less a burden of proof is appropriate in deportation proceedings. The immediate hardship of deportation is often greater than that inflicted by denaturalization, which does not, immediately at least, result in expulsion from our shores. And many resident aliens have lived in this country longer and established stronger family, social, and economic ties here than some who have become naturalized citizens.
18
We hold that no deportation order may be entered unless it is found by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true.19 Accordingly, in each of the cases before us, the judgment of the Court of Appeals is set aside, and the case is remanded with directions to remand to the Immigration and Naturalization Service for such further proceedings as, consistent with this opinion, may be deemed appropriate.20
19
It is so ordered.
20
Judgment set aside and remanded.
21
Mr. Justice CLARK, whom Mr. Justice HARLAN joins, dissenting.
22
The Court, by placing a higher standard of proof on the Government, in deportation cases, has usurped the legislative function of the Congress and has in one fell swoop repealed the long-established 'reasonable, substantial, and probative' burden of proof placed on the Government by specific Act of the Congress, and substituted its own 'clear, unequivocal, and convincing' standard. This is but another case in a long line in which the Court has tightened the noose around the Government's neck in immigration cases.
I.
23
I agree that § 106(a)(4), the 1961 amendment to the Immigration and Nationality Act of 1952, relates to judicial review of administrative orders of the Immigration Service but, with due deference, I cannot see how 'It is hardly less clear' that § 242(b)(4) of the Act, as the Court says, likewise applies exclusively to judicial review. Indeed, on the contrary, the latter section was specifically enacted as the only standard of proof to be applied in deportation cases.
24
Before § 242(b) was enacted the immigration laws contained no detailed provision concerning the burden of proof in deportation cases. Kessler v. Strecker, 307 U.S. 22, 34, 59 S.Ct. 694, 700, 83 L.Ed. 1082 (1939). In Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950), this Court extended the provisions of the Administrative Procedure Act to deportation proceedings. Congress immediately exempted such proceedings from the Administrative Procedure Act and in 1952 established in § 242(b) an exclusive procedural system for deportation proceedings.
25
In essence that section, § 242(b), provides for notice and a hearing before a 'special inquiry officer' of the Immigration Service; sets the standard of proof in such cases as 'reasonable, substantial, and probative evidence'; and authorizes the Attorney General to issue regulations. In issuing those regulations the Attorney General established a Board of Immigration Appeals. The Board's relationship to the orders of the special inquiry officer is similar to the relationship an agency has to the orders of a hearing examiner under the Administrative Procedure Act. The section also specifically provides that the regulations shall include requirements that 'no decision of deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence' and that this standard shall be the 'sole and exclusive procedure for determining the deportability of an alien under this section.' This was the first time in our history that Congress had expressly placed a specific standard of proof on the Government in deportation cases. And the language Congress used made it clear that this standard related to the 'burden of proof' as well as 'the quality and nature of the evidence.' The requirement of 'reasonable' evidence cannot be meant merely to exclude 'unreasonable' or 'irrational' evidence but carries the obvious connotation from history and tradition of sufficiency to sustain a conclusion by a preponderance of the evidence.1 Congress in overruling Wong Yang Sung, supra, carved deportation proceedings from the judicial overtones of the Administrative Procedure Act and established a built-in administrative procedure.
26
This is made crystal clear by the reports of both Houses of Congress on § 242(b). The Committee Reports, S.Rep. No. 1137, 82d Cong., 2d Sess., 30; H.R.Rep. No. 1365, 82d Cong., 2d Sess., 57, U.S.Code Cong. & Admin.News 1952, p. 1653, state in simple understandable language that:
27
'The requirement that the decision of the special inquiry officer shall be based on reasonable, substantial, and probative evidence means that, where the decision rests upon evidence of such a nature that it cannot be said that a reasonable person might not have reached the conclusion which was reached, the case may not be reversed because the judgment of the appellate body differs from that below.'
28
The courts consistently applied the standard of 'reasonable, substantial and probative' evidence after the adoption of § 242(b). See, e.g., Rowoldt v. Perfetto, 355 U.S. 115, 120—121, 78 S.Ct. 180, 183—184, 2 L.Ed.2d 140 (1957).
29
The Court, however, in Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868 (1955), once again extended the Administrative Procedure Act's provision respecting judicial review to deportation cases. The reaction of the Congress was identical to that of 1952 when it overruled Wong Yang Sung, supra. It enacted, in 1961, § 106(a)(4) of the Act. Just as § 242(b) was the first statutory standard of proof, § 106(a)(4) was the first express statutory standard of judicial review. It provided:
30
'* * * the petition (for review) shall be determined solely upon the administrative record upon which the deportation order is based and the Attorney General's findings of fact, if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive.'
31
Why Congress passed § 106(a)(4) if judicial review, as the Court holds, was already exclusively covered by § 242(b) is beyond my comprehension—unless it was engaged in shadow boxing. I cannot believe that it was.
32
The Court says that both the special inquiry officer and the Board of Immigration Appeals failed to state what the burden of proof was in these cases. Fault is found in the officer's use of the phrase 'solidarity' of proof 'far greater than required.' This language was apparently patterned after this Court's opinion in Rowoldt, supra, where the phrase 'solidity of proof' was used. The findings of both the officers and the Board in these cases show specifically that the burden of proof followed in each case was that required of the Government in § 242(b) and the Regulations of the Attorney General, i.e., by 'reasonable, substantial, and probative evidence.' This standard has been administratively followed by the Immigration Service in a long and unbroken line of cases. See Matter of Peralta, 10 I. & N. Dec. 43, 46.
33
The Court now extends the standard of Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943), in denaturalization cases, i.e., 'clear, unequivocal, and convincing evidence,' to deportation cases. But denaturalization and expatriation are much more oppressive cases than deportation. They deprive one of citizenship which the United States had previously conferred. The Schneiderman rule only follows the principle that vested rights can be canceled only upon clear, unequivocal, and convincing proof; it gives stability and finality to a most precious right-citizenship. An alien, however, does not enjoy citizenship but only a conditional privilege extended to him by the Congress as a matter of grace. Both petitioners, the record shows, knew this, yet they remained in this country for years—46 in the case of Sherman and 10 in that of Woodby. Still, neither made any effort to obtain citizenship.
II.
34
By treating these two cases as raising only a single issue the Court ignores some aspects of Woodby which greatly trouble me. Woodby sought review of the final deportation order against her more than six months after entry of that order. Section 106(a)(1) of the Act specifically limits the jurisdiction of the Court of Appeals to consideration of petitions for review 'filed not later than six months from the date of the final deportation order.' The legislative history of that provision makes it clear that Congress intended it to be strictly enforced in order to alleviate the spectacle of aliens subject to deportation orders and able to remain in this country for long periods of time by employing dilatory legal tactics. See H.R.Rep. No. 565, 87th Cong., 1st Sess. Since there is no time limit on petitions for rehearing or reconsideration, 8 CFR §§ 242.22, 103.5, permitting review of a final order of deportation merely because a timely petition for review of an administrative refusal to reopen the proceedings has been filed would negate the congressional purpose behind the insistence on timely filing in § 106(a)(1). Lopez v. United States Department of Justice, Immigration & Naturalization Service, 3 Cir., 356 F.2d 986, cert. denied, 385 U.S. 839, 87 S.Ct. 88, 17 L.Ed.2d 73.2
35
The Court holds only that 'no deportation order may be entered unless it is found by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true.' (Italics added.) The ground alleged for deportation of Woodby was that she had 'engaged in prostitution after entry.' It has never been contended that this ground was not properly established. In fact it is conceded that Woodby engaged in prostitution. The only factual dispute involved in her case centers on the question whether her activities arose from duress and ended when the conditions compelling her to stray ceased to exist. It seems clear to me that since Woodby is raising duress as an affirmative defense she bears the burden of establishing all elements of that defense. See In the Matter of M—, 7 I. & N. Dec. 251. And the record clearly shows that both the administrative authorities and the Court of Appeals rejected Woodby's 'bizarre' story. Under familiar principles those findings are binding on this Court, Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, and nothing in what the Court holds today affects that conclusion.
36
I regret that my powers of persuasion with my Brethren are not sufficient to to prevent this encroachment upon the function of the Congress which will place an undue and unintended burden upon the Government in deportation cases. I dissent.
1
Section 241(a)(2) of the Immigration and Nationality Act of 1952, 66 Stat. 204, 8 U.S.C. § 1251(a)(2), provides for deportation of any alien who 'entered the United States without inspection or at any time or place other than as designated by the Attorney General * * *.' Prior to 1952, the Government was required to bring deportation proceedings within five years of an alleged illegal entry, 39 Stat. 889 (1917), as amended 8 U.S.C. § 155(a) (1946 ed.). Thus, under the prior law, the petitioner would not have been subject to deportation proceedings commenced after 1943. However, this time limit was retroactively eliminated by the 1952 Act, § 241(d), 66 Stat. 208, 8 U.S.C. § 1251(d). See Developments in the Law, Immigration and Nationality, 66 Harv.L.Rev. 643, 683—684.
2
In conformity with its usual practice, the Board made its own independent determination of the factual issues after de novo examination of the record. See Gordon & Rosenfield, Immigration Law and Procedure 46—47 (1959).
3
350 F.2d 894.
4
350 F.2d, at 901. The court adopted the reasoning of the opinion which Judge Friendly had filed as a dissent to the original decision. Judges Waterman and Smith, who had formed the original majority, dissented.
5
Section 241(a)(12) of the Immigration and Nationality Act of 1952, 66 Stat. 207, 8 U.S.C. § 1251(a)(12), provides for the deportation of any alien who 'by reason of any conduct, behavior or activity at any time after entry became a member of any of the classes specified in paragraph (12) of section 212(a) * * *.' Among the classes specified in § 212(a)(12) of the Act, 66 Stat. 182, 8 U.S.C. § 1182(a)(12), are 'Aliens who are prostitutes or who have engaged in prostitution * * *.'
6
75 Stat. 651 (1961), 8 U.S.C. § 1105a(a)(4).
7
66 Stat. 210 (1952), 8 U.S.C. § 1252(b)(4).
8
See Jaffe, Administrative Law: Burden of Proof and Scope of Review, 79 Harv.L.Rev. 914 (1966); Comment, 41 N.Y.U.L.Rev. 622 (1966); Standard of Proof in Deportation Proceedings, 18 Stan.L.Rev. 1237 (1966).
9
See McCormick, Evidence 681—685 (1954); 9 Wigmore, Evidence § 2497 (3d ed. 1940).
10
E.g., Rutkin v. United States, 343 U.S. 130, 135, 72 S.Ct. 571, 574, 96 L.Ed. 833. For discussion of variations of and alternatives to the usual rule, see Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149, 1157—1163 (1960).
11
H.R.Rep. No. 1086, 87th Cong., 1st Sess., 22, U.S.Code Cong. & Admin.News 1961, p. 2950.
12
'Judicial Review of Orders of Deportation and Exclusion
'Sec. 106. (a) The procedure prescribed by, and all the provisions of the Act of December 29, 1950, as amended (64 Stat. 1129; 68 Stat. 961; 5 U.S.C. 1031 et seq.), shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation * * * except that—
'(4) * * * the petition shall be determined solely upon the administrative record upon which the deportation order is based and the Attorney General's findings of fact, if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive * * *.' 75 Stat. 651 (1961), 8 U.S.C. § 1105a(a).
13
This has been recognized by the Board of Immigration Appeals itself:
'Finally, it is important to bear in mind the distinction between the burden of proof and the quality of the evidence which is required to establish that burden successfully. It is to be noted that subsection (b)(4) of section 242 of the act does not speak of the burden of proof but of the quality of the evidence which the Service must produce before deportability can validly be found * * *.' Matter of V—-, 7 I. & N.Dec. 460, 463.
14
S.Rep. No. 1137, 82d Cong., 2d Sess., 30. The House Report contains substantially identical language. H.R.Rep. No. 1365, 82d Cong., 2d Sess., 57, U.S.Code Cong. & Admin.News 1952, p. 1653.
15
See McBaine, Burden of Proof: Degrees of Belief, 32 Calif.L.Rev. 242 (1944). See also 9 Wigmore, Evidence §§ 2488 2493, 2497—2498 (3d ed. 1940).
16
Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796; Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525; Nowak v. United States, 356 U.S. 660, 78 S.Ct. 955, 2 L.Ed.2d 1048; Chaunt v. United States, 364 U.S. 350, 81 S.Ct. 147, 5 L.Ed.2d 120.
17
Gonzales v. Landon, 350 U.S. 920, 76 S.Ct. 210, 100 L.Ed. 806; Nishikawa v. Dulles, 356 U.S. 129, 78 S.Ct. 612, 2 L.Ed.2d 659. But see § 349(c) of the Immigration and Nationality Act, 75 Stat. 656 (1961), 8 U.S.C. § 1481(c).
18
This standard, or an even higher one, has traditionally been imposed in cases involving allegations of civil fraud, and in a variety of other kinds of civil cases involving such issues as adultery, illegitimacy of a child born in wedlock, lost wills, oral contracts to make bequests, and the like. See 9 Wigmore, Evidence § 2498 (3d ed. 1940).
19
This standard of proof applies to all deportation cases, regardless of the length of time the alien has resided in this country. It is perhaps worth pointing out, however, that, as a practical matter, the more recent the alleged events supporting deportability, the more readily the Government will generally be able to prove its allegations by clear, unequivocal and convincing evidence.
20
Section 106(a)(1) of the Act, 75 Stat. 651 (1961), 8 U.S.C. § 1105a(a) (1), provides that a petition for judicial review must be filed with the Court of Appeals not later than six months after a final order of deportation. In No. 40, Woodby, the petitioner's appeal to the Board of Immigration Appeals was dismissed on March 8, 1963, and a motion for reconsideration was denied on May 27, 1963. Petition for review by the Court of Appeals was filed more than six months after the Board upheld the deportation order, but within six months after the denial of the motion to reconsider. The Court of Appeals did not pass on the question whether, in such circumstances, its power of review was limited to consideration whether the denial of the motion for reconsideration was an abuse of discretion, or whether it might also assess in full the validity of the deportation order. Following the decision of the Court of Appeals in this case, the Court of Appeals for the Ninth Circuit held, in similar circumstances, that it had authority to undertake full review of the deportation order, as well as the denial of the motion to reconsider. Bregman v. Immigration and Naturalization Service, 351 F.2d 401. In light of the Bregman decision, the Government before this Court expressly abandoned its contention that in this case the courts are limited to reviewing the denial of the motion to reconsider. See the Government's brief in No. 40, Woodby, p. 8, n. 3.
1
Thus the judicial review provision of the Administrative Procedure Act, 5 U.S.C. § 1009(e)(5), limits the scope of review to a determination of support by 'substantial evidence,' and 5 U.S.C. § 1006 limits the agencies to acting on 'reliable, probative, and substantial evidence.' This pattern has traditionally been held satisfied when the agency decides on the preponderance of the evidence.
2
In Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90, this Court held only that denial of a petition to reopen or reconsider is reviewable. The Court did not specify the scope of review to be applied. The Court may be depending upon a concession by the Government on this point, but it is clear that jurisdiction cannot be waived. King Bridge Co. v. Otoe County, 120 U.S. 225, 7 S.Ct. 552, 30 L.Ed. 623; Good Shot v. United States, 179 U.S. 87, 21 S.Ct. 33, 45 L.Ed. 101.
| 12
|
385 U.S. 363
87 S.Ct. 468
17 L.Ed.2d 420
Lee E. A. PARKER, Petitioner,v.Clarence T. GLADDEN, Warden of the Oregon State Penitentiary.
No. 81.
Argued Nov. 9, 1966.
Decided Dec. 12, 1966.
John H. Schafer, Washington, D.C., for petitioner.
David H. Blunt, The Dalles, Or., for respondent.
PER CURIAM.
1
Petitioner, after his conviction for second degree murder, State v. Parker, 235 Or. 366, 384 P.2d 986, filed a petition for post-conviction relief, Or.Rev.Stat. § 138.550. At a hearing on the petition the trial court found that a court bailiff assigned to shepherd the sequestered jury, which sat for eight days, stated to one of the jurors in the presence of others, while the jury was out walking on a public sidewalk: 'Oh that wicked fellow (petitioner), he is guilty';1 and on another occasion said to another juror under similar circumstances, 'If there is anything wrong (in finding petitioner guilty) the Supreme Court will correct it.'2 Both statements were overheard by at least one regular juror or an alternate. The trial court found 'that the unauthorized communication was prejudicial and that such conduct materially affected the rights of the (petitioner).' The Supreme Court of Oregon reversed, finding that 'the bailiff's misconduct did not deprive (petitioner) of a constitutionally correct trial.' Or., 407 P.2d 246. We granted certiorari, 384 U.S. 904, 86 S.Ct. 1345, 16 L.Ed.2d 357. The federal question decided by Oregon's highest court is, of course, subject to final determination in this Court and we have concluded that the judgment must be reversed.
2
We believe that the statements of the bailiff to the jurors are controlled by the command of the Sixth Amendment, made applicable to the States through the Due Process Clause of the Fourteenth Amendment. It guarantees that 'the accused shall enjoy the right to a * * * trial, by an impartial jury * * * (and) be confronted with the witnesses against him * * *.' As we said in Turner v. State of Louisiana, 379 U.S. 466, 472—473, 85 S.Ct. 546, 550, 13 L.Ed.2d 424 (1965), 'the 'evidence developed' against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel.' Here there is dispute neither as to what the bailiff, an officer of the State, said nor that when he said it he was not subjected to confrontation, cross-examination or other safeguards guaranteed to the petitioner. Rather, his expressions were 'private talk,' tending to reach the jury by 'outside influence.' Patterson v. People of State of Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1907). We have followed the 'undeviating rule,' Sheppard v. Maxwell, 384 U.S. 333, 351, 86 S.Ct. 1507, 1516, 16 L.Ed.2d 600 (1966), that the rights of confrontation and cross-examination are among the fundamental requirements of a constitutionally fair trial. Kirby v. United States, 174 U.S. 47, 55, 56, 19 S.Ct. 574, 577, 43 L.Ed. 890 (1899); In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948); Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).
3
The State suggests that no prejudice was shown and that no harm could have resulted because 10 members of the jury testified that they had not heard the bailiff's statements and that Oregon law permits a verdict of guilty by 10 affirmative votes. This overlooks the fact that the official character of the bailiff—as an officer of the court as well as the State—beyond question carries great weight with a jury which he had been shepherding for eight days and nights. Moreover, the jurors deliberated for 26 hours, indicating a difference among them as to the guilt of petitioner. Finally, one3 of the jurors testified that she was prejudiced by the statements, which supports the trial court's finding 'that the unauthorized communication was prejudicial and that such conduct materially affected the rights of the defendant.' This finding was not upset by Oregon's highest court. Aside from this, we believe that the unauthorized conduct of the bailiff 'involves such a probability that prejudice will result that it is deemed inherently lacking in due process,' Estes v. State of Texas, 381 U.S. 532, 542—543, 85 S.Ct. 1628, 1633, 14 L.Ed.2d 543 (1965). As we said in Turner v. State of Louisiana, supra, 'it would be blinking reality not to recognize the extreme prejudice inherent' in such statements that reached at least three members of the jury and one alternate member. 379 U.S., at 473, 85 S.Ct., at 550. The State says that 10 of the jurors testified that they had not heard the statements of the bailiff. This, however, ignores the testimony that one of the statements was made to an unidentifed juror, which, including Mrs. Inwards and Mrs. Drake, makes three. In any event, petitioner was entitled to be tried by 12, not 9 or even 10, impartial and unprejudiced jurors. See State v. Murray, 164 La. 883, 888, 114 So. 721, 723.
4
Reversed.
5
Mr. Justice HARLAN, dissenting.
6
By not setting forth the background of this proceeding the Court has put seriously out of focus the constitutional issue involved in this case.
7
Parker was convicted of second degree murder on May 19, 1961, and sentenced to life imprisonment. On September 7, 1961, he addressed a letter to several jurors protesting his innocence, condemning his attorneys for incompetence, intimating that witnesses were coerced into lying, and chiding the jurors for being duped into finding him guilty. After affirmance of his conviction by the Supreme Court of Oregon on September 15, 1963 some two years after the jury verdict—Parker again set out to take his case to the jury. He furnished his wife with a tape recording in which he propounded a series of questions designed to uncover possible improprieties in the jury's deliberations. The jury had deliberated a long time and Parker had been told that their discussion was heated. Although unaware of any irregularities he commenced 'shooting in the dark.' (Tr., p. 16.) Mrs. Parker then acquired a jury list and discovered those jurors who had been most sympathetic to her husband.1 She invited two regular jurors and an alternate to her home to listen to the recording and discuss the case. An attorney was then retained to prepare affidavits detailing the allegations before us and to institute this postconviction proceeding. The statements before this Court were found to have been made by this apparently Elizabethan-tongued bailiff, but, contrary to this Court's assertion, the trial court found that these statements were only prejudicial in nature and not that they had a prejudicial effect.2 The Oregon Supreme Court did not find the trial proceedings fundamentally unfair.
8
This Court finds the bailiff's remarks to be in violation of the Sixth Amendment's confrontation requirement. Although I believe that 'a right of confrontation is 'implicit in the concept of ordered liberty," Pointer v. State of Texas, 380 U.S. 400, 408, 85 S.Ct. 1065, 1070, 13 L.Ed.2d 923 (concurring opinion of Harlan, J.), I cannot accede to the view that the Sixth Amendment is directly applicable to the States through the Fourteenth. As to the confrontation problem here asserted, I know of no case in which this Court has held that jurors must have been absolutely insulated from all expressions of opinion on the merits of the case or the judicial process at the risk of declaration of a new trial. Irvin v. Dowd, 366 U.S 717, 81 S.Ct. 1639, 6 L.Ed.2d 751. Even where this Court has acted in its supervisory capacity it has refused to hold that jury contact with outside information is always a cause for overthrowing a verdict, wisely preferring to allow 'each case * * * (to) turn on its special facts.' Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 1173, 3 L.Ed.2d 1250. The Court notes that these remarks were made by a state officer, but does not explain why the bailiff's official capacity would in this instance make him any more a 'witness' than any other person able to communicate with the jury. Thus, though I believe unintentionally, the Court's opinion leaves open the possibility of automatically requiring a mistrial on constitutional grounds whenever any juror is exposed to any potentially prejudicial expression of opinion.
9
Considering this case, as I would, under the doctrine of fundamental fairness implicit in the Due Process Clause of the Fourteenth Amendment, I think a different result follows. Much reliance has been placed upon Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424. But in Turner we faced a situation in which the trial court allowed two deputy sheriffs who were key witnesses to be placed in 'continuous and intimate association' with the jury, and it would have been 'blinking reality not to recognize the extreme prejudice inherent in this' situation. 379 U.S., at 473, 85 S.Ct., at 550. There too we faced ' a procedure employed by the State' involving 'such a probability that prejudice will result' that we deemed it 'inherently lacking in due process.' Estes v. State of Texas, 381 U.S. 532, 542—543, 85 S.Ct. 1628, 1633, 14 L.Ed.2d 543. Here no procedure adopted by the State is to be faulted and it seems clear to me that the rule of Stroble v. State of California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872, and Irvin v. Dowd, supra, should apply and a substantial showing of prejudice in fact must be made before a due process violation can be found.
10
On this basis the occurrences before us seem inconsequential to me in light of the eight-day trial and twenty-six-hour jury deliberation. And my feeling is confirmed by the extremely trivial evidence of prejudice amounting to no more than an assertion by one obviously highly emotional and 'guilt-ridden' juror that she might have been influenced without realizing it.3 '(I)t is an impossible standard to require that tribunal (the jury) to be a laboratory, completely sterilized and freed from any external factors.' Rideau v. State of Louisiana, 373 U.S. 723, 733, 83 S.Ct. 1417, 1423, 10 L.Ed.2d 663 (Clark, J., dissenting).
11
The potentialities of today's decision may go far beyond what, I am sure, the Court intends. Certainly the Court does not wish to encourage convicted felons to 'intimidate, beset and harass,' Stein v. People of State of New York, 346 U.S. 156, 178, 73 S.Ct. 1077, 1089, 97 L.Ed. 1522, a discharged jury in an effort to establish possible grounds for a new trial. Our courts have always been alert to protect the sanctity of the jury process. McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300; see Castaldi v. United States, D.C., 251 F.Supp. 681. But in allowing Parker to overturn his conviction on the basis of what are no more than inconsequential incidents in an otherwise constitutionally flawless proceeding, the Court encourages others to follow his example in pursuing the jury and may be thought by some to commit federal courts in habeas corpus proceedings to interrogate the jury upon the mere allegation that a prejudicial remark has reached the ears of one of its members. Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654. To any such result I cannot subscribe.
12
I think the Oregon Supreme Court correctly assessed the constitutional issue before us, and I would affirm its judgment.
1
The statement was made to alternate juror Mrs. Gattman and was overheard by juror Mrs. Inwards.
2
The statement was made to an unidentified juror and overheard by juror Mrs. Drake.
3
Mrs. Inwards when recalled to the stand testified in response to a question by the court that 'all in all it must have influenced me. I didn't realize it at the time.'
1
The record shows that Mrs. Parker first called juror number one, Mrs. Inwards, and upon finding her sympathetic obtained from her the names of those who had held out longest. Mrs. Inwards also informed Mrs. Parker that an alternate juror, Mrs. Gattman, was sympathetic to Parker's cause.
2
The trial court purported to follow the State Supreme Court's decision in State v. Kristich, 226 Or. 240, 359 P.2d 1106, which held that where a bailiff had communicated with a jury on a point of law prejudice would be presumed. Thus the leged in plaintiff's petition had been called to the Court's attention, the Court, on its own motion, would have granted the defendant a new trial,' and held that Parker deserved a new trial because the communication was of a prejudicial nature. The Oregon Supreme Court reversed because it held that the trial court erroneously applied the new-trial standard to a post-conviction proceeding where only error of constitutional magnitude would serve to overthrow the verdict. The Supreme Court made no specific finding on prejudice but in distinguishing Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424, noted a 'difference in degree of the out-of-courtroom influence * * * so great as to lead us to the conclusion that the bailiff's misconduct did not deprive defendant of a constitutionally correct trial.' 407 P.2d 246, 249.
3
Mrs. Inwards, who on recall testified that she must have been unconsciously influenced, denied any influence when first examined. In her further testimony she admitted that she was extremely upset by the verdict and would do anything short of committing perjury to overturn it. She stated, however, that although she had gone to the trial judge to discuss the verdict she had never mentioned the bailiff's remarks to him. In specifying that the bailiff's remarks 'must' have influenced her she limited herself to declaring that they did so in connection with the pressure put on her by other jurors during the deliberations thus stating that 'all in all' she 'must' have been influenced.
| 01
|
385 U.S. 252
87 S.Ct. 492
17 L.Ed.2d 343
The FIRST NATIONAL BANK OF LOGAN, UTAH, Petitioner,v.WALKER BANK AND TRUST COMPANY. FIRST SECURITY BANK OF UTAH, N.A., Petitioner, v. COMMERCIAL SECURITY BANK. James J. SAXON, Comptroller of the Currency, Petitioner, v. COMMERCIAL SECURITY BANK.
Nos. 51, 73, 88.
Argued Nov. 7 and 8, 1966.
Decided Dec. 12, 1966.
Rehearing Denied Jan. 16, 1967.
See 385 U.S. 1032, 87 S.Ct. 738.
Richard A. Posner, Washington, D.C., and Theodore S. Perry, Logan, Utah, for petitioners.
John Wilson, Washington, D.C., for First Security Bank.
James F. Bell, Washington, D.C., and Joseph S. Jones, Salt Lake City, Utah, for respondents.
Mr. Justice CLARK delivered the opinion of the Court.
1
These cases involve the construction of those portions of the National Banking Act, 44 Stat. 1228, 12 U.S.C. § 36(c), which authorize a national banking association, with the approval of the Comptroller of the Currency, to establish and operate new branches within the limits of the municipality in which the bank is located, if such operation is 'at the time authorized to State banks by the law of the State in question.'1 Two national banks with their main banking houses in Logan and Ogden, Utah, respectively, seek to open branches in those municipalities. The Utah statute prohibits Utah banks, with certain exceptions not here relevant, from establishing branches except by taking over an existing bank which has been in operation for not less than five years. Utah Code Ann., Tit. 7, c. 3, § 6 (1965 Supp.)2 In No. 51, First National Bank of Logan v. Walker Bank & Trust Co., the petitioner seeks to establish a new branch in Logan, where its principal banking house is located, without taking over an established bank. The District Court approved its doing so but the Court of Appeals reversed. 352 F.2d 90 (C.A.10th Cir.), sub nom. Walker Bank & Trust Co. v. Saxon. In No. 73, First Security Bank of Utah, N.A. v. Commercial Security Bank, and No. 88, Saxon v. Commercial Security Bank, First Security seeks to establish a new branch in Ogden, in which its home office is situated, without taking over an established bank. The District Court held that state law must be complied with, 236 F.Supp. 457, and the Court of Appeals affirmed in a judgment, without opinion, citing Walker Bank & Trust Co., supra. In view of a conflict between these holdings and the decision in First National Bank of Smithfield v. Saxon, 352 F.2d 267 (C.A.4th Cir.), we granted certiorari, and consolidated the three cases for argument. 384 U.S. 925, 86 S.Ct. 1441, 16 L.Ed.2d 530. We affirm the judgments.
2
In No. 51, the petitioner maintains its principal banking house in Logan, Utah, which is a second class city under Utah law (Utah Code Ann., Tit. 10, c. 1, § 1 (1953, as amended)), and is therefore subject to § 7—3—6 of the Utah Code, supra. It applied to the Comptroller of the Currency for a certificate to establish an 'inside' branch office in Logan. At the time of the application there were no other banks with their main banking offices in Logan. However, there were two branches of banks whose home offices were situated outside of Logan, one of which belonged to respondent, Walker Bank & Trust Co., whose home office was located in Salt Lake City. After a hearing, the Comptroller ordered the certificate issued. The respondent subsequently filed this suit seeking a declaratory judgment and injunctive relief against the Comptroller and First National claiming the action of the Comptroller to be void since the proposed branch was not taking over an established bank in Logan, as required by Utah law. The District Court dismissed the complaint. It found 'express authority' under Utah law for state banks to establish branch offices in Logan, relying on the general authority of the statute and holding that the subsequent conditions, such as the acquisition of another bank, did not 'change the 'express authority' into a lack of authority on the part of State banks or a lack of a statutory expression of such authority, and (did) not add to the Federal statute a requirement that compliance be made by National banks with all State conditions.' 234 F.Supp. 74, 78, n. 8. The Court of Appeals reversed, holding that the Congress in enacting § 36(c)(1) acceded to state law and created 'a competitive equality between state and national banks.' Finding that the trial court's interpretation was to the contrary, it declared 'the proper approach is for the Comptroller to look at all the State law on branch banking not just part of it.' 352 F.2d 90, 94.
3
In Nos. 73 and 88, the First Security Bank of Utah, a national bank, applied for a certificate from the Comptroller to establish a branch bank in Ogden, where it maintained its principal banking house. Its proposal was to open a new branch and not to take over an existing bank in Ogden. Under Utah law, Ogden is also a second class city and the 'take over' provision of § 7—3 6, supra, was therefore applicable. Two other banks have their main offices in Ogden. After the Comptroller approved the issuance of the certificate, respondent filed suit in the District Court of the United States for the District of Columbia asking for injunctive and other relief. The District Court imposed all of the restrictions of § 7—3—6 of Utah law on the establishment of national banks and the Court of Appeals for the District of Columbia Circuit affirmed, by a judgment without opinion, but cited the opinion of the 10th Circuit, Walker Bank & Trust Co., supra.
4
2. The National Banking Act: Its Background.
5
There has long been opposition to the exercise of federal power in the banking field. Indeed, President Jefferson was opposed to the creation of the first Bank of the United States and President Jackson vetoed the Act of Congress extending the charter of the second Bank of the United States. However, the authority of Congress to act in the field was resolved in the landmark case of M'Culloch v. State of Maryland, 4 Wheat. 316, 4 L.Ed. 579 (1819). There Chief Justice Marshall, while admitting that it does not appear that a bank was in the contemplation of the Framers of the Constitution, held that a national bank could be chartered under the implied powers of the Congress as an instrumentality of the Federal Government to implement its fiscal powers. The paramount power of the Congress over national banks has. therefore, been settled for almost a century and a half.
6
Nevertheless, no national banking act was adopted until 1863 (12 Stat. 665), and it was not until 1927 that Congress dealt with the problem before us in these cases. This inaction was possibly due to the fact that at the turn of the century, there were very few branch banks in the country. At that time only five national and 82 state banks were operating branches with a total of 119 branches. By the end of 1923, however, there were 91 national and 580 state banks with a total of 2,054 branches.3 The Comptroller of the Currency, in his Annual Report of 1923, recommended congressional action on branch banking. The report stated that if state banks continue to engage 'in unlimited branch banking it will mean the eventual destruction of the national banking system * * *.' H.R.Doc.No.90, 68th Cong., 1st Sess., 6 (1924). Soon thereafter legislation was introduced to equalize national and state branch banking. The House Report on the measure, H.R.Rep.No.83, 69th Cong., 1st Sess., 7 (1926), stated among other things:
7
'The bill recognizes the absolute necessity of taking legislative action with reference to the branch banking controversy. The present situation is intolerable to the national banking system. The bill proposes the only practicable solution by stopping the further extension of state-wide branch banking in the federal reserve system by State member banks and by permitting national banks to have branches in those cities where State banks are allowed to have them under State laws.'
8
This bill failed to pass in the Senate and, although Congress continued to study the problem, it was not until 1927 that the McFadden Act was adopted. The bill originated in the House and, in substance, proposed that both national and state banks be permitted to establish 'inside' branches within the municipality of their main banking facilities in those States that permitted branch banking at the time of the enactment of the bill. H.R.Rep.No.83, 69th Cong., 1st Sess., 4—5 (1926). The intent of the Congress to leave the question of the desirability of branch banking up to the States is indicated by the fact that the Senate struck from the House bill the time limitation, thus permitting a subsequent change in state law to have a corresponding effect on the authority of national banks to engage in branching. The Senate Report concluded that the Act would permit 'national banks to have branches in those cities where State banks are allowed to have them under State laws.' S.Rep.No.473, 69th Cong., 1st Sess., 14 (1926). In the subsequent Conference Committee, the Senate position was adopted. State banks which were members of the Federal Reserve System were also limited to 'inside' branches. A grandfather clause permitted retention of branches operated at the date of enactment. H.R.Rep.No.1481, 69th Cong., 1st Sess., 6 (1926). The Act was finally passed on February 25, 1927, and became known as the McFadden Act of 1927, taking its name from its sponsor, Representative McFadden. At the time of its enactment he characterized it in this language:
9
'As a result of the passage of this act, the national bank act has been so amended that national banks are able to meet the needs of modern industry and commerce and competitive equality has been established among all member banks of the Federal reserve system.' (Emphasis added.) 68 Cong.Rec. 5815 (1927).
10
During the economic depression there was much agitation that bank failures were due to small undercapitalized rural banks and that these banks should be supplanted by branches of larger and stronger banks. The Comptroller of the Currency advocated that national banks be permitted to branch regardless of state law. Hearings before a Subcommittee of the Senate Committee on Banking and Currency pursuant to S.Res.No.71, 71st Cong., 3d Sess., 7—10 (1931). Senator Carter Glass held a similar belief and introduced a bill that would authorize national banks to organize branches irrespective of state law beyond and 'outside' the municipality of its principal banking house. His proposal was strenuously opposed and was eventually defeated. It was not until the Seventy-third Congress that the Bankruptcy Act of 1933 was adopted. Senator Glass, the ranking member of the Senate Committee on Banking and Currency and the dominant banking figure in the Congress, was sponsor of the Act. In reporting it to the Senate for passage, he said, the Act 'required that the establishment of branch banks by national banks in States which by law permit branch banking should be under the regulations required by State law of State banks.' 77 Cong.Rec. 3726 (1933). In a colloquy on the floor of the Senate with Senator Copeland as to the purpose of the Act (with reference to branch banking by national banks), Senator Glass said that it would be permissible 'in only those States the laws of which permit branch banking, and only to the extent that the State laws permit branch banking.' Moreover, to make it crystal clear, when Senator Copeland replied that 'it permits branch banking only in those States where the State laws permit branch banking by State banks,' Senator Glass was careful to repeat: 'Only in those States and to the extent that the State laws permit branch banking.' (Emphasis added.) 76 Cong.Rec. 2511 (1933). Remarks of other members of Congress also indicate that they shared the understanding of Senator Glass. For example, Senator Vandenberg stated that § 36(c)(1) provides 'that the branch-banking privilege so far as national banks are concerned shall follow the status established by State law in respect to the State privilege.' 76 Cong. Rec. 2262 (1933). Likewise, Senator Long who had joined a filibuster against an earlier version of the bill stated at final passage that '(w)e have only undertaken to secure equal treatment for State banks' and that the bill had substantially achieved that result. 77 Cong.Rec. 5862 (1933). In similar tone, Representative Bacon stated that branches of national banks may be established provided 'this is permitted by the laws of that State and subject to them.' (Emphasis added.) 77 Cong.Rec. 3949 (1933). And Representative Luce, a member of the Conference Committee, reported to the House:
11
'In the controversy over the respective merits of what are known as 'unit banking' and 'branch banking systems,' a controversy that has been alive and sharp for years, branch banking has been steadily gaining in favor. It is not, however, here proposed to give the advocates of branch banking any advantage. We do not go an inch beyond saying that the two ideas shall compete on equal terms and only where the States make the competition possible by letting their own institutions have branches.' 77 Cong.Rec. 5896 (1933).
12
As finally passed, the Act permitted national banks to establish outside branches if such branches could be established by state banks under state law. It is well to note that the same Act also removed the restriction on outside branch banking by state member banks previously imposed by the McFadden Act.
13
3. The Policy of Competitive Equality.
14
It appears clear from this resume of the legislative history of § 36(c)(1) and (2) that Congress intended to place national and state banks on a basis of 'competitive equality' insofar as branch banking was concerned Both sponsors of the applicable banking Act, Representative McFadden and Senator Glass, so characterized the legislation. It is not for us to so construe the Acts as to frustrate this clear-cut purpose so forcefully expressed by both friend and foe of the legislation at the time of its adoption. To us it appears beyond question that the Congress was continuing its policy of equalization first adopted in the National Bank Act of 1864. See Lewis v.Fidelity & Deposit Co., 292 U.S. 559, 565—566, 54 S.Ct. 848, 850—851, 78 L.Ed. 1425 (1934); McClellan v. Chipman, 164 U.S. 347, 17 S.Ct. 85, 41 L.Ed. 461 (1896); Chase Securities Corp. v. Husband, 302 U.S. 660, 58 S.Ct. 476, 82 L.Ed. 510 (1938); Anderson Nat. Bank v. Luckett, 321 U.S. 233, 64 S.Ct. 599, 88 L.Ed. 692 (1944).
15
The Comptroller argues that Utah's statute 'expressly authorizes' state banks to have branches in their home municipalities. He maintains that the restriction, in the subsequent paragraph of the statute limiting branching solely to the taking over of an existing bank, is not applicable to national banks. It is a strange argument that permits one to pick and choose what portion of the law binds him. Indeed, it would fly in the face of the legislative history not to hold that national branch banking is limited to those States the laws of which permit it, and even there 'only to the extent that the State laws permit branch banking.' Utah clearly permits it 'only to the extent' that the proposed branch takes over an existing bank.
16
The Comptroller also contends that the Act supersedes state law only as to 'whether' and 'where' branches may be located and not the 'method' by which this is effected. We believe that where a State allows branching only by taking over an existing bank, it expresses as much 'whether' and 'where' a branch may be located as does a prohibition or a limitation to the home office municipality. As to the restriction being a 'method,' we have concluded that since it is part and parcel of Utah's policy, it was absorbed by the provisions of §§ 36(c)(1) and (2), regardless of the tag placed upon it.
17
Affirmed.
1
The National Banking Act, 44 Stat. 1228, 12 U.S.C. § 36(c)(1) and (2) provides:
'(c) A national banking association may, with the approval of the Comptroller of the Currency, establish and operate new branches: (1) Within the limits of the city, town or village in which said association is situated, if such establishment and operation are at the time expressly authorized to State banks by the law of the State in question; and (2) at any point within the State in which said association is situated, if such establishment and operation are at the time authorized to State banks by the statute law of the State in question by language specifically granting such authority affirmatively and not merely by implication or recognition, and subject to the restrictions as to location imposed by the law of the State on State banks.'
2
Utah Code Ann., Tit. 7, c. 3, § 6 (1965 Supp.), provides:
'7—3—6. Business conducted at banking house—Branching of offices—Violation of section a misdemeanor.—The business of every bank shall be conducted only at its banking house and every bank shall receive deposits and pay checks only at its banking house except as hereinafter provided.
'Except in cities of the first class, or within unincorporated areas of a county in which a city of the first class is located, no branch bank shall be established in any city or town in which is located a bank or banks, state or national, regularly transacting a customary banking business, unless the bank seeking to establish such branch shall take over an existing bank. No unit bank organized and operating at a point where there are other operating banks, state or national, shall be permitted to be acquired by another bank for the purpose of establishing a branch until such bank shall have been in operation as such for a period of five years.'
1. The Facts.
3
Board of Governors of the Federal Reserve System, Banking Studies 15, 428 (1941).
| 910
|
385 U.S. 355
87 S.Ct. 464
17 L.Ed.2d 414
DEPARTMENT OF EMPLOYMENT et al., Appellants,v.UNITED STATES et al.
No. 78.
Argued Nov. 15, 1966.
Decided Dec. 12, 1966.
James D. McKevitt, Denver, Colo., for appellants.
Jack S. Levin, Washington, D.C., for appellees.
Mr. Justice FORTAS delivered the opinion of the Court.
1
Colorado is one of three States1 whose Employment Security Act imposes an unemployment compensation tax upon charitable institutions, the tax being measured by the amount of wages paid to the institution's employees. Colo.Rev.Stat.Ann. § 82—6—1. When the State's Department of Employment sought to enforce the tax upon wages paid Coloradobased employees of the American National Red Cross (hereinafter referred to as Red Cross), the Red Cross objected that as a 'federal instrumentality' it was immune from such taxation. See McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579 (1819). Tax payments aggregating more than $10,000 were made under protest, applications for refund accompanying each payment. The Department of Employment denied each such application. Thereupon the Red Cross, along with the United States as co-plaintiff, invoked the jurisdiction of a three-judge federal District Court to enjoin enforcement against it of the Colorado Employment Security Act on the ground that as applied to it, a federal instrumentality, the statute violated the Federal Constitution. See 28 U.S.C. § 2281.2 The Department of Employment responded that the Red Cross was not a federal instrumentality, that any immunity it might have had been waived by Congress in the 1960 amendments to the Federal Unemployment Tax Act (26 U.S.C. § 3301 et seq.), and that in any even the Red Cross had failed to exhaust available administrative and state judicial remedies. The three-judge federal District Court, American National Red Cross v. Department of Employment, 263 F.Supp. 581, ruled in favor of the Red Cross and the United States on each of these issues, ordered a refund of taxes already paid, and enjoined enforcement of the tax statute against the Red Cross. Pursuant to 28 U.S.C. § 1253,3 the Department of Employment and its executive director sought direct review here. In setting the case for argument, we postponed consideration of questions pertaining to our jurisdiction and that of the three-judge court. 384 U.S. 949, 86 S.Ct. 1568, 16 L.Ed.2d 546 (1966).
2
We are persuaded that there exist no jurisdictional barriers to our disposition of this appeal on the merits. Any challenge to the applicability of the three-judge court provision, 28 U.S.C. § 2281, is foreclosed by this Court's decision in Query v. United States, 316 U.S. 486, 62 S.Ct. 1122, 86 L.Ed. 1616 (1942), where the Court held that three judges were required to entertain a suit to enjoin a state tax statute sought to be enforced against an Army Post Exchange which asserted its immunity as a federal instrumentality,4 and we do not consider that our later decision in Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965), requires a different conclusion. Nor is there compelling force in the argument, advanced by appellants, that the Tax Injunction Act (28 U.S.C. § 1341)5 requires appellees first to exhaust their state remedies, which are alleged by appellants to be 'plain, speedy and efficient.' We need not decide whether omission to provide interest on a successful rfund application renders the state remedy here an inadequate one within the meaning of § 1341. For we conclude, in accord with an unbroken line of authority,6 and convincing evidence of legislative purpose,7 that § 1341 does not act as a restriction upon suits by the United States to protect itself and its instrumentalities from unconstitutional state exactions. With respect to appellants' contention that the State of Colorado has not consented to suit in a federal forum even where the plaintiff is the United States, see Principality Monaco v. State of Mississippi, 292 U.S. 313, 54 S.Ct. 745, 78 L.Ed. 1282 (1934), and Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).
3
On the merits, we hold that the Red Cross is an instrumentality of the United States for purposes of immunity from state taxation levied on its operations, and that this immunity has not been waived by congressional enactment. Although there is no simple test for ascertaining whether an institution is so closely ralated to governmental activity as to become a tax-immune instrumentality, the Red Cross is clearly such an instrumentality. See generally, Sturges, The Legal Status of the Red Cross, 56 Mich.L.Rev. 1 (1957). Congress chartered the present Red Cross in 1905, subjecting it to governmental supervision and to a regular financial audit by the Defense, then War, Department. 33 Stat. 599, as amended, 36 U.S.C. § 1 et seq. Its principal officer is appointed by the President, who also appoints seven (all government officers) of the remaining 49 Governors. 33 Stat. 601, as amended, 36 U.S.C. § 5. By statute and Executive Order there devolved upon the Red Cross the right and the obligation to meet this Nation's commitments under various Geneva Conventions,8 to perform a wide variety of functions indispensable to the workings of our Armed Forces around the globe,9 and to assist the Federal Government in providing disaster assistance to the States in time of need.10 Although its operations are financed primarily from voluntary private contributions, the Red Cross does receive substantial material assistance from the Federal Government.11 And time and time again, both the President and the Congress have recognized and acted in reliance upon the Red Cross' status virtually as an arm of the Government.12 In those respects in which the Red Cross differs from the usual government agency—e.g., in that its employees are not employees of the United States, and that government officials do not direct its everyday affairs—the Red Cross is like other institutions—e.g., national banks—whose status as tax-immune instrumentalities of the United States is beyond dispute.
4
Nor did Congress, in the course of amending the federal unemployment compensation tax statute in 1960, strip away any of this immunity. Certainly there was no intent to do so. Indeed, in debate on the floor of the House, Chairman Mills and Congressman Ikard of the Ways and Means Committee expressed their view, which was not controverted, that the Red Cross' immunity from state and federal unemployment compensation taxes would survive the amendments. 106 Cong.Rec. 13827 (1960). And the House Committee Report stated that no nongovernment-owned instrumentality which enjoyed immunity from the federal tax prior to 1960—the Red Cross had such an exemption—was to lose its state-tax immunity. H.R.Rep.No.1799, 86th Cong., 2d Sess., pp. 55—56, 128 (1960), U.S.Code Congressional and Administrative News, p. 3608. Finally, the present statutory scheme does not deprive the Red Cross of immunity. That the Red Cross enjoyed immunity prior to the 1960 amendments seems clear, and was at the time conceded by the State of Colorado.13 Under the pre-existing scheme, § 3305(b) of Title 26 exempted from state taxation any federal instrumentality exempt from the federal unemployment compensation tax imposed by § 3301. The Red Cross was so exempt as the result of §§ 3306(c)(6)(B) and 3306(c)(8), which referred to 'service performed in the employ of (a charitable organization).' As amended in 1960, § 3305(b) continues the statetax immunity for any 'instrumentality to which section 3306(c)(6) applies.' And the latter section as amended includes employment 'exempt from the tax imposed by section 3301 by virtue of any provision of law which specifically refers to such section * * * in granting such exemption.' 26 U.S.C. § 3306(c)(6)(B). Although § 3306(c)(8), which exempts from the federal tax 'service performed in the employ of a (charitable institution),' does not contain an explicit citation to § 3301, its sole function is to exempt certain employment from the reach of that section. We hold that federal instrumentalities like the Red Cross, exempted from the federal tax by virtue of § 3306(c)(8), are likewise exempt from state taxation under § 3306(c)(6)(B).
5
Accordingly, the judgment appealed from is affirmed.
6
Affirmed.
1
The other States are Alaska and Hawaii. See Alaska Stat. § 23.20.525(c) (7) (1962); Hawaii Rev.Laws § 93—7(i) (Supp.1963).
2
The statute provides that 'An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State * * * shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.'
3
Section 1253 authorizes direct appeal to this Court from an order granting an injunction in any proceeding 'required by any Act of Congress to be heard and determined by a district court of three judges.'
4
See also United States v. Georgia Pub.Serv. Comm'n, 371 U.S. 285, 287, 83 S.Ct. 397, 398, 9 L.Ed.2d 317 (1963); Paul v. United States, 371 U.S. 245, 249—250, 83 S.Ct. 426, 430, 9 L.Ed.2d 292 (1963). Compare Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1, 37—50 (1964), with Note, The Three-Judge District Court: Scope and procedure Under Section 2281, 77 Harv.L.Rev. 299, 312—313 (1963).
5
Section 1341 provides that 'The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.'
6
United States v. Arlington County, Commonwealth of Virginia, 326 F.2d 929, 931 (C.A.4th Cir. 1964); United States v. Bureau of Revenue of State of N.M., 291 F.2d 677, 679 (C.A.10th Cir. 1961); United States v. Woodworth, 170 F.2d 1019 (C.A.2d Cir. 1948); City of Springfield v. United States, 99 F.2d 860, 862 (C.A.1st Cir. 1938), cert. denied, 306 U.S. 650, 59 S.Ct. 592, 83 L.Ed. 1049 (1939); United States v. Livingston, 179 F.Supp. 9, 11 12 (D.C.E.D.S.C.1959), aff'd, 364 U.S. 281, 80 S.Ct. 1611, 4 L.Ed.2d 1719 (1960).
7
See S.Rep. No. 1035, 75th Cong., 1st Sess., pp. 2—3 (1937); H.R.Rep. No. 1503, 75th Cong., 1st Sess., p. 2—3 (1937); 81 Cong.Rec. 1416—1417 (1937).
8
E.g., Geneva Convention of August 22, 1864, for the Amelioration of the Wounded in Armies in the Field, 22 Stat. 940 (1882); Geneva Convention of July 27, 1929, For the Amelioration of the Condition of the Wounded and the Sick of Armies in the Field, 47 Stat. 2074 (1932); Geneva Convention of August 12, 1949, For the Multilateral Protection of War Victims, 6 U.S.T. & O.I.A. 3114, T.I.A.S. No. 3362.
9
See, e.g., 10 U.S.C. § 2602; 33 Stat. 600, as amended, 36 U.S.C. § 3.
10
See 33 Stat. 600, as amended, 36 U.S.C. § 3; 64 Stat. 1109, 42 U.S.C. §§ 1855—1855g.
11
See e.g., 46 Stat. 66, as amended, 36 U.S.C. § 13 (permanent headquarters building).
12
See, e.g., Proclamation of President Taft, August 22, 1911, 37 Stat. 1716; 64 Stat. 1109, 42 U.S.C. §§ 1855a(f), 1855b, 1855c; H.Cong.Res. 232, 70 Stat. B32 (1956); H.R.Rep. No. 1728, 82d Cong., 2d Sess., p. 2 (1952), U.S.Code Congressional and Administrative News, p. 1997.
13
Such was the opinion of Assistant Attorney General McKevitt, who so informed appellant Department of Employment. See letter of the Assistant Attorney General to appellee Red Cross, dated November 21, 1960, exhibit 2, in support of appellees' motion for summary judgment below.
| 89
|
385 U.S. 362
87 S.Ct. 532
17 L.Ed.2d 427
Herbert HEIDER, Administrator etc.v.MICHIGAN SUGAR CO.
No. 48.
Supreme Court of the United States
December 12, 1966
Rehearing Denied Jan. 23, 1967.
See 385 U.S. 1043, 87 S.Ct. 769.
Gregory M. Pillon (Thomas C. Mayer, on the briefs), for petitioner.
Harry M. Plotkin (Carl H. Smith, on the brief), for respondent.
On Writ of Certiorari to the Supreme Court of Michigan.
PER CURIAM.
1
The writ is dismissed as improvidently granted.
| 89
|
385 U.S. 206
87 S.Ct. 424
17 L.Ed.2d 312
Duke Lee LEWIS, Petitioner,v.UNITED STATES.
No. 36.
Argued Oct. 17, 1966.
Decided Dec. 12, 1966.
Rehearing Denied Feb. 20, 1967.
See 386 U.S. 939, 87 S.Ct. 951.
S. Myron Klarfeld, Boston, Mass., for petitioner.
Ralph Spritzer, Washington, D.C., for respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
The question for resolution here is whether the Fourth Amendment was violated when a federal narcotics agent, by misrepresenting his identity and stating his willingness to purchase narcotics, was invited into petitioner's home where an unlawful narcotics transaction was consummated and the narcotics were thereafter introduced at petitioner's criminal trial over his objection. We hold that under the facts of this case it was not. Those facts are not disputed and may be briefly stated as follows:
2
On December 3, 1964, Edward Cass, an undercover federal narcotics agent, telephoned petitioner's home to inquire about the possibility of purchasing marihuana. Cass, who previously had not met or dealt with petitioner, falsely identified himself as one 'Jimmy the Pollack (sic)' and stated that a mutual friend had told him petitioner might be able to supply marihuana. In response, petitioner said, 'Yes. I believe, Jimmy, I can take care of you,' and then directed Cass to his home where, it was indicated, a sale of marihuana would occur. Cass drove to petitioner's home, knocked on the door, identified himself as 'Jim,' and was admitted. After discussing the possibility of regular future dealings at a discounted price, petitioner led Cass to a package located on the front porch of his home. Cass gave petitioner $50, took the package, and left the premises. The package contained five bags of marihuana.1 On December 17, 1964, a similar transaction took place, beginning with a phone conversation in which Cass identified himself as 'Jimmy the Pollack' and ending with an invited visit by Cass to petitioner's home where a second sale of marihuana occurred. Once again, Cass paid petitioner $50, but this time he received in return a package containing six bags of marihuana.2
3
Petitioner was arrested on April 27, 1965, and charged by a two-count indictment with violations of the narcotics laws relating to transfers of marihuana. 26 U.S.C. § 4742(a). A pretrial motion to suppress as evidence the marihuana and the conversations between petitioner and the agent was denied, and they were introduced at the trial. The District Court, sitting without a jury, convicted petitioner on both counts and imposed concurrent five-year penitentiary sentences. The Court of Appeals for the First Circuit affirmed, 352 F.2d 799, and we granted certiorari, 382 U.S. 1024, 86 S.Ct. 646, 15 L.Ed.2d 538.
4
Petitioner does not argue that he was entrapped, as he could not on the facts of this case;3 nor does he contend that a search of his home was made or that anything other than the purchased narcotics was taken away. His only contentions are that, in the absence of a warrant, any official intrusion upon the privacy of a home constitutes a Fourth Amendment violation and that the fact the suspect invited the intrusion cannot be held a waiver when the invitation was induced by fraud and deception.
5
Both petitioner and the Government recognize the necessity for some undercover police activity and both concede that the particular circumstances of each case govern the admissibility of evidence obtained by stratagem or deception.4 Indeed, it has long been acknowledged by the decisions of this Court, see Grimm v. United States, 156 U.S. 604, 610, 15 S.Ct. 470, 472, 39 L.Ed. 550 (1895), and Andrews v. United States, 162 U.S. 420, 423, 16 S.Ct. 798, 799, 40 L.Ed. 1023 (1896),5 that, in the detection of many types of crime, the Government is entitled to use decoys and to conceal the identity of its agents. The various protections of the Bill of Rights, of course, provide checks upon such official deception for the protection of the individual. See, e.g., Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948).
6
Petitioner argues that the Government overstepped the constitutional bounds in this case and places principal reliance on Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921). But a short statement of that case will demonstrate how misplaced his reliance is. There, a business acquaintance of the petitioner, acting under orders of federal officers, obtained entry into the petitioner's office by falsely representing that he intended only to pay a social visit. In the petitioner's absence, however, the intruder secretly ransacked the office and seized certain private papers of an incriminating nature. This Court had no difficulty concluding that the Fourth Amendment had been violated by the secret and general ransacking, notwithstanding that the initial intrusion was occasioned by a fraudulently obtained invitation rather than by force or stealth.
7
In the instant case, on the other hand, the petitioner invited the undercover agent to his home for the specific purpose of executing a felonious sale of narcotics. Petitioner's only concern was whether the agent was a willing purchaser who could pay the agreed price. Indeed, in order to convince the agent that his patronage at petitioner's home was desired, petitioner told him that, if he became a regular customer there, he would in the future receive an extra bag of marihuana at no additional cost; and in fact petitioner did hand over an extra bag at a second sale which was consummated at the same place and in precisely the same manner. During neither of his visits to petitioner's home did the agent see, hear, or take anything that was not contemplated, and in fact intended, by petitioner as a necessary part of his illegal business. Were we to hold the deceptions of the agent in this case constitutionally prohibited, we would come near to a rule that the use of undercover agents in any manner is virtually unconstitutional per se. Such a rule would, for example, severely hamper the Government in ferreting out those organized criminal activities that are characterized by covert dealings with victims who either cannot or do not protest.6 A prime example is provided by the narcotics traffic.
8
The fact that the undercover agent entered petitioner's home does not compel a different conclusion. Without question, the home is accorded the full range of Fourth Amendment protections. See Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921); Harris v. United States, 331 U.S. 145, 151, n. 15, 67 S.Ct. 1098, 1102, 91 L.Ed. 1399 (1947). But when, as here, the home is converted into a commercial center to which outsiders are invited for purposes of transacting unlawful business, that business is entitled to no greater sanctity than if it were carried on in a store, a garage, a car, or on the street. A government agent, in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the very purposes contemplated by the occupant. Of course, this does not mean that, whenever entry is obtained by invitation and the locus is characterized as a place of business, an agent is authorized to conduct a general search for incriminating materials; a citation to the Gouled case, supra, is sufficient to dispose of that contention.
9
Finally, petitioner also relies on Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948); and Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). But those cases all dealt with the exclusion of evidence that had been forcibly seized against the suspects' desires and without the authorization conferred by search warrants. A reading of them will readily demonstrate that they are inapposite to the facts of this case; and, in this area, each case must be judged on its own particular facts. Nor is Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961) in point; for there, the conduct proscribed was that of eavesdroppers, unknown and unwanted intruders who furtively listened to conversations occurring in the privacy of a house. The instant case involves no such problem; it has been well summarized by the Government at the conclusion of its brief as follows:
10
'In short, this case involves the exercise of no governmental power to intrude upon protected premises; the visitor was invited and willingly admitted by the suspect. It concerns no design on the part of a government agent to observe or hear what was happening in the privacy of a home; the suspect chose the location where the transaction took place. It presents no question of the invasion of the privacy of a dwelling; the only statements repeated were those that were willingly made to the agent and the only things taken were the packets of marihuana voluntarily transferred to him. The pretense resulted in no breach of privacy; it merely encouraged the suspect to say things which he was willing and anxious to say to anyone who would be interested in purchasing marihuana.'
11
Further elaboration is not necessary. The judgment is affirmed.
12
Affirmed.
13
Mr. Justice DOUGLAS dissented.
14
Mr. Justice BRENNAN, with whom Mr. Justice FORTAS joins, concurring.
15
While I concur in the Court's judgment, I vote to affirm solely on the reasoning on which the Court ultimately relies, namely that petitioner's apartment was not an area protected by the Fourth Amendment as related to the transactions in the present case.
16
The Fourth Amendment protects against governmental intrusion upon 'the sanctity of a man's home and the privacies of life.' Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746. However, the occupant can break the seal of sanctity and waive his right to privacy in the premises. Plainly he does this to the extent that he opens his home to the transaction of business and invites anyone willing to enter to come in to trade with him. When his customer turns out to be a government agent, the seller cannot, then, complain that his privacy has been invaded so long as the agent does no more than buy his wares. Thus the corner grocery with the living quarters in the rear would not be protected with respect to the area set aside for the purchase of groceries, although the living quarters to which shoppers are not privy retain the constitutional immunity. Cf. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.
17
The petitioner in this case opened his apartment for the conduct of a business, the sale of narcotics; the agent, in the same manner as any private person, entered the premises for the very purpose contemplated by the occupant and took nothing away except what would be taken away by any willing purchaser. There was therefore no intrusion upon the 'sanctity' of petitioner's home or the 'privacies of life.'
1
In the illegal narcotics trade, an average 'bag' of marihuana contains approximately five grams of marihuana. The five bags transferred to the agent by petitioner, however, contained a quantity of marihuana measuring 31.16 grams.
2
The six bags transferred in this second transaction contained 40.34 grams of marihuana.
3
Compare Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), and Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). See generally Mikell, The Doctrine of Entrapment in the Federal Courts, 90 U.Pa.L.Rev. 245 (1942).
4
In oral argument before this Court, counsel for petitioner conceded that information obtained by the agent in the course of his general undercover investigation, together with the subject matter of the first telephone conversation between the agent and petitioner, provided probable cause for believing that a narcotics offense would be committed in petitioner's home and, therefore, would have supported the issuance of a search warrant. According to counsel, the agent's misrepresentations would not have vitiated a magistrate's determination of probable cause. Counsel further suggested that, if the agent had arrested petitioner at the latter's home and then had conducted a search incidental to the arrest, no constitutional problems would be presented.
5
Former Chief Justice Hughes commented as follows upon the use of official deception in combating criminal activity:
'Artifice and stratagem may be employed to catch those engaged in criminal enterprises. * * * The appropriate object of this permitted activity, frequently essential to the enforcement of the law, is to reveal the criminal design; to expose the illicit traffic, the prohibited publication, the fraudulent use of the mails, the illegal conspiracy, or other offenses, and thus to disclose the would-be violators of the law.' Sorrells v. United States, 287 U.S. 435, 441—442, 53 S.Ct. 210, 212, 77 L.Ed. 413 (1932).
6
'Particularly, in the enforcement of vice, liquor or narcotics laws, it is all but impossible to obtain evidence for prosecution save by the use of decoys. There are rarely complaining witnesses. The participants in the crime enjoy themselves. Misrepresentation by a police officer or agent concerning the identity of the purchaser of illegal narcotics is a practical necessity. * * * Therefore, the law must attempt to distinguish between those deceits and persuasions which are permissible and those which are not.' Model Penal Code § 2.10, comment, p. 16 (Tent. Draft No. 9, 1959).
See also Donnelly, Judicial Control of Informants, Spies, Stool Pigeons and Agent Provocateurs, 60 Yale L.J. 1091, 1094 (1951); Note, 73 Harv.L.Rev. 1333, 1338—1339 (1960).
| 01
|
385 U.S. 440
87 S.Ct. 569
17 L.Ed.2d 501
Richard H. M. SWANN et al., Appellants,v.Tom ADAMS, Secretary of State of Florida et al.
No. 136.
Argued Dec. 6, 1966.
Decided Jan. 9, 1967.
Rehearing Denied Jan. 9, 1967.
See 385 U.S. 997, 87 S.Ct. 699.
D. P. S. Paul, Miami, Fla., for appellants.
Earl Faircloth, Miami, Fla., for appellees.
Mr. Justice WHITE delivered the opinion of the Court.
1
This case presents still another development in the efforts of the State of Florida to apportion its legislature in accordance with the requirements of the Federal Constitution. There have been previous chapters in this story. The litigation began in 1962. On June 22, 1964, in Swann v. Adams, 378 U.S. 553, 84 S.Ct. 1904, 12 L.Ed.2d 1033, we reversed the judgment of the three-judge District Court upholding the then-current legislative apportionment in Florida and remanded the case for further proceedings, consistent with the Court's opinion in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, and its companion cases. The District Court then deferred further action until the conclusion of the legislative session which convened on April 6, 1965. The legislature proceeded to reapportion the State on June 29, 1965. The District Court forthwith held the new plan failed to meet the requirements of the Fourteenth Amendment but approved the plan on an interim basis, limiting it to the period ending 60 days after the adjournment of the 1967 session of the Florida Legislature. This Court, finding no warrant for perpetuating what all conceded was an unconstitutional apportionment for another three years, reversed the judgment and remanded the case to the District Court so that a valid reapportionment plan would be made effective for the 1966 elections. Swann v. Adams, 383 U.S. 210, 86 S.Ct. 767, 15 L.Ed.2d 707. The Florida Legislature again acted on the matter in March 1966 by adopting still another reapportionment plan which the appellants promptly attacked in the District Court.
2
The new plan provides for 48 senators and 117 representatives, and includes what in effect are multimember districts for each house. The senate districts range from 87,595 to 114,053 in population per senator, or from 15.09% overrepresented to 10.56% underrepresented. The ratio between the largest and the smallest district is thus 1.30 to 1. The deviation from the average population per senator is greater than 15% in one senatorial district, is greater than 14% in five more districts and is more than 10% in still six other districts. Approximately 25% of the State's population living in one quarter of the total number of senatorial districts is underrepresented or overrepresented by at least 10%. The minimum percentage of persons that could elect a majority of 25 senators is 48.38%.
3
In the house the population per representative ranges from 34,584 to 48,785 or from 18.28% overrepresented to 15.27% underrepresented. The ratio between the largest and the smallest representative district is 1.41 to 1. Two districts vary from the norm by more than 18% and another by more than 15%, these three districts having seven of the 117 representatives. Ten other districts with 22 representatives vary from the norm by more than 10%. There is thus a deviation of more than 10% in districts which elect 29 of the 117 representatives; 24.35% of the State's population lives in these districts. The minimum percentage of persons that could elect a majority of 59 representatives is 47.79%.
4
The District Court recognized that 'apportionment must be substantially on a population basis' but that '(m)athematical exactness or precision is not required.' It went on to hold '(s)uch departures as there are from the ideal are not sufficient in number or great enough in percentages to require an upsetting of the legislative plan. * * * (W)hat deviation there is does not discriminate to any great extent against any section of the state or against either rural or urban interests.' 258 F.Supp. 819, 826, 827. Accordingly, the plan was held constitutional.
5
The State would have us dismiss this case for lack of standing on the part of appellants to maintain this appeal because appellants are from Dade County, Florida, which appellants concede has received constitutional treatment under the legislative plan. Appellants, however, had before the District Court their own plan which would have accorded different treatment to Dade County in some respects as compared with the legislative plan, and the alternative plan was rejected by the District Court. Moreover, the District Court has apparently consistently denied intervention to other plaintiffs, seemingly treating the appellants as representing other citizens in the State. The challenge to standing cannot succeed.
6
We reverse for the failure of the State to present or the District Court to articulate acceptable reasons for the variations among the populations of the various legislative districts with respect to both the senate and house of representatives. Reynolds v. Sims, supra, recognized that mathematical exactness is not required in state apportionment plans. De minimis deviations are unavoidable, but variations of 30% among senate districts and 40% among house districts can hardly be deemed de minimis and none of our cases suggests that differences of this magnitude will be approved without a satisfactory explanation grounded on acceptable state policy. On the contrary, the Reynolds opinion limited the allowable deviations to those minor variations which 'are based on legitimate considerations incident to the effectuation of a rational state policy.' 377 U.S. 533, 579, 84 S.Ct. 1362, 1391. Thus that opinion went on to indicate that variations from a pure population standard might be justified by such state policy considerations as the integrity of political subdivisions, the maintenance of compactness and contiguity in legislative districts or the recognition of natural or historical boundary lines. Likewise, in Roman v. Sincock, 377 U.S. 695, 710, 84 S.Ct. 1449, 1458, 12 L.Ed.2d 620, the Court stated that the Constitution permits 'such minor deviations only as may occur in recognizing certain factors that are free from any taint of arbitrariness or discrimination.'
7
The State relies on Forty-fourth General Assembly of Colorado v. Lucas, 379 U.S. 693, 85 S.Ct. 715, 13 L.Ed.2d 699; Burnette v. Davis, 382 U.S. 42, 86 S.Ct. 181, 15 L.Ed.2d 35; and Harrison v. Schaefer, 383 U.S. 269, 86 S.Ct. 929, 15 L.Ed.2d 750, which were per curiam affirmances of lower court judgments in reapportionment cases. The State suggests that the plans approved in those cases involved variations in magnitude equal to or greater than those revealed by the Florida apportionment, and for that reason the judgment here should be affirmed. But in none of these cases was the issue of the validity of the differences in population between various legislative districts either raised or ruled upon in this Court. There was no occasion to explore whether or not there was ample justification for the challenged variations. And in Lucas v. Forty-fourth General Assembly of State of Colorado, 377 U.S. 713, 727, 734—735, 84 S.Ct. 1459, 1472—1473, 12 L.Ed.2d 632, the Court expressly reserved decision upon the validity of a variance ratio of 1.7 to 1. In any event, the fact that a 10% or 15% variation from the norm is approved in one State has little bearing on the validity of a similar variation in another State. 'What is marginally permissible in one State may be unsatisfactory in another, depending on the particular circumstances of the case.' Reynolds v. Sims, 377 U.S. 553, 578, 84 S.Ct. 1362, 1390.
8
As this case comes to us we have no alternative but to reverse. The District Court made no attempt to explain or justify the many variations among the legislative districts. As for the State, all it suggested in either the lower court or here is that its plan comes as close as 'practical' to complete population equality and that the State was attempting to follow congressional district lines. There was, however, no attempt to justify any particular deviations, even the larger ones, with respect to either of these considerations. Moreover, the State's brief states only that the legislature followed 'in most instances' the congressional boundaries, and with respect to 'practicality' it seems quite obvious that the State could have come much closer to providing districts of equal population than it did. The appellants themselves placed before the court their own plan which revealed much smaller variations between the districts than did the plan approved by the District Court. Furthermore, appellants suggested to the District Court specific amendments to the legislative plan which, if they had been accepted, would have measurably reduced the population differences between many of the districts. Appellants' own plan and their suggested amendments to the legislative plan might have been infirm in other respects but they do demonstrate that a closer approximation to equally populated districts was a feasible undertaking. The State, with admirable candor, states that it offered no evidence in the District Court to explain the challenged variations with respect to either the house or the senate. In its view, however, the plan should be approved on the record as it is.
9
We think the better view is that taken by the three-judge court in Maryland which disapproved a legislative plan involving an overrepresentation of 14.90% and an underrepresentation of 14.38% because, as Judge Sobeloff said, there was 'no showing in this case that the difference of one-third is unavoidable or justified upon any legally acceptable ground.' Maryland Citizens Committee for Fair Congressional Redistricting, Inc. v. Tawes, D.C., 253 F.Supp. 731, 733. Compare League of Nebraska Municipalities v. Marsh, D.C., 24 F.Supp. 357, disapproving a ratio of 1.6 to 1 between the smallest and the largest district absent satisfactory explanation by the State, and Paulson v. Meier, D.C., 246 F.Supp. 36, which found a ratio between the smallest and largest district of 1.39 to 1 to be unjustified on the basis offered by the State.
10
The appellants complain of other aspects of the plan besides unequally populated legislative districts. Under the new statute three senators were not required to run for election in 1966 but were allowed to finish their present terms expiring in 1968. These three senators, as the District Court noted, were elected in districts that are identical in territory to their districts under the legislative plan. Also, one senate and six house seats were subject to residency requirements. The District Court found no invidious discrimination in these aspects of the plan. Appellants also claim that the legislative plan discriminates invidiously by underrepresenting the populous urban counties and by overrepresenting the sparsely settled rural counties in both houses. The court below found that 'what deviation there is does not discriminate to any great extent against any section of the state or against either rural or urban interests.' 258 F.Supp. 819, 827. In the light of our disposition of this case, however, we need not reach and decide any of these additional issues, although we note that Reynolds v. Sims indicates the constitutional impropriety of maintaining deviations from the equal population principle in deference to area and economic or other group interests. 377 U.S. 533, 579—580, 84 S.Ct. 1362, 1390—1391.
11
Reversed.
12
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, dissenting.
13
Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, laid down a 'one man, one vote' mandate for the structuring of all state legislatures, but the Court there recognized, as it does again today, that 'mathematical exactness * * * is not required,' ante, at 443, and that variations are acceptable if they 'are based on legitimate considerations incident to the effectuation of a rational state policy * * *.' 377 U.S., at 579, 84 S.Ct., at 1391, cited, ante, at 444. The Court refuses, however, to accept Florida's present legislative apportionment plan, at least on the record before us, because neither the State nor the District Court justified the relatively minor variations in population among some of the districts.
14
This holding seems to me to stand on its head the usual rule governing this Court's approach to the validity of legislative enactments, state as well as federal, which is, of course, that they come to us with a strong presumption of regularity and constitutionality. See, e.g., Butler v. Commonwealth of Pennsylvania, 10 How. 402, 13 L.Ed. 472; Davis v. Department of Labor and Industries of Washington, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246; Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435. Accordingly, I do not believe the burden is on the State to justify every aspect of a complex plan completely restructuring its legislature, on pain of its being declared constitutionally invalid by the judiciary. I can think of no other area of law in which there is an analogous presumption of invalidity attaching to a legislative enactment of a State in an area of its admitted competence and superior experience. The burden of showing unconstitutionality should be left here, as in other cases, on the attacking party.
15
I would affirm the judgment of the District Court on the grounds (1) that the plan enacted by the Florida Legislature is in substantial compliance with the rule of Reynolds v. Sims, supra, and (2) that the appellants have not shown any invidious purpose for, or effect flowing from, the mathematical variations among certain districts.
| 12
|
385 U.S. 374
87 S.Ct. 534
17 L.Ed.2d 456
TIME, INC., Appellant,v.James J. HILL.
No. 22.
Reargued Oct. 18 and 19, 1966.
Decided Jan. 9, 1967.
[Syllabus from pages 374-375 intentionally omitted]
Harold R. Medina, Jr., New York City, for appellant.
Richard M. Nixon, New York City, for appellee.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The question in this case is whether appellant, publisher of Life Magazine, was denied constitutional protections of speech and press by the application by the New York courts of §§ 50—51 of the New York Civil Rights Law, McKinney's Consol. Laws, c. 61 to award appellee damages on allegations that Life falsely reported that a new play portrayed an experience suffered by appellee and his family.
2
The article appeared in Life in February 1955. It was entitled 'True Crime Inspires Tense Play,' with the subtitle, 'The ordeal of a family trapped by convicts gives Broadway a new thriller, 'The Desperate Hours." The text of the article reads as follows:
3
'Three years ago Americans all over the country read about the desperate ordeal of the James Hill family, who were held prisoners in thier home outside Philadelphia by three escaped convicts. Later they read about it in Joseph Hayes's novel, The Desperate Hours, inspired by the family's experience. Now they can see the story re-enacted in Hayes's Broadway play based on the book, and next year will see it in his movie, which has been filmed but is being held up until the play has a chance to pay off.
4
'The play, directed by Robert Montgomery and expertly acted, is a heart-stopping account of how a family rose to heroism in a crisis. LIFE photographed the play during its Philadelphia tryout, transported some of the actors to the actual house where the Hills were besieged. On the next page scenes from the play are re-enacted on the site of the crime.'
5
The pictures on the ensuing two pages included an enactment of the son being 'roughed up' by one of the convicts, entitled 'brutish convict,' a picture of the daughter biting the hand of a convict to make him drop a gun, entitled 'daring daughter,' and one of the father throwing his gun through the door after a 'brave try' to save his family is foiled.
6
The James Hill referred to in the article is the appellee. He and his wife and five children involuntarily became the subjects of a front-page news story after being held hostage by three escaped convicts in their suburban, Whitemarsh, Pennsylvania, home for 19 hours on September 11—12, 1952. The family was released unharmed. In an interview with newsmen after the convicts departed, appellee stressed that the convicts had treated the family courteously, had not molested them, and had not been at all violent. The convicts were thereafter apprehended in a widely publicized encounter with the police which resulted in the killing of two of the convicts. Shortly thereafter the family moved to Connecticut. The appellee discouraged all efforts to keep them in the public spotlight through magazine articles or appearances on television.
7
In the spring of 1953, Joseph Hayes' novel, The Desperate Hours, was published. The story depicted the experience of a family of four held hostage by three escaped convicts in the family's suburban home. But, unlike Hill's experience, the family of the story suffer violence at the hands of the convicts; the father and son are beaten and the daughter subjected to a verbal sexual insult.
8
The book was made into a play, also entitled The Desperate Hours, and it is Life's article about the play which is the subject of appellee's action. The complaint sought damages under §§ 50—51 on allegations that the Life article was intended, to, and did, give the impression that the play mirrored the Hill family's experience, which, to the knowledge of defendant '* * * was false and untrue.' Appellant's defense was that the article was 'a subject of legitimate news interest,' 'a subject of general interest and of value and concern to the public' at the time of publication, and that it was 'published in good faith without any malice whatsoever * * *.' A motion to dismiss the complaint for substantially these reasons was made at the close of the case and was denied by the trial judge on the ground that the proofs presented a jury question as to the truth of the article.
9
The jury awarded appellee $50,000 compensatory and $25,000 punitive damages. On appeal the Appellate Division of the Supreme Court ordered a new trial as to damages but sustained the jury verdict of liability. The court said as to liability:
10
'Although the play was fictionalized, Life's article portrayed it as a reenactment of the Hills' experience. It is an inescapable conclusion that this was done to advertise and attract further attention to the play, and to increase present and future magazine circulation as well. It is evident that the article cannot be characterized as a mere dissemination of news, nor even an effort to supply legitimate newsworthy information in which the public had, or might have a proper interest.' 18 A.D.2d 485, 489, 240 N.Y.S.2d 286, 290.
11
At the new trial on damages, a jury was waived and the court awarded $30,000 compensatory damages without punitive damages.2
12
The New York Court of Appeals affirmed the Appellate Division 'on the majority and concurring opinions at the Appellate Division,' two judges dissenting. 15 N.Y.2d 986, 260 N.Y.S.2d 7, 207 N.E.2d 604. We noted probable jurisdiction of the appeal to consider the important constitutional questions of freedom of speech and press involved. 382 U.S. 936, 86 S.Ct. 392, 15 L.Ed.2d 348. After argument last Term, the case was restored to the docket for reargument, 384 U.S. 995, 86 S.Ct. 1911, 16 L.Ed.2d 1012. We reverse and remand the case to the Court of Appeals for further proceedings not inconsistent with this opinion.
I.
13
Since the reargument, we have had the advantage of an opinion of the Court of Appeals of New York which has materially aided us in our understanding of that court's construction of the statute. It is the opinion of Judge Keating for the court in Spahn v. Julian Messner, Inc., 18 N.Y.2d 324, 274 N.Y.S.2d 877, 221 N.E.2d 543 (1966). The statute was enacted in 1903 following the decision of the Court of Appeals in 1902 in Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442, 59 L.R.A. 478. Roberson was an action against defendants for adorning their flour bags with plaintiff's picture without her consent. It was grounded upon an alleged invasion of a 'right of privacy,' defined by the Court of Appeals to be 'the claim that a man has the right to pass through this world, if he wills, without having his picture published * * * or his eccentricities commented upon either in handbills, circulars, catalogues, periodicals or newspapers * * *.' 171 N.Y., at 544, 64 N.E., at 443. The Court of Appeals traced the theory to the celebrated article of Warren and Brandeis, entitled The Right to Privacy, published in 1890. 4 Harv.L.Rev. 193.3 The Court of Appeals, however, denied the existence of such a right at common law but observed that '(t)he legislative body could very well interfere and arbitrarily provide that no one should be permitted for his own selfish purpose to use the picture or the name of another for advertising purposes without his consent.' 171 N.Y., at 545, 64 N.E., at 443. The legislature enacted §§ 50—51 in response to that observation.
14
Although 'Right of Privacy' is the caption of §§ 50—51, the term nowhere appears in the text of the statute itself. The text of the statute appears to proscribe only conduct of the kind involved in Roberson, that is, the appropriation and use in advertising or to promote the sale of goods, of another's name, portrait or picture without his consent.4 An application of that limited scope would present different questions of violation of the constitutional protections for speech and press. Compare Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262, with New York Times Co. v. Sullivan, 376 U.S. 254, 265—266, 84 S.Ct. 710, 718—719, 11 L.Ed.2d 686.
15
The New York courts have, however, construed the statute to operate much more broadly. In Spahn the Court of Appeals stated that 'Over the years since the statute's enactment in 1903, its social desirability and remedial nature have led to its being given a liberal construction consonant with its over-all purpose * * *.' 18 N.Y.2d, at 327, 274 N.Y.S.2d, at 879, 221 N.E.2d, at 544. Specifically, it has been held in some circumstances to authorize a remedy against the press and other communications media which publish the names, pictures, or portraits of people without their consent. Reflecting the fact, however, that such applications may raise serious questions of conflict with the constitutional protections for speech and press, decisions under the statute have tended to limit the statute's application.5 '(E)ver mindful that the written word or picture is involved, courts have engrafted exceptions and restrictions onto the statute to avoid any conflict with the free dissemination of thoughts, ideas, newsworthy events, and matters of public interest.' Id., 18 N.Y.2d, at 328, 274 N.Y.S.2d, at 879, 221 N.E.2d, at 544—545.
16
In the light of questions that counsel were asked to argue on reargument,6 it is particularly relevant that the Court of Appeals made crystal clear in the Spahn opinion that truth is a complete defense in actions under the statute based upon reports of newsworthy people or events. The opinion states: 'The factual reporting of newsworthy persons and events is in the public interest and is protected.' 18 N.Y.2d, at 328, 274 N.Y.S.2d, at 879, 221 N.E.2d, at 545.7 Constitutional questions which might arise if truth were not a defense are therefore of no concern. Cf. Garrison v. State of Louisiana, 379 U.S. 64, 72—75, 85 S.Ct. 209, 214—216, 13 L.Ed.2d 125.
17
But although the New York statute affords 'little protection' to the 'privacy' of a newsworthy person, 'whether he be such by choice or involuntarily'8 the statute gives him a right of action when his name, picture, or portrait is the subject of a 'fictitious' report or article.9 Spahn points up the distinction. Spahn was an action under the statute brought by the well-known professional baseball pitcher, Warren Spahn. He sought an injunction and damages against the unauthorized publication of what purported to be a biography of his life. The trial judge had found that 'the record unequivocally establishes that the book publicizes areas of Warren Spahn's personal and private life, albeit inaccurate and distorted, and consists of a host, a preponderant percentage, of factual errors, distortions and fanciful passages * * *.' 43 Misc.2d 219, 232, 250 N.Y.S.2d 529, 542. The Court of Appeals sustained the holding that in these circumstances the publication was proscribed by § 51 of the Civil Rights Law and was not within the exceptions and restrictions for newsworthy events engrafted onto the statute. The Court of Appeals said:
18
'But it is erroneous to confuse privacy with 'personality' or to assume that privacy, though lost for a certain time or in a certain context, goes forever unprotected * * *. Thus it may be appropriate to say that the plaintiff here, Warren Spahn, is a public personality and that, insofar as his professional career is involved, he is substantially without a right to privacy. That is not to say, however, that his 'personality' may be fictionalized and that, as fictionalized, it may be exploited for the defendants' commercial benefit through the medium of an unauthorized biography.' Spahn, supra, 18 N.Y.2d, at 328, 274 N.Y.S.2d, at 879, 221 N.E.2d, at 545.
19
As the instant case went to the jury, appellee, too, was regarded to be a newsworthy person 'substantially without a right to privacy' insofar as his hostage experience was involved, but to be entitled to his action insofar as that experience was 'fictionalized' and 'exploited for the defendants' commercial benefit.' 'Fictionalization,' the Spahn opinion states, 'is the heart of the cases in point.' 18 N.Y.2d, at 328, 274 N.Y.S.2d, at 879, 221 N.E.2d, at 545.
20
The opinion goes on to say that the 'establishment of minor errors in an otherwise accurate' report does not prove 'fictionalization.' Material and substantial falsification is the test. However, it is not clear whether proof of knowledge of the falsity or that the article was prepared with reckless disregard for the truth is also required. In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, we held that the Constitution delimits a State's power to award damages for libel in actions brought by public officials against critics of their official conduct. Factual error, content defamatory of official reputation, or both, are insufficient for an award of damages for false statements unless actual malice knowledge that the statements are false or in reckless disregard of the truth—is alleged and proved. The Spahn opinion reveals that the defendant in that case relied on New York Times as the basis of an argument that application of the statute to the publication of a substantially fictitious biography would run afoul of the constitutional guarantees. The Court of Appeals held that New York Times had no application. The court, after distinguishing the cases on the ground that Spahn did not deal with public officials or official conduct, then says, 'The free speech which is encouraged and essential to the operation of a healthy government is something quite different from an individual's attempt to enjoin the publication of a fictitious biography of him. No public interest is served by protecting the dissemination of the latter. We perceive no constitutional infirmities in this respect.' 18 N.Y.2d at 329, 274 N.Y.S.2d, at 880, 221 N.E.2d, at 546.
21
If this is meant to imply that proof of knowing or reckless falsity is not essential to a constitutional application of the statute in these cases, we disagree with the Court of Appeals.10 We hold that the constitutional protections for speech and press preclude the application of the New York statute to redress false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth.
22
The guarantees for speech and press are not the preserve of political expression or comment upon public affairs, essential as those are to healthy government. One need only pick up any newspaper or magazine to comprehend the vast range of published matter which exposes persons to public view, both private citizens and public officials. Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press. '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.' Thornhill v. State of Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 744, 84 L.Ed. 1093. 'No suggestion can be found in the Constitution that the freedom there guaranteed for speech and the press bears an inverse ratio to the timeliness and importance of the ideas seeking expression.' Bridges v. State of California, 314 U.S. 252, 269, 62 S.Ct. 190, 196, 86 L.Ed. 192. We have no doubt that the subject of the Life article, the opening of a new play linked to an actual incident, is a matter of public interest. 'The line between the informing and the entertaining is too elusive for the protection of * * * (freedom of the press).' Winters v. People of State of New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840. Erroneous statement is no less inevitable in such a case than in the case of comment upon public affairs, and in both, if innocent or merely negligent, '* * * it must be protected if the freedoms of expression are to have the 'breathing space' that they 'need * * * to survive' * * *.' New York Times Co. v. Sullivan, supra, 376 U.S., at 271—272, 84 S.Ct., at 721, 11 L.Ed.2d 686. As James Madison said, 'Some degree of abuse is inseparable from the proper use of every thing, and in no instance is this more true than in that of the press.' 4 Elliot's Debates on the Federal Constitution 571 (1876 ed.). We create a grave risk of serious impairment of the indispensable service of a free press in a free society if we saddle the press with the impossible burden of verifying to a certainty the facts associated in news articles with a person's name, picture or portrait, particularly as related to nondefamatory matter. Even negligence would be a most elusive standard, especially when the content of the speech itself affords no warning of prospective harm to another through falsity. A negligence test would place on the press the intolerable burden of guessing how a jury might assess the reasonableness of steps taken by it to verify the accuracy of every reference to a name, picture or portrait.
23
In this context, sanctions against either innocent or negligent misstatement would present a grave hazard of discouraging the press from exercising the constitutional guarantees. Those guarantees are not for the benefit of the press so much as for the benefit of all of us. A broadly defined freedom of the press assures the maintenance of our political system and an open society. Fear of large verdicts in damage suits for innocent or merely negligent misstatement, even fear of the expense involved in their defense, must inevitably cause publishers to 'steer * * * wider of the unlawful zone,' New York Times Co. v. Sullivan, 376 U.S., at 279, 84 S.Ct., at 725, 11 L.Ed.2d 686; see also Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460; Smith v. People of State of California, 361 U.S. 147, 153—154, 80 S.Ct. 215, 218—219, 4 L.Ed.2d 205; and thus 'create the danger that the legitimate utterance will be penalized.' Speiser v. Randall, supra, 357 U.S., at 526, 78 S.Ct., at 1342.
24
But the constitutional guarantees can tolerate sanctions against calculated falsehood without significant impairment of their essential function. We held in New York Times that calculated falsehood enjoyed no immunity in the case of alleged defamation of a public official concerning his official conduct. Similarly, calculated falsehood should enjoy no immunity in the situation here presented us. What we said in Garrison v. State of Louisiana, supra, 379 U.S., at 75, 85 S.Ct., at 216, 13 L.Ed.2d 125, is equally applicable:
25
'The use of calculated falsehood * * * would put a different cast on the constitutional question. Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published * * * should enjoy a like immunity. * * * For the 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. Calculated falsehood falls into that class of utterances which '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. * * *' Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031. Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.'
26
We find applicable here the standard of knowing or reckless falsehood, not through blind application of New York Times Co. v. Sullivan, relating solely to libel actions by public officials, but only upon consideration of the factors which arise in the particular context of the application of the New York statute in cases involving private individuals. This is neither a libel action by a private individual nor a statutory action by a public official. Therefore, although the First Amendment principles pronounced in New York Times guide our conclusion, we reach that conclusion only by applying these principles in this discrete context. It therefore serves no purpose to distinguish the facts here from those in New York Times. Were this a libel action, the distinction which has been suggested between the relative opportunities of the public official and the private individual to rebut defamatory charges might be germane. And the additional state interest in the protection of the individual against damage to his reputation would be involved. Cf. Rosenblatt v. Baer, 383 U.S. 75, 91, 86 S.Ct. 669, 679, 15 L.Ed.2d 724 (Stewart, J., concurring). Moreover, a different test might be required in a statutory action by a public official, as opposed to a libel action by a public official or a statutory action by a private individual. Different considerations might arise concerning the degree of 'waiver' of the protection the State might afford. But the question whether the same standard should be applicable both to persons voluntarily and involuntarily thrust into the public limelight is not here before us.
II.
27
Turning to the facts of the present case, the proofs reasonably would support either a jury finding of innocent or merely negligent misstatement by Life, or a finding that Life portrayed the play as a reenactment of the Hill family's experience reckless of the truth or with actual knowledge that the portrayal was false. The relevant testimony is as follows:
28
Joseph Hayes, author of the book, also wrote the play. The story theme was inspired by the desire to write about 'true crime' and for years before writing the book, he collected newspaper clippings of stories of hostage incidents. His story was not shaped by any single incident, but by several, including incidents which occurred in California, New York, and Detroit. He said that he did not consciously portray any member of the Hill family, or the Hill family's experience, although admitting that 'in a very direct way' the Hill experience 'triggered' the writing of the book and the play.
29
The Life article was prepared at the direction and under the supervision of its entertainment editor, Prideaux. He learned of the production of the play from a news story. The play's director, Robert Montgomery, later suggested to him that its interesting stage setting would make the play a worthwhile subject for an article in Life. At about the same time, Prideaux ran into a friend of author Hayes, a free-lance photographer, who told Prideaux in casual conversation that the play had a 'substantial connection with a true-life incident of a family being held by escaped convicts near Philadelphia.' As the play was trying out in Philadelphia, Prideaux decided to contact the author. Hayes confirmed that an incident somewhat similar to the play had occurred in Philadelphia, and agreed with Prideaux to find out whether the former Hill residence would be available for the shooting of pictures for a Life article. Prideaux then met with Hayes in Philadelphia where he saw the play and drove with Hayes to the former Hill residence to test its suitability for a picture story. Neither then nor thereafter did Prideaux question Hayes about the extent to which the play was based on the Hill incident. 'A specific question of that nature was never asked, but a discussion of the play itself, what the play was about, in the light of my own knowledge of what the true incident was about, confirmed in my mind beyond any doubt that there was a relationship, and Mr. Hayes' presence at this whole negotiation was tacit proof of that.'
30
Prideaux sent photographers to the Hill residence for location photographs of scenes of the play enacted in the home, and proceeded to construct the text of the article. In his 'story file' were several news clippings about the Hill incident which revealed its nonviolent character, and a New York Times article by Hayes in which he stated that the play 'was based on various news stories,' mentioning incidents in New York, California, Detroit and Philadelphia.
31
Prideaux's first draft made no mention of the Hill name except for the caption of one of the photographs. The text related that a true story of a suburban Philadelphia family had 'sparked off' Hayes to write the novel, that the play was a 'somewhat fictionalized' account of the family's heroism in time of crisis. Prideaux's research assistant, whose task it was to check the draft for accuracy, put a question mark over the words 'somewhat fictionalized.' Prideaux testified that the question mark 'must have been' brought to his attention, although he did not recollect having seen it. The draft was also brought before the copy editor, who, in the presence of Prideaux, made several changes in emphasis and substance. The first sentence was changed to focus on the Hill incident, using the family's name; the novel was said to have been 'inspired' by that incident, and the play was referred to as a 're-enactment.' The words 'somewhat fictionalized' were deleted.
32
Prideaux labeled as 'emphatically untrue' defense counsel's suggestion during redirect examination that from the beginning he knew that the play had no relationship to the Hill incident apart from being a hostage incident. Prideaux admitted that he knew the play was 'between a little bit and moderately factionalized,' but stated that he thought beyond doubt that the important quality, the 'heart and soul' of the play, was the Hill incident.
33
The jury might reasonably conclude from this evidence particularly that the New York Times article was in the story file, that the copy editor deleted 'somewhat fictionalized' after the research assistant questioned its accuracy, and that Prideaux admitted that he knew the play was 'between a little bit and moderately fictionalized'—that Life knew the falsity of, or was reckless of the truth in, stating in the article that 'the story reenacted' the Hill family's experience. On the other hand, the jury might reasonably predicate a finding of innocent or only negligent misstatement on the testimony that a statement was made to Prideaux by the free-lance photographer that linked the play to an incident in Philadelphia, that the author Hayes cooperated in arranging for the availability of the former Hill home, and that Prideaux thought beyond doubt that the 'heart and soul' of the play was the Hill incident.11
III.
34
We do not think, however, that the instructions confined the jury to a verdict of liability based on a finding that the statements in the article were made with knowledge of their falsity or in reckless disregard of the truth. The jury was instructed that liability could not be found under §§ 50—51 'merely because of some incidental mistake of fact, or some incidental incorrect statement,' and that a verdict of liability could rest only on findings that (1) Life published the article, 'not to disseminate news, but was using plaintiffs' names, in connection with a fictionalized episode as to plaintiffs' relationship to The Desperate Hours'; the Court variously restated this 'fictionalization' requirement in terms such as whether appellant 'altered or changed the true facts concerning plaintiffs' relationship to The Desperate Hours, so that the article, as published, constituted substantially fiction or a fictionalized version * * *,' whether the article constituted 'fiction,' or was 'fictionalized'; and that (2) the article was published to advertise the play or 'for trade purposes.' This latter purpose was variously defined as one 'to amuse, thrill, astonish or move the reading public so as to increase the circulation of the magazine or for some other material benefit,' 'to increase circulation or enhance the standing of the magazine with its readers,' and 'for the publisher's profits through increased circulation, induced by exploitation of the plaintiffs.'
35
The court also instructed the jury that an award of punitive damages was justified if the jury found that the appellant falsely connected appellee to the play 'knowingly or through failure to make a reasonable investigation,' adding 'You do not need to find that there was any actual ill will or personal malice toward the plaintiffs if you find a reckless or wanton disregard of the plaintiffs' rights.'
36
Appellee argues that the instructions to determine whether Life 'altered or changed' the true facts, and whether, apart from incidental errors, the article was a 'substantial fiction' or a 'fictionalized version' were tantamount to instructions that the jury must find that Life knowingly falsified the facts. We do not think that the instructions bear that interpretation, particularly in light of the marked contrast in the instructions on compensatory and punitive damages. The element of 'knowingly' is mentioned only in the instruction that punitive damages must be supported by a finding that Life falsely connected the Hill family with the play 'knowingly or through failure to make a reasonable investigation.' Moreover, even as to punitive damages, the instruction that such damages were justified on the basis of 'failure to make a reasonable investigation' is an instruction that proof of negligent misstatement is enough, and we have rejected the test of negligent misstatement as inadequate.12 Next, the trial judge plainly did not regard his instructions as limiting the jury to a verdict of liability based on a finding of knowing or reckless falsity, he denied appellant's motion to dismiss after the close of the evidence because he perceived that it was for the jury to find 'whether the Life article was true or whether an inference could be obtained from reading it that it was not true.' This implies a view that 'fictionalization' was synonymous with 'falsity' without regard to knowledge or even negligence, except for the purpose of an award of punitive damages. Finally, nothing in the New York cases decided at the time of trial limited liability to cases of knowing or reckless falsity and Spahn, decided since, has left the question in doubt.13
37
The requirement that the jury also find that the article was published 'for trade purposes,' as defined in the charge, cannot save the charge from constitutional infirmity. 'That books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment.' Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501—502, 72 S.Ct. 777, 780, 96 L.Ed. 1098; see New York Times Co. v. Sullivan, 376 U.S., at 266, 84 S.Ct., at 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; cf. Ex parte Jackson, 96 U.S. 727, 733, 24 L.Ed. 877; Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660; Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949.
IV.
38
The appellant argues that the statute should be declared unconstitutional on its face if construed by the New York courts to impose liability without proof of knowing or reckless falsity.14 Such a declaration would not be warranted even if it were entirely clear that this had previously been the view of the New York courts. The New York Court of Appeals, as the Spahn opinion demonstrates, has been assiduous in construing the statute to avoid invasion of the constitutional protections of speech and press. We, therefore, confidently except that the New York courts will apply the statute consistently with the constitutional command. Any possible difference with us as to the thrust of the constitutional command is narrowly limited in this case to the failure of the trial judge to instruct the jury that a verdict of liability could be predicated only on a finding of knowing or reckless falsity in the publication of the Life article.
39
The judgment of the Court of Appeals is set aside and the case is remanded for further proceedings not inconsistent with this opinion.
40
It is so ordered.
41
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, concurring.
42
I concur in reversal of the judgment in this case based on the grounds and reasons stated in the Court's opinion. I do this, however, in order for the Court to be able at this time to agree on an opinion in this important case based on the prevailing constitutional doctrine expressed in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. The Court's opinion decides the case in accordance with this doctrine, to which the majority adhere. In agreeing to the Court's opinion, I do not recede from any of the views I have previously expressed about the much wider press and speech freedoms I think the First and Fourteenth Amendments were designed to grant to the people of the Nation. See, e.g., New York Times Co. v. Sullivan, 376 U.S., at 293, 84 S.Ct., at 733 (concurring opinion); Rosenblatt v. Baer, 383 U.S. 75, 94, 86 S.Ct. 669, 680, 15 L.Ed.2d 597 (concurring and dissenting opinion).
I.
43
I acquiesce in the application here of the narrower constitutional view of New York Times with the belief that this doctrine too is bound to pass away as its application to new cases proves its inadequacy to protect freedom of the press from destruction in libel cases and other cases like this one. The words 'malicious' and particularly 'reckless disregard of the truth' can never serve as effective substitutes for the First Amendment words: '* * * make no law * * * abridging the freedom of speech, or of the press * * *.' Experience, I think, is bound to prove that First Amendment freedoms can no more be permanently diluted or abridged by this Court's action than could the Sixth Amendment's guarantee of right to counsel. I think the fate that befell Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (cf. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799), is already foreseeable, even if only dimly, for the New York Times' dilution of First Amendment rights.
II.
44
I think it not inappropriate to add that it would be difficult, if not impossible, for the Court ever to sustain a judgment against Time in this case without using the recently popularized weighing and balancing formula. Some of us have pointed out from time to time that the First Amendment freedoms could not possibly live with the adoption of that Constitution - ignoring - and - destroying technique,1 when there are, as here, palpable penalties imposed on speech or press specifically because of the views that are spoken or printed. The prohibitions of the Constitution were written to prohibit certain specific things, and one of the specific things prohibited is a law which abridges freedom of the press. That freedom was written into the Constitution and that Constitution is or should be binding on judges as well as other public officers. The 'weighing' doctrine plainly encourages and actually invites judges to choose for themselves between conflicting values, even where, as in the First Amendment, the Founders made a choice of values, one of which is a free press. Though the Constitution requires that judges swear to obey and enforce it, it is not altogether strange that all judges are not always dead set against constitutional interpretations that expand their powers, and that when power is once claimed by some, others are loath to give it up.
45
Finally, if the judicial balancing choice of constitutional changes is to be adopted by this Court, I could wish it had not started on the First Amendment. The freedoms guaranteed by that Amendment are essential freedoms in a government like ours. That Amendment was deliberately written in language designed to put its freedoms beyond the reach of government to change while it remained unrepealed.2 If judges have, however, by their own fiat today created a right of privacy equal to or superior to the right of a free press that the Constitution created, then tomorrow and the next day and the next, judges can create more rights that balance away other cherished Bill of Rights freedoms. If there is any one thing that could strongly indicate that the Founders were wrong in reposing so much trust in a free press, I would suggest that it would be for the press itself not to wake up to the grave danger to its freedom, inherent and certain in this 'weighing process.' Life's conduct here was at most a mere understandable and incidental error of fact in reporting a newsworthy event. One does not have to be a prophet to foresee that judgments like the one we here reverse can frighten and punish the press so much that publishers will cease trying to report news in a lively and readable fashion as long as there is—and there always will be doubt as to the complete accuracy of the newsworthy facts.3 Such a consummation hardly seems consistent with the clearly expressed purpose of the Founders to guarantee the press a favored spot in our free society.
46
Mr. Justice DOUGLAS, concurring.
47
As intimated in my separate opinion in Rosenblatt v. Baer, 383 U.S. 75, 88, 86 S.Ct. 669, 15 L.Ed.2d 597 and in the opinion of my Brother BLACK in the same case, id., at 94, 86 S.Ct., at 680, state action to abridge freedom of the press is barred by the First and Fourteenth Amendments where the discussion concerns matters in the public domain. The episode around which this book was written had been news of the day for some time. The most that can be said is that the novel, the play, and the magazine article revived that interest. A fictionalized treatment of the event is, in my view, as much in the public domain as would be a water color of the assassination of a public official. It seems to me irrelevant to talk of any right of privacy in this context. Here a private person is catapulted into the news by events over which he had no control. He and his activities are then in the public domain as fully as the matters at issue in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. Such privacy as a person normally has ceases when his life has ceased to be private.
48
Once we narrow the ambit of the First Amendment, creative writing is imperiled and the 'chilling effect' on free expression which we feared in Dombrowski v. Pfister, 380 U.S. 479, 487, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22,* is almost sure to take place. That is, I fear, the result once we allow an exception for 'knowing or reckless falsity.' Such an elusive exception gives the jury, the finder of the facts, broad scope and almost unfettered discretion. A trial is a chancy thing, no matter what safeguards are provided. To let a jury on this record return a verdict or not as it chooses is to let First Amendment rights ride on capricious or whimsical circumstances, for emotions and prejudices often do carry the day. The exception for 'knowing or reckless falsity' is therefore, in my view, an abridgment of speech that is barred by the First and Fourteenth Amendments. But as indicated in my Brother BLACK'S opinion I have joined the Court's opinion in order to make possible an adjudication that controls this litigation. Cf. Mr. Justice Rutledge, concurring, Screws v. United States, 325 U.S. 91, 113, 134, 65 S.Ct. 1031, 1041, 1051, 89 L.Ed. 1495.
49
Mr. Justice HARLAN, concurring in part and dissenting in part.
50
While I find much with which I agree in the opinion of the Court, I am constrained to express my disagreement with its view of the proper standard of liability to be applied on remand. Were the jury on retrial to find negligent rather than, as the Court requires, reckless or knowing 'fictionalization,' I think that federal constitutional requirements would be met.
I.
51
The Court's opinion demonstrates that the fictionalization doctrine upon which New York premises liability is one which would strip newsworthy material, otherwise protected, of its constitutional shield upon a mere showing of substantial falsity. I agree that the compensatory damage instruction given by the trial court required only such a determination and a finding of 'commercial purpose' to sustain liability. And reading the opinion of the Appellate Division in the light of other New York decisions I believe that this was the theory upon which the jury finding was sustained.1 True, the trial court told the jury that it must find that the appellant 'altered or changed the true facts.' But it did not specify whether this alteration or change would have to be reckless or negligent, or whether innocent variation from the facts as found by the jury would suffice for the award of damages. Clearly knowing falsification was not required, for the court refused appellant's request to charge that the jury must find in its favor unless it found knowing falsification.
52
The instructions on punitive damages required the jury to find at least 'failure to make a reasonable investigation,' in my view a crucial determination. However, the entire damage award was set aside as excessive by the Appellate Division which found it unduly influenced by inflammatory evidence. On remand for reconsideration of damages, only a compensatory award was made. This was the award affirmed by the Court of Appeals in the decision we are reviewing. With the case in this posture, I do not think it can fairly be said that there has been a binding jury interpretation of the degree of fault involved in the fictionalization and I agree with the Court that the conduct involved would bear a variety of interpretations.
53
Like the Court, I consider that only a narrow problem is presented by these facts. To me this is not 'privacy' litigation in its truest sense. See Prosser, Law of Torts § 112; Silver, Privacy and the First Amendment, 34 Ford.L.Rev. 553; but see Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U.L.Rev. 962. No claim is made that there was any intrusion upon the Hills' solitude or private affairs in order to obtain information for publication. The power of a State to control and remedy such intrusion for newsgathering purposes cannot be denied, cf. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, but is not here asserted. Similarly it may be strongly contended that certain facts are of such limited public interest and so intimate and potentially embarrassing to an individual that the State may exercise its power to deter publication. Feeney v. Young, 191 App.Div. 501, 181 N.Y.S. 481; see Sidis v. F—R Pub. Corp., 2 Cir., 113 F.2d 806, 808, 138 A.L.R. 15. But the instructions to the jury, the opinions in the New York appellate courts, and indeed the arguments advanced by both sides before this Court all recognize that the theme of the article in question was a perfectly proper one and that an article of this type could have been prepared without liability. Winters v. People of State of New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840. The record is replete with articles commenting on the genesis of The Desperate Hours, one of which was prepared by the author himself and used by appellee to demonstrate the supposed falsity of the Life piece. Finally no claim is made that appellant published the article to advance a commercial interest in the play. There is no evidence to show that Time, Inc., had any financial interest in the production or even that the article was published as an advertisement. Thus the question whether a State may apply more stringent limitations to the use of the personality in 'purely commercial advertising' is not before the Court. See Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262.
II.
54
Having come this far in step with the Court's opinion, I must part company with its sweeping extension of the principles of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. It was established in Times that mere falsity will not suffice to remove constitutional protection from published matter relating to the conduct of a public official that is of public concern. But that decision and those in which the Court has developed its doctrine, Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597; Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125, have never found independent value in false publications2 nor any reason for their protection except to add to the protection of truthful communication. And the Court has been quick to note that where private actions are involved the social interest in individual protection from falsity may be substantial. Rosenblatt v. Baer, supra, 383 U.S., at 86—87, n. 13, 86 S.Ct., at 676. Thus I believe that rigorous scrutiny of the principles underlying the rejection of the mere falsity criterion and the imposition of ancillary safeguards, as well as the interest which the State seeks to protect, is necessary to reach a proper resolution of this case.
55
Two essential principles seem to underlie the Court's rejection of the mere falsity criterion in New York Times. The first is the inevitability of some error in the situation presented in free debate especially when abstract matters are under consideration. Certainly that is illustrated here in the difficulty to be encountered in making a precise description of the relationship between the Hill incident and The Desperate Hours. The second is the Court's recognition that in many areas which are at the center of public debate 'truth' is not a readily identifiable concept, and putting to the pre-existing prejudices of a jury the determination of what is 'true' may effectively institute a system of censorship. Any nation which counts the Scopes trial as part of its heritage cannot so readily expose ideas to sanctions on a jury finding of falsity. See Cantwell v. State of Connecticut, 310 U.S. 296, 310, 60 S.Ct. 900, 906, 84 L.Ed. 1213. 'The marketplace of ideas' where it functions still remains the best testing ground for truth.
56
But these arguments against suppressing what is found to be 'false' on that ground alone do not negative a State's interest in encouraging the publication of well researched materials more likely to be true. Certainly it is within the power of the State to use positive means—the provision of facilities3 and training of students4— to further this end. The issue presented in this case is the constitutionality of a State's employment of sanctions to accomplish that same goal. The Court acknowledges that sanctions may be employed against knowing or reckless falsehoods but would seem to grant a 'talismanic immunity' to all unintentional errors. However, the distinction between the facts presented to us here and the situation at issue in the New York Times case and its progeny casts serious doubt on that grant of immunity and calls for a more limited 'breathing space' than that granted in criticism of public officials.
57
First, we cannot avoid recognizing that we have entered an area where the 'marketplace of ideas' does not function and where conclusions premised on the existence of that exchange are apt to be suspect. In Rosenblatt v. Baer, supra, the Court made the New York Times rationale operative where 'the public has an independent interest in the qualifications and performance of the person who holds it (government position), beyond the general public interest in the qualifications and performance of all government employees * * *.' Id., 383 U.S. at 86, 86 S.Ct., at 676. In elaboration the Court said: 'The employee's position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy.' Id., at 87, n. 13, 86 S.Ct., at 676. To me this seems a clear recognition of the fact that falsehood is more easily tolerated where public attention creates the strong likelihood of a competition among ideas. Here such competition is extremely unlikely for the scrutiny and discussion of the relationship of the Hill incident and the play is 'occasioned by the particular charges in controversy' and the matter is not one in which the public has an 'independent interest.' It would be unreasonable to assume that Mr. Hill could find a forum for making a successful refutation of the Life material or that the public's interest in it would be sufficient for the truth to win out by comparison as it might in that area of discussion central to a free society. Thus the state interest in encouraging careful checking and preparation of published material is far stronger than in New York Times. The dangers of unchallengeable untruth are far too well documented to be summarily dismissed.5
58
Second, there is a vast difference in the state interest in protecting individuals like Mr. Hill from irresponsibly prepared publicity and the state interest in similar protection for a public official. In New York Times we acknowledged public officials to be a breed from whom hardiness to exposure to charges, innuendoes, and criticisms might be demanded and who voltarily assumed the risk of such things by entry into the public arena. 376 U.S., at 273, 84 S.Ct., at 722. But Mr. Hill came to public attention through an unfortunate circumstance not of his making rather than his voluntary actions and he can in no sense be considered to have 'waived' any protection the State might justifiably afford him from irresponsible publicity. Not being inured to the vicissitudes of journalistic scrutiny such an individual is more easily injured and his means of self-defense are more limited. The public is less likely to view with normal skepticism what is written about him because it is not accustomed to seeing his name in the press and expects only a disinterested report.
59
The coincidence of these factors in this situation leads me to the view that a State should be free to hold the press to a duty of making a reasonable investigation of the underlying facts and limiting itself to 'fair comment'6 on the materials so gathered. Theoretically, of course, such a rule might slightly limit press discussion of matters touching individuals like Mr. Hill. But, from a pragmatic standpoint, until now the press, at least in New York, labored under the more exacting handicap of the existing New York privacy law and has certainly remained robust. Other professional activity of great social value is carried on under a duty of reasonable care7 and there is no reason to suspect the press would be less hardy than medical practitioners or attorneys for example. The 'freedom of the press' guaranteed by the First Amendment, and as reflected in the Fourteenth, cannot be thought to insulate all press conduct from review and responsibility for harm inflicted.8 The majority would allow sanctions against such conduct only when it is morally culpable. I insist that it can also be reached when it creates a severe risk of irremediable harm to individuals involuntarily exposed to it and powerless to protect themselves against it. I would remand the case to the New York courts for possible retrial under that principle.
60
A constitutional doctrine which relieves the press of even this minimal responsibility in cases of this sort seems to me unnecessary and ultimately harmful to the permanent good health of the press itself. If the New York Times case has ushered in such a trend it will prove in its long-range impact to have done a disservice to the true values encompassed in the freedoms of speech and press.
61
Mr. Justice FORTAS, with whom THE CHIEF JUSTICE and Mr. Justice CLARK join, dissenting.
62
The Court's holding here is exceedingly narrow. It declines to hold that the New York 'Right of Privacy' statute is unconstitutional. I agree. The Court concludes, however, that the instructions to the jury in this case were fatally defective because they failed to advise the jury that a verdict for the plaintiffs could be predicated only on a finding of knowing or reckless falsity in the publication of the Life article. Presumably, the appellee is entitled to a new trial. If he can stand the emotional and financial burden, there is reason to hope that he will recover damages for the reckless and irresponsible assault upon himself and his family which this article represents. But he has litigated this case for 11 years. He should not be subjected to the burden of a new trial without significant cause. This does not exist. Perhaps the purpose of the decision here is to indicate that this Court will place insuperable obstacles in the way of recovery by persons who are injured by reckless and heedless assaults provided they are in print, and even though they are totally divorced from fact. If so, I should think that the Court would cast its decision in constitutional terms. Short of that purpose, with which I would strongly disagree, there is no reason here to order a new trial. The instructions in this case are acceptable even within the principles today announced by the Court.
63
I fully agree with the views of my Brethren who have stressed the need for a generous construction of the First Amendment. I, too, believe that freedom of the press, of speech, assembly, and religion, and the freedom to petition are of the essence of our liberty and fundamental to our values. See, e.g., Brown v. State of Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966). I agree with the statement of my Brother Brennan, speaking for the Court in N.A.A.C.P. v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963), that 'These freedoms are delicate and vulnerable, as well as supremely precious in our society.' But I do not believe that whatever is in words, however much of an aggression it may be upon individual rights, is beyond the reach of the law, no matter how heedless of others' rights—how remote from public purpose, how reckless, irresponsible, and untrue it may be. I do not believe that the First Amendment precludes effective protection of the right of privacy—or, for that matter, an effective law of libel. I do not believe that we must or should, in deference to those whose views are absolute as to the scope of the First Amendment, be ingenious to strike down all state action, however circumspect, which penalizes the use of words as instruments of aggression and personal assault. There are great and important values in our society, none of which is greater than those reflected in the First Amendment, but which are also fundamental and entitled to this Court's careful respect and protection. Among these is the right to privacy, which has been eloquently extolled by scholars and members of this Court. Judge Cooley long ago referred to this right as the right 'to be let alone.'1 In 1890, Warren and Brandeis published their famous article 'The Right to Privacy,' in which they eloquently argued that the 'excesses' of the press in 'overstepping in every direction the obvious bounds of propriety and of decency' made it essential that the law recognize a right to privacy, distinct from traditional remedies for defamation, to protect private individuals against the unjustifiable infliction of mental pain and distress.2 A distinct right of privacy is now recognized, either as a 'commonlaw' right or by statute, in at least 35 States.3 Its exact scope varies in the respective jurisdictions. It is, simply stated, the right to be let alone; to live one's life as one chooses, free from assault, intrusion or invasion except as they can be justified by the clear needs of community living under a government of law. As Mr. Justice Brandeis said in his famous dissent in Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928), the right of privacy is 'the most comprehensive of rights and the right most valued by civilized men.'
64
This Court has repeatedly recognized this principle. As early as 1886, in Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746, this Court held that the doctrines of the Fourth and Fifth Amendments 'apply to all invasions on the part of the government and its employes of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property * * *.'
65
In 1949, the Court, in Wolf v. People of State of Colorado, 338 U.S. 25, 28—29, 69 S.Ct. 1359, 1361—1362, 93 L.Ed. 1782, described the immunity from unreasonable search and seizure in terms of 'the right of privacy.'4
66
Then, in the landmark case of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), this Court referred to 'the right to privacy,' no less important than any other right carefully and particularly reserved to the people,' as 'basic to a free society.' Id., at 656, 81 S.Ct. at 1692. Mr. Justice Clark, speaking for the Court, referred to 'the freedom from unconscionable invasions of privacy' as intimately related to the freedom from convictions based upon coerced confessions. He said that both served the cause of perpetuating 'principles of humanity and civil liberty (secured) * * * only after years of struggle.' Id., at 657, 81 S.Ct. at 1692, quoting from Bran v. United States, 168 U.S. 532, 544, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897). He said that they express 'supplementing phases of the same constitutional purpose—to maintain inviolate large areas of personal privacy.' Ibid., quoting from Feldman v. United States, 322 U.S. 487, 489 490, 64 S.Ct. 1082, 1083, 88 L.Ed. 1408 (1944).
67
In Griswold v. State of Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), the Court held unconstitutional a state law under which petitioners were prosecuted for giving married persons information and medical advice on the use of contraceptives. The holding was squarely based upon the right of privacy which the Court derived by implication from the specific guarantees of the Bill of Rights. Citing a number of prior cases, the Court (per Douglas, J.) held that 'These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.' Id., at 485, 85 S.Ct. at 1682. As stated in the concurring opinion of Mr. Justice Goldberg, with whom The Chief Justice and Mr. Justice Brennan joined: 'the right of privacy is a fundamental personal right, emanating 'from the totality of the constitutional scheme under which we live." Id., at 494, 85 S.Ct. at 1687.5
68
Privacy, then, is a basic right. The States may, by appropriate legislation and within proper bounds, enact laws to vindicate that right. Cf. Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949), sustaining a local ordinance regulating the use of sound trucks; and Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951), sustaining a state law restricting solicitation in private homes of magazine subscriptions. Difficulty presents itself because the application of such state legislation may impinge upon conflicting rights of those accused of invading the privacy of others. But this is not automatically a fatal objection.6 Particularly where the right of privacy is invaded by words—by the press or in a book or pamphlet the most careful and sensitive appraisal of the total impact of the claimed tort upon the congeries of rights is required. I have no hesitancy to say, for example, that where political personalities or issues are involved or where the event as to which the alleged invasion of privacy occurred is in itself a matter of current public interest, First Amendment values are supreme and are entitled to at least the types of protection that this Court extended in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). But I certainly concur with the Court that the greatest solicitude for the First Amendment does not compel us to deny to a State the right to provide a remedy for reckless falsity in writing and publishing an article which irresponsibly and injuriously invades the privacy of a quiet family for no purpose except dramatic interest and commercial appeal. My difficulty is that while the Court gives lip service to this principle, its decision, which it claims to be based on erroneous instructions, discloses hesitancy to go beyond the verbal acknowledgment.
69
The Court today does not repeat the ringing words of so many of its members on so many occasions in exaltation of the right of privacy. Instead, it reverses a decision under the New York 'Right of Privacy' statute because of the 'failure of the trial judge to instruct the jury that a verdict of liability could be predicated only on a finding of knowing or reckless falsity in the publication of the Life article.' In my opinion, the jury instructions, although they were not a textbook model, satisfied this standard.
70
In the first place, the Court does not adequately deal with the fact that the jury returned a verdict for exemplary or punitive damages, under special instructions dealing with them, as well as for compensatory damages. As to exemplary damages, the jury was specifically instructed that these might be awarded 'only' if the jury found from the evidence that the defendant 'falsely connected plaintiffs with The Desperate Hours, and that this was done knowingly or through failure to make a reasonable investigation.' The jury was then informed that 'You do not need to find that there was any actual ill will or personal malice toward the plaintiffs if you find a reckless or wanton disregard of the plaintiffs' rights.' (Emphasis supplied.) The jury awarded appellee $50,000 compensatory and $25,000 punitive damages. The judgment was reversed solely on the quantum of damages, the Appellate Division sustaining the finding of liability for both compensatory and exemplary damages. The Appellate Division's conclusion was that the award of damages was excessive, and it criticized the admission of certain evidence as improperly tending to cause the jury to return inflated damages. In subsequent proceedings before the trial court on assessment of damages, a jury was waived by stipulation of the parties, the case proceeded to reassessment of damages and the judge fixed the amount of damages at $30,000, compensatory only. Judgment thereupon was affirmed by the Court of Appeals. It is this judgment that is before us namely, jury findings of liability based on instructions covering both exemplary and compensatory damages, and an award stated to be for compensatory damages alone.7
71
The Court refers only to that part of the instructions as to exemplary damages which speaks in terms of the 'failure to make a reasonable investigation,' and condemns it as permitting a verdict based solely on 'negligent misstatement.' I respectfully submit that the instruction cannot fairly be so read. The instruction requires the jury to find both that (1) defendant 'falsely connected' plaintiffs with the play, and (2) did so knowingly or through failure to make a reasonable investigation. This is certainly a charge satisfying the Court's requirement that 'a verdict of liability could be predicated only on a finding of knowing or reckless falsity in the publication of the Life article.' An error in the course of investigation might be mere negligent misstatement. Failure to make a reasonable investigation is something else. The standard of a 'reasonable investigation' is certainly a minimum yardstick by which to measure the liability of publishers. It is certainly not incompatible with the full flavor of the First Amendment and disregard of this standard in the circumstances is recklessness. It might well be that what constitutes an adequate basis for a jury finding of failure to make a reasonable investigation would differ, for example, in the case of a daily newspaper as compared with a feature magazine. But here no such problem arises. The truth was in a folder on the desk of the author of the story. It was deliberately disregarded by his editor. Lead time on the story was three months.8
72
In addition, however, even if appellee had to rely only upon the instructions to the jury on compensatory damages, I do not agree that we should set aside the jury verdict and reverse the New York Court of Appeals. Such drastic action—the reversal of a jury verdict by this remote Court—is justified by the Court on the ground that the standard of liability on which the jury was instructed contravenes the Firth Amendment. But a jury instruction is not abracadabra. It is not a magical incantation, the slightest deviation from which will break the spell. Only its poorer examples are formalistic codes recited by a trial judge to please appellate masters. At its best, it is simple, rugged communication from a trial judge to a jury of ordinary people, entitled to be appraised in terms of its net effect. Instructions are to be viewed in this commonsense perspective, and not through the remote and distorting knothole of a distant appellate fence. Read in this perspective, the core of the instructions here on compensatory damages—even if we disregard the fact that the jury found liability under the more exacting instructions relating to exemplary damages—was sufficient to meet the majority's test. The gravamen of the court's charge, repeated three times in virtually the same words, was the following:
73
'It is for you to determine whether, in publishing the article, the defendant Time, Incorporated altered or changed the true facts concerning plaintiffs' relationship to The Desperate Hours, so that the article, as published, constituted substantially a fiction or fictionalized version for trade purposes * * *.' (Emphasis supplied.)
74
The jury was also instructed that 'Before the plaintiffs can be entitled to a verdict * * * you must find that the statements concerning the plaintiffs in the article constituted fiction, as compared with news, or matters which were newsworthy.' (Emphasis supplied.) With all respect, I submit that this is close enough to this Court's insistence upon 'knowing or reckless falsity' as to render a reversal arbitrary and unjustified. If the defendant altered or changed the true facts so that the article as published was a fictionalized version, this, in my judgment, was a knowing or reckless falsity. 'Alteration' or 'change' denotes a positive act—not a negligent or inadvertent happening. 'Fictionalization' and 'fiction' to the ordinary mind mean so departing from fact and reality as to be deliberately divorced from the fact—not merely in detail but in general and pervasive impact.9 The English language is not so esoteric as to permit serious consequences to turn upon a supposed difference between the instructions to the jury and this Court's formulation. Nor is the First Amendment in such delicate health that it requires or permits this kind of surgery, the net effect of which is not only an individual injustice, but an encouragement to recklessness and careless readiness to ride roughshod over the interests of others.
75
The courts may not and must not permit either public or private action that censors or inhibits the press. But part of this responsibility is to preserve values and procedures which assure the ordinary citizen that the press is not above the reach of the law—that its special prerogatives, granted because of its special and vital functions, are reasonably equated with its needs in the performance of these functions. For this Court totally to immunize the press—whether forthrightly or by subtle indirection in areas far beyond the needs of news, comment on public persons and events, discussion of public issues and the like would be no service to freedom of the press, but an invitation to public hostility to that freedom. This Court cannot and should not refuse to permit under state law the private citizen who is aggrieved by the type of assault which we have here and which is not within the specially protected core of the First Amendment to recover compensatory damages for recklessly inflicted invasion of his rights.
76
Accordingly, I would affirm.
1
The complete text of the New York Civil Rights Law §§ 50 51 is as follows:
§ 50. Right of privacy
'A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.'
§ 51. Action for injunction and for damages
'Any person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person's name, portrait or picture in such manner as is forbidden or declared to be unlawful by the last section, the jury, in its discretion, may award exemplary damages. But nothing contained in this act shall be so construed as to prevent any person, firm or corporation, practicing the profession of photography, from exhibiting in or about his or its establishment specimens of the work of such establishment, unless the same in continued by such person, firm or corporation after written notice objecting thereto has been given by the person portrayed; and nothing contained in this act shall be so construed as to prevent any person, firm or corporation from using the name, portrait or picture of any manufacturer or dealer in connection with the goods, wares and merchandise manufactured, produced or dealt in by him which he has sold or disposed of with such name, portrait or picture used in connection therewith; or from using the name, portrait or picture of any author, composer or artist in connection with his literary, musical or artistic productions which he has sold or disposed of with such name, portrait or picture used in connection therewith.'
2
Initially, appellee's wife was joined in the action, and was awarded $75,000 compensatory and $25,000 punitive damages by the jury. However, her action was apparently dismissed by stipulation prior to remand, because the action has since proceeded solely upon appellee's judgment.
3
The various facets of this 'right' have been the subject of much comment. See, e.g., Beaney, The Constitutional Right to Privacy in the Supreme Court, 1962 Sup.Ct.Rev. 212; Prosser, Privacy, 48 Calif.L.Rev. 383 (1960); Westin, Science, Privacy, and Freedom: Issues and Proposals for the 1970's (Part I), 66 Col.L.Rev. 1003 (1966); Feinberg, Recent Developments in the Law of Privacy, 48 Col.L.Rev. 713, 717—726 (1948). The latest collection of articles appears in 31 Law & Contemp. Prob. 251—435 (1966). The commentary relates not so much to the assertion of constitutional protections against intrusions by government, see Griswold v. State of Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, as to rights of action for injunctive relief or damages to combat intrusive behavior in the private sector of society.
4
Utah's statute was modeled on New York's and, following early New York decisions, the Utah Supreme Court has construed it to afford a cause of action only in such cases. Donahue v. Warner Bros. Pictures Dist. Corp., 2 Utah 2d 256, 272 P.2d 177 (1954).
5
See, e.g., Sidis v. F—R Pub. Corp., 113 F.2d 806, 138 A.L.R. 15 (C.A.2d Cir.), cert. denied, 311 U.S. 711, 61 S.Ct. 393, 85 L.Ed. 462 (1940); Sweenek v. Pathe News, Inc., 16 F.Supp. 746 (D.C.E.D.N.Y.1936); Gautier v. Pro-Football, Inc., 278 App.Div. 431, 106 N.Y.S.2d 553 (1951), aff'd, 304 N.Y. 354, 107 N.E.2d 485 (1952); Molony v. Boy Comics Pubs., Inc., 277 App.Div. 166, 98 N.Y.S.2d 119 (1950); Humiston v. Universal Film Mfg. Co., 189 App.Div. 467, 178 N.Y.S. 752 (1919); Colyer v. Richard K. Fox Pub. Co., 162 App.Div. 297, 146 N.Y.S. 999 (1914); Koussevitzky v. Allen, Towne & Heath, Inc., 188 Misc. 479, 68 N.Y.S.2d 779, aff'd, 272 App.Div. 759, 69 N.Y.S.2d 432 (1947); Lahiri v. Daily Mirror, Inc., 162 Misc. 776, 295 N.Y.S. 382 (1937).
6
'Upon reargument, counsel are requested to discuss in their further briefs and oral arguments, in addition to the other issues, the following questions:
'(1) Is the truthful presentation of a newsworthy item ever actionable under the New York statute as construed or on its face? If so, does appellant have standing to challenge that aspect of the statute?
'(2) Should the per curiam opinion of the New York Court of Appeals be read as adopting the following portion of the concurring opinion in the Appellate Division?
"However, if it can be clearly demonstrated that the newsworthy item is presented, not for the purpose of disseminating news, but rather for the sole purpose of increasing circulation, then the rationale for exemption from section 51 no longer exists and the exemption should not apply. In such circumstances the privilege to use one's name should not be granted even though a true account of the event be given—let alone when the account is sensationalized and fictionalized." 384 U.S. 995, 86 S.Ct. 1911, 16 L.Ed.2d 1012.
7
This limitation to newsworthy persons and events does not of course foreclose an interpretation of the statute to allow damages where 'Revelations may be so intimate and so unwarranted in view of the victim's position as to outrage the community's notions of decency.' Sidis v. F—R Pub. Corp., 113 F.2d 806, 809 (C.A.2d Cir.), cert. denied, 311 U.S. 711, 61 S.Ct. 393, 85 L.Ed. 462 (1940). Cf. Garner v. Triangle Pubs., Inc., 97 F.Supp. 546, 550 (D.C.S.D.N.Y.1951); Restatement, Torts, § 867 comment d (1939). See Id., illust. 6. This case presents no question whether truthful publication of such matter could be constitutionally proscribed.
It has been said that a 'right of privacy' has been recognized at common law in 30 States plus the District of Columbia and by statute in four States. See Prosser, Law of Torts 831—832 (3d ed. 1964). Professor Kalven notes, however, that since Warren and Brandeis championed an action against the press for public disclosure of truthful but private details about the individual which caused emotional upset to him, 'it has been agreed that there is a generous privilege to serve the public interest in news. * * * What is at issue, it seems to me, is whether the claim of privilege is not so overpowering as virtually to swallow the tort. What can be left of the vaunted new right after the claims of privilege have been confronted?' Kalven, 'Privacy in Tort Law—Were Warren and Brandeis Wrong?' 31 Law & Contemp.Prob. 326, 335—336 (1966). Some representative cases in which the State 'right of privacy' was held to give way to the right of the press to publish matters of public interest are Afro-American Pub. Co. v. Jaffe, 125 U.S.App.D.C. 70, 366 F.2d 649 (1966); Wagner v. Fawcett Pubs., 307 F.2d 409 (C.A.7th
Cir. 1962); Jenkins v. Dell Pub. Co., 251 F.2d 447 (C.A.3d Cir. 1958); Elmhurst v. Pearson, 80 U.S.App.D.C. 372, 153 F.2d 467 (1946); Thompson v. Curtis Pub. Co., 193 F.2d 953 (C.A.3d Cir. 1952); Samuel v. Curtis Pub. Co., 122 F.Supp. 327 (D.C.N.D.Cal.1954); Miller v. N.B.C., 157 F.Supp. 240 (D.C.Del.1957); Berg v. Minneapolis Star & Tribune Co., 79 F.Supp. 957 (D.C.Minn.1948); Smith v. Doss, 251 Ala. 250, 37 So.2d 118 (1948); Smith v. Suratt, 7 Alaska 416 (1926); Metter v. Los Angeles Examiner, 35 Cal.App.2d 304, 95 P.2d 491 (1939); Barbieri v. News-Journal Co., 189 A.2d 773 (Del.1963); Jacova v. Southern Radio & T.V. Co., 83 So.2d 34 (Fla.1955); Waters v. Fleetwood, 212 Ga. 161, 91 S.E.2d 344 (1956); Buzinski v. Do-All Co., 31 Ill.App.2d 191, 175 N.E.2d 577 (1961); Jones v. Herald Post Co., 230 Ky. 227, 18 S.W.2d 972 (1929); Kelley v. Post Pub. Co., 327 Mass. 275, 98 N.E.2d 286 (1951); Martin v. Dorton, 210 Miss. 668, 50 So.2d 391 (1951); Hubbard v. Journal Pub. Co., 69 N.M. 473, 368 P.2d 147 (1962); Schnabel v. Meredith, 378 Pa. 609, 107 A.2d 860 (1954); Meetze v. Associated Press, 230 S.C. 330, 95 S.E.2d 606 (1956); Truxes v. Kenco Enterprises, 80 S.D. 104, 119 N.W.2d 914 (1963). See Restatement, Torts § 867, comment d (1939).
8
'One of the clearest exceptions to the statutory prohibition is the rule that a public figure, whether he be such by choice or involuntarily, is subject to the often searching beam of publicity and that, in balance with the legitimate public interest, the law affords his privacy little protection,' Spahn, supra, at 18 N.Y.2d, at 328, 274 N.Y.S.2d, at 879, 221 N.E.2d, at 545.
9
Binns v. Vitagraph Co., 210 N.Y. 51, 103 N.E. 1108, L.R.A.1915C, 839 (1913); Youssoupoff v. Columbia Broadcasting System, Inc., 19 A.D.2d 865, 244 N.Y.S.2d 1 (1965); Sutton v. Hearst Corp., 277 App.Div. 155, 98 N.Y.S.2d 233 (1950); Koussevitzky v. Allen, Towne and Heath, Inc., 188 Misc. 479, 68 N.Y.S.2d 779, aff'd 272 App.Div. 759, 69 N.Y.S.2d 432 (1947); Lahiri v. Daily Mirror, Inc., 162
Misc. 776, 295 N.Y.S. 382 (1937). The doctrine of 'fictionalization' has been applied where there is no statute. See, e.g., Leverton v. Curtis Pub. Co., 192 F.2d 974 (C.A.3d Cir. 1951); Hazlitt v. Fawcett Pubs., 116 F.Supp. 538 (D.C.Conn.1953); Garner v. Triangle Pubs., Inc., 97 F.Supp. 546 (D.C.S.D.N.Y.1951). Commentators have likened the interest protected in those 'privacy' cases which focus upon the falsity of the matter to that protected in cases of libel and slander—injury to the reputation. See Prosser, Privacy, 48 Calif.L.Rev. 383, 398—401 (1960); Wade, Defamation and the Right of Privacy, 15 Vand.L.Rev. 1093 (1962). But see Bloustein, Privacy As An Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U.L.Rev. 962, 991—993 (1964). Many 'right of privacy' cases could in fact have been brought as 'libel per quod' actions, and several have been brought on both grounds. See, e.g., Hazlitt v. Fawcett Pubs., supra; Freeman v. Busch Jewelry Co., 98 F.Supp. 963 (D.C.N.D.Ga.1951); Peay v. Curtis Pub. Co., 78 F.Supp. 305 (D.C.D.C.1948); Foster-Milburn Co. v. Chinn, 134 Ky. 424, 120 S.W. 364, 34 L.R.A., N.S., 1137 (1909). Although not usually thought of in terms of 'right of privacy,' all libel cases concern public exposure by false matter, but the primary harm being compensated is damage to reputation. In the 'right of privacy' cases the primary damage is the mental distress from having been exposed to public view, although injury to reputation may be an element bearing upon such damage. See Wade, supra, at 1124. Moreover, as Spahn illustrates, the published matter need not be defamatory, on its face or otherwise, and might even be laudatory and still warrant recovery. Our decision today is not to be taken to decide any constitutional questions which may be raised in 'libel per quod' actions involving publication of matters of public interest, or in libel actions where the plaintiff is not a public official. Nor do we intimate any view whether the Constitution limits state power to sanction publication of matter obtained by an intrusion into a protected area, for example, through the use of electronic listening devices.
10
Of course Spahn is not before us and we in no wise imply any view of the merits of the judgment or remedy afforded the plaintiff in that case. Our reliance is solely on Judge Keating's opinion as an aid to understanding the construction placed on the statute by the New York courts.
11
Where either result finds reasonable support in the record it is for the jury, not for this Court, to determine whether there was knowing or reckless falsehood. Cf. New York Times Co. v. Sullivan, supra, 376 U.S. 284—285, 84 S.Ct. 728—729, 11 L.Ed.2d 686.
12
Although the court qualified this instruction by requiring a finding of 'reckless or wanton disregard of the plaintiffs' rights' in absence of a finding of 'actual ill will or personal malice,' this reasonably could have been taken by the jury to relate, not to truth or falsity, but to appellant's attitude toward appellee's privacy. Therefore even this instruction would have been constitutionally infirm. Even had the Appellate Division not found prejudicial error affecting the jury's award of punitive damages, the judgment before us could not be sustained on the basis of the jury's finding on that issue.
13
The Appellate Division in Spahn v. Julian Messner, Inc., 23 A.D.2d 216, 220, 260 N.Y.S.2d 451, 454 (1965), stated that the concept of fictionalization rested on a 'distinction between an intentionally fictionalized treatment and a straight factual treatment (subject to inadvertent or superficial inaccuracies) * * *.' (Emphasis supplied.) In light of the Court of Appeals opinion, we cannot accept this as an accurate statement of New York law.
14
Appellant further contends that the threat of criminal penalty invalidates the statute. However, there have been only two cases of criminal proceedings under the statute and both resulted in dismissal. People, on Complaint of Maggio v. Charles Scribner's Sons, 205 Misc. 818, 130 N.Y.S.2d 514 (1954); People, on Complaint of Stern v. Robert R. McBride & Co., 159 Misc. 5, 288 N.Y.S. 501 (1936). There is therefore little realistic threat of prosecution. Cf. United States v. Raines, 362 U.S. 17, 20—24, 80 S.Ct. 519, 522-524, 4 L.Ed.2d 524 (1960).
1
See, e.g., In re Anastaplo, 366 U.S. 82, 97, 81 S.Ct. 978, 987, 6 L.Ed.2d 135 (dissenting opinion); Braden v. United States, 365 U.S. 431, 438, 81 S.Ct. 584, 588, 5 L.Ed.2d 653 (dissenting opinion); Barenblatt v. United States, 360 U.S. 109, 140—145, 79 S.Ct. 1081, 1100—1103, 3 L.Ed.2d 1115 (dissenting opinion).
2
Jefferson wrote that the purpose of the First Amendment is '* * * guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press: insomuch, that whatever violates either, throws down the sanctuary which covers the others, and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals.' 8 Jefferson, Works 464—465 (Ford ed. 1904).
3
See, for example, Curtis Publishing Co. v. Butts, 5 Cir., 351 F.2d 702 ($3,000,000 libel judgment, cut to $460,000 on appeal), cert. granted, 385 U.S. 811, 87 S.Ct. 30, 17 L.Ed.2d 52; Associated Press v. Walker, 393 S.W.2d 671 (Tex.Civ.App.) ($500,000 libel judgment), cert. granted, 385 U.S. 812, 87 S.Ct. 40, 17 L.Ed.2d 52; New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 ($500,000 libel judgment), reversed.
*
And see Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377; NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405.
1
The majority in the New York Appellate Division denied that the article could 'be characterized as a mere dissemination of news, nor even an effort to supply legitimate newsworthy information * * *.' They added that 'points of similarity in the book and the occurrence * * * justified neither the identification nor the commercial exploitation of plaintiffs' name and family with the play.' Justice Rabin, concurring, agreed that the subject could have been presented without liability 'albeit the presentation of such newsworthy material increases the publisher's circulation.' The New York Court of Appeals affirmed 'on the majority and concurring opinions at the Appellate Division.' The decision below seems to have ample support in New York law. See, e.g., Spahn v. Julian Messner, Inc., 18 N.Y.2d 324, 274 N.Y.S.2d 877, 221 N.E.2d 543; Binns v. Vitagraph Co., 147 App.Div. 783, 132 N.Y.S. 237, aff'd, 210 N.Y. 51, 103 N.E. 1108, L.R.A.1915C, 839; Youssoupoff v. CBS, Inc., 41 Misc.2d 42, 244 N.Y.S.2d 701, aff'd, 19 A.D.2d 865, 244 N.Y.S.2d 1; Koussevitzky v. Allen, Towne & Heath, Inc., 188 Misc. 479, 68 N.Y.S.2d 779, aff'd, 272 App.Div. 759, 69 N.Y.S.2d 432.
2
The passage from Garrison v. State of Louisiana, supra, quoted in the opinion of the Court makes clear that the only interest in protecting falsehood is to give added 'breathing space' to truth. It is undeniable that falsity may be published, especially in the political arena, with what may be considered 'good' motives—for example a good-faith belief in the absolute necessity of defeating an 'evil' candidate. But the Court does not remove state power to control such conduct, thus underlining the strong social interest in discouraging false publication.
3
Thus the State may take land for the construction of library facilities. E.g., Hayford v. Municipal Officers of City of Bangor, 102 Me. 340, 66 A. 731, 11 L.R.A.,N.S., 940; Laird v. Pittsburg, 205 Pa. 1, 54 A. 324, 61 L.R.A. 332.
4
Thus many state universities have professional schools of journalism. See 3 Department of Health, Educ. & Welfare, Education Directory—Higher Education.
5
See Riesman, Democracy and Defamation: Fair Game and Fair Comment I, 42 Col.L.Rev. 1085; Beauharnais v. People of State of Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919; State v. Klapprott, 127 N.J.L. 395, 22 A.2d 877. And despite the Court's denial that the opportunity for rebuttal is germane, it must be the circulation of falsity and the harm stemming from it which lead the Court to allow the imposition of liability at all. For the Court finds the subject of the Life article 'a matter of public interest.' And it states that '(e)xposure of the self to others in varying degrees is a concomitant of life in a civilized community.' Thus it could not permit New York to allow compensation for mere exposure unless it is holding, as I am sure it is not, that the presence of some reckless falsehood in written material strips it of all constitutional protection. The Court's suggestion that Mr. Hill might not be anxious to rebut the falsehood because it might increase his harm from exposure is equally applicable to libel actions where the opportunity to rebut may be limited by fear of reiterating the libel. And this factor emphasizes, rather than lessens, the state interest in discouraging falsehood for it increases the likelihood that falsity will continue to circulate to the detriment of some when truth should be encouraged 'for the benefit of all of us.'
6
A negligence standard has been applied in libel actions both where the underlying facts are alleged to be libelous, Layne v. Tribune Co., 108 Fla. 177, 146 So. 234, 86 A.L.R. 466, and where comment is the subject of the action, Clancy v. Daily News Corp., 202 Minn. 1, 277 N.W. 264. Similarly the press should not be constitutionally insulated from privacy actions brought by parties in the position of Mr. Hill when reasonable care has not been taken in ascertaining or communicating the underlying facts or where the publisher has not kept within the traditional boundaries of 'fair comment' with relation to underlying facts and honest opinion. See Prosser, Law of Torts § 110, at 815—816. Similar standards of reasonable investigation and presentation have long been applied in misrepresentation cases. See, e.g., International Products Co. v. Erie R. Co., 244 N.Y. 331, 155 N.E. 662, 56 A.L.R. 1377; Nash v. Minnesota Title Ins. & Trust Co., 163 Mass. 574, 40 N.E. 1039, 28 L.R.A. 753. Under such a standard the fact that the publication involved in this case was not defamatory would enter into a determination of the amount of care which would have been reasonable in the preparation of the article.
7
See, e.g., McCoid, The Care Required of Medical Practitioners, 12 Vand.L.Rev. 549; Wade, The Attorney's Liability for Negligence, 12 Vand.L.Rev. 755. It may be argued that other professions are distinguishable because practitioners may insure against liability. But this course is also open to the press. Developments in the Law, Defamation, 69 Harv.L.Rev. 875, 906.
8
This Court has never held that the press has an absolute privilege to publish falsity. There is nothing in the history of the First Amendment, or the Fourteenth, to indicate that the authors contemplated restrictions on the ability of private persons to seek legal redress for press-inflicted injury. See generally Levy, Legacy of Suppression; Duniway, The Development of Freedom of the Press in Massachusetts. The Founders rejected an attempt by Madison to add to Art. I, § 10, a guarantee of freedom of the press against state action. The main argument advanced against it was that it would unduly interfere with the proper powers of the States. See 5 Madison's Writings 378 (Hunt ed.); 1 Annals of Cong. 756.
1
Cooley, Law of Torts 29 (2d ed. 1888).
2
4 Harv.L.Rev. 193, 196 (1890). See Prosser, Law of Torts 829 et seq. (3d ed. 1964).
3
Prosser, op. cit. supra, 831, 832.
4
Wolf held that the basic values of the Fourth Amendment apply to the States via the Fourteenth, but declined to require the States to exclude illegally seized evidence in criminal trials. In this latter respect it was overruled by Mapp v. Ohio, infra.
5
Last Term, in Rosenblatt v. Baer, 383 U.S. 75, 92, 86 S.Ct. 669, 679, 15 L.Ed.2d 597 (1966), Mr. Justice Stewart, concurring, referred to the 'right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt' as reflecting '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.' He referred to the 'protection of private personality, like the protection of life itself,' as entitled to 'recognition by this Court as a basic of our constitutional system.' See also Mr. Justice Douglas, dissenting, in Poe v. Ullman, 367 U.S. 497, 521, 81 S.Ct. 1752, 1765, 6 L.Ed.2d 989 (1961).
6
Cf. Breard, supra, at 625—626, 71 S.Ct. at 923:
'* * * There is equal unanimity that opportunists, for private gain, cannot be permitted to arm themselves with an acceptable principle, such as that of a right to work, a privilege to engage in interstate commerce, or a free press, and proceed to use it as an iron standard to smooth their path by crushing the living rights of others to privacy and repose.'
7
There is no indication in the record that the court's award was intended to set aside or otherwise nullify the jury's finding under the punitive damage restrictions.
8
The majority seek to avoid the impact of the instruction's reference to the necessity of finding 'a reckless or wanton disregard of the plaintiffs' rights' by speculating that this referred only to failure to obtain consent and not to falsity. Not only is there no basis for this speculation, but the placing of this part of the instruction—immediately after the discussion of falsity—suggests that the contrary is true.
9
The court's charge and the New York cases emphasize this definition. The most important recent case is Spahn v. Messner, Inc., 18 N.Y.2d 324, 274 N.Y.S.2d 877, 221 N.E.2d 543 (1966). In Spahn, the Supreme Court of New York observed: 'While untrue statements do not necessarily transform a book into the category of fiction, the all-pervasive distortions, inaccuracies, invented dialogue, and the narration of happenings out of context, clearly indicate, at the very best, a careless disregard for the responsibility of the press and within the context of this action, an abuse of the public's limited privilege to inquire into an individual's life.' 43 Misc.2d 219, 230, 250 N.Y.S.2d 529, 541 (1964). Affirming, the Appellate Division (per Breitel, J.) observed that the book in question had been 'fictionalized, concededly, in order to make it suitable for a juvenile readership' and the publishers 'made no effort and had no intention to follow the facts concerning plaintiff's life, except in broad outline.' 23 App.Div.2d 216, 219, 260 N.Y.S.2d 451, 454 (1st Dept. 1965). The Appellate Division surveyed the earlier New York cases, including the present Hill case, and concluded they were all based on the 'distinction between an intentionally fictionalized treatment and a straight factual treatment (subject to inadvertent or superficial inaccuracies) * * *.' Id., at 220, 260 N.Y.S.2d, at 454. (Emphasis supplied.)
| 23
|
385 U.S. 421
87 S.Ct. 559
17 L.Ed.2d 486
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.C & C PLYWOOD CORP.
No. 53.
Argued Nov. 15, 1966.
Decided Jan. 9, 1967.
Rehearing Denied Feb. 20, 1967.
See 386 U.S. 939, 87 S.Ct. 951.
Daniel M. Friedman, Washington, D.C., for petitioner.
George J. Tichy, Spokane, Wash., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The respondent employer was brought before the National Labor Relations Board to answer a complaint that its inauguration of a premium pay plan during the term of a collective agreement, without prior consultation with the union representing its employees, violated the duties imposed by § 8(a)(5) and (1) of the National Labor Relations Act.1 The Board issued a cease-and-desist order, rejecting the claim that the respondent's action was authorized by the collective agreement.2 The Court of Appeals for the Ninth Circuit refused, however, to enforce the Board's order. It reasoned that a provision in the agreement between the union and the employer, which 'arguably' allowed the employer to institute the premium pay plan, divested the Board of jurisdiction to entertain the union's unfair labor practice charge. 351 F.2d 224. We granted certiorari to consider a substantial question of federal labor law. 384 U.S. 903, 86 S.Ct. 1337, 16 L.Ed.2d 357.
2
In August 1962, the Plywood, Lumber, and Saw Mill Workers Local No. 2405 was certified as the bargaining representative of the respondent's production and maintenance employees. The agreement which resulted from collective bargaining contained the following provision:
3
'Article XVII
4
'WAGES
5
'A. A classified wage scale has been agreed upon by the Employer and Union, and has been signed by the parties and thereby made a part of the written agreement. The Employer reserves the right to pay a premium rate over and above the contractual classified wage rate to reward any particular employee for some special fitness, skill, aptitude or the like. The payment of such a premium rate shall not be considered a permanent increase in the rate of that position and may, at sole option of the Employer, be reduced to the contractual rate * * *.'
6
The agreement also stipulated that wages should be 'closed' during the period it was effective3 and that neither party should be obligated to bargain collectively with respect to any matter not specifically referred to in the contract.4 Grievance machinery was established, but no ultimate arbitration of grievances or other disputes was provided.
7
Less than three weeks after this agreement was signed, the respondent posted a notice that all members of the 'glue spreader' crews would be paid $2.50 per hour if their crews met specified biweekly (and later weekly) production standards, although under the 'classified wage scale' referred to in the above quoted Art. XVII of the agreement, the members of these crews were to be paid hourly wages ranging from $2.15 to $2.29, depending upon their function within the crew.5 When the union learned of this premium pay plan through one of its members, it immediately asked for a conference with the respondent. During the meetings between the parties which followed this request, the employer indicated a willingness to discuss the terms of the plan, but refused to rescind it pending those discussions.
8
It was this refusal which prompted the union to charge the respondent with an unfair labor practice in violation of §§ 8(a)(5) and (1). The trial examiner found that the respondent had instituted the premium pay program in good-faith reliance upon the right reserved to it in the collective agreement. He, therefore, dismissed the complaint. The Board reversed. Giving consideration to the history of negotiations between the parties,6 as well as the express provisions of the collective agreement, the Board ruled the union had not ceded power to the employer unilaterally to change the wage system as it had. For while the agreement specified different hourly pay for different members of the glue spreader crews and allowed for merit increases for 'particular employee(s),' the employer had placed all the members of these crews on the same wage scale and had made it a function of the production output of the crew as a whole.
9
In refusing to enforce the Board's order, the Court of Appeals did not decide that the premium pay provision of the labor agreement had been misinterpreted by the Board. Instead, it held the Board did not have jurisdiction to find the respondent had violated § 8(a) of the Labor Act, because the 'existence * * * of an unfair labor practice (did) not turn entirely upon the provisions of the Act, but arguably upon a good-faith dispute as to the correct meaning of the provisions of the collective-bargaining agreement * * *.' 351 F.2d, at 228.
10
The respondent does not question the proposition that an employer may not unilaterally institute merit increases during the term of a collective agreement unless some provision of the contract authorizes him to do so. See National Labor Relations Board v. J. H. Allison & Co., 165 F.2d 766, 3 A.L.R.2d 990 (C.A.6th Cir.), cert. denied, 335 U.S. 814, 69 S.Ct. 31, 93 L.Ed. 369. Cf. Beacon Piece Dyeing Co., 121 N.L.R.B. 953 (1958).7 The argument is, rather, that since the contract contained a provision which might have allowed the respondent to institute the wage plan in question, the Board was powerless to determine whether that provision did authorize the respondent's action, because the question was one for a state or federal court under § 301 of the Act.8
11
In evaluating this contention, it is important first to point out that the collective bargaining agreement contained no arbitration clause.9 The contract did provide grievance procedures, but the end result of those procedures, if differences between the parties remained unresolved, was economic warfare, not 'the therapy of arbitration.' Carey v. Westinghouse Electric Corp., 375 U.S. 261, 272, 84 S.Ct. 401, 409, 11 L.Ed.2d 320. Thus, the Board's action in this case was in no way inconsistent with its previous recognition of arbitration as 'an instrument of national labor policy for composing contractual differences.' International Harvester Co., 138 N.L.R.B. 923, 926 (1962), aff'd sub nom. Ramsey v. National Labor Relations Board, 327 F.2d 784 (C.A.7th Cir.), cert. denied, 377 U.S. 1003, 84 S.Ct. 1938, 12 L.Ed.2d 1052.10
12
The respondent's argument rests primarily upon the legislative history of the 1947 amendments to the National Labor Relations Act. It is said that the rejection by Congress of a bill which would have given the Board unfair labor practice jurisdiction over all breaches of collective bargaining agreements shows that the Board is without power to decide any case involving the interpretation of a labor contract. We do not draw that inference from this legislative history.
13
When Congress determined that the Board should not have general jurisdiction over all alleged violations of collective bargaining agreements11 and that such matters should be placed within the jurisdiction of the courts,12 it was acting upon a principle which this Court had already recognized:
14
'The Railway Labor Act, like the National Labor Relations Act, does not undertake governmental regulation of wages, hours, or working conditions. Instead it seeks to provide a means by which agreement may be reached with respect to them.'
15
Terminal Railroad Ass'n v. Brotherhood of Railroad Trainmen, 318 U.S. 1, 6, 63 S.Ct. 420, 423, 87 L.Ed. 571. To have conferred upon the National Labor Relations Board generalized power to determine the rights of parties under all collective agreements would have been a step toward governmental regulation of the terms of those agreements. We view Congress' decision not to give the Board that broad power as a refusal to take this step.13
16
But in this case the Board has not construed a labor agreement to determine the extent of the contractual rights which were given the union by the employer. It has not imposed its own view of what the terms and conditions of the labor agreement should be. It has done no more than merely enforce a statutory right which Congress considered necessary to allow labor and management to get on with the process of reaching fair terms and conditions of emplonment—'to provide a means by which agreement may be reached.' The Board's interpretation went only so far as was necessary to determine that the union did not agree to give up these statutory safeguards. Thus, the Board, in necessarily construing a labor agreement to decide this unfair labor practice case, has not exceeded the jurisdiction laid out for it by Congress.
17
This conclusion is reinforced by previous judicial recognition that a contractual defense does not divest the Labor Board of jurisdiction. For example, in Mastro Plastics Corp. v. National Labor Relations Board, 350 U.S. 270, 76 S.Ct. 349, 100 L.Ed. 309, the legality of an employer's refusal to reinstate strikers was based upon the Board's construction of a 'no strike' clause in the labor agreement, which the employer contended allowed it to refuse to take back workers who had walked out in protest over its unfair labor practice. The strikers applied to the Board for reinstatement and back pay. In giving the requested relief, the Board was forced to construe the scope of the 'no strike' clause. This Court, in affirming, stressed that the whole case turned 'upon the proper interpretation of the particular contract * * *.' 350 U.S., at 279, 76 S.Ct., at 356. Thus, Mastro Plastics stands squarely against the respondent's theory as to the Board's lack of power in the present case.14
18
If the Board in a case like this had no jurisdiction to consider a collective agreement prior to an authoritative construction by the courts, labor organizations would face inordinate delays in obtaining vindication of their statutory rights. Where, as here, the parties have not provided for arbitration, the union would have to institute a court action to determine the applicability of the premium pay provision of the collective bargaining agreement.15 If it succeeded in court, the union would then have to go back to the Labor Board to begin an unfair labor practice proceeding. It is not unlikely that this would add years to the already lengthy period required to gain relief from the Board.16 Congress cannot have intended to place such obstacles in the way of the Board's effective enforcement of statutory duties. For in the labor field, as in few others, time is crucially important in obtaining relief. Amalgamated Clothing Workers of America v. Richman Bros. Co., 348 U.S. 511, 526, 75 S.Ct. 452, 460, 99 L.Ed. 600 (dissenting opinion).
19
The legislative history of the Labor Act, the precedents interparting it, and the interest of its efficient administration thus all lead to the conclusion that the Board had jurisdiction to deal with the unfair labor practice charge in this case. We hold that the Court of Appeals was in error in deciding to the contrary.
20
The remaining question, not reached by the Court of Appeals, is whether the Board was wrong in concluding that the contested provision in the collective agreement gave the respondent no unilateral right to institute its premium pay plan. In reaching this conclusion, the Board relied upon its experience with labor relations and the Act's clear emphasis upon the protection of free of collective bargaining. We cannot disapprove of the Board's approach. For the law of labor agreements cannot be based upon abstract definitions unrelated to the context in which the parties bargained and the basic regulatory scheme underlying the context. See Cox, The Legal Nature of Collective Bargaining Agreements, 57 Mich.L.Rev. 1 (1958). Nor can we say that the Board was wrong in holding that the union had not forgone its statutory right to bargain about the pay plan inaugurated by the respondent. For the disputed contract provision referred to increases for 'particular employee(s),' not groups of workers. And there was nothing in it to suggest that the carefully worked out wage differentials for various members of the glue spreader crew could be invalidated by the respondent's decision to pay all members of the crew the same wage.17
21
The judgment is accordingly reversed and the case is remanded to the Court of Appeals with directions to enforce the Board's order.
22
Reversed and remanded.
1
National Labor Relations Act, as amended, § 8(a)(5) and (1), 61 Stat. 140—141, 29 U.S.C. § 158(a)(5) & (1) (1964 ed.).
2
The NLRB's order directed respondent to bargain with the union upon the latter's request and similarly to rescind any payment plan which it had unilaterally instituted.
3
'Article XVII
'B. It is mutually agreed that the attached classified wage scale shall be effective upon the signing of this Working Agreement with wages closed for the term of that agreement. * * *'
4
'Article XIX
'WAIVER OF DUTY TO BARGAIN
'The parties acknowledge that during negotiations which resulted in this Agreement, each had the unlimited right and opportunity to make demands and proposals with respect to any subject or matter of collective bargaining, and that the understanding and agreements arrived at by the parties after the exercise of that right and opportunity are set forth in this Agreement. Therefore, the Employer and Union, for the life of this Agreement, each voluntarily and unqualifiedly waives the right and each agree that the other shall not be obligated to bargain collectively with respect to any subject matter not specifically referred to or covered in this Agreement, even though such subjects or matters may not have been within the knowledge or contemplation of either or both of the parties at the time they negotiated or signed this Agreement.'
5
Workers in the three job classifications composing the glue spreader crews were to receive the following wages:
6
The trial examiner found that 'quite some time prior' to the execution of the contract, the respondent's general manager had proposed an 'incentive bonus system' within the department where the glue spreader crews worked. The union's representtive, however, declared that the union would not agree to such a plan. Sometime later in the negotiations, the respondent again made reference to the fact that it was 'giving thought' to incentive pay, but the trial examiner was unable to conclude that this reference was related to the premium pay provision that eventually appeared in the contract.
7
For illustrations of the limited discretion which the Labor Act allows employers concerning the wages of employees represented by certified unions, see National Labor Relations Board v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230; National Labor Relations Board v. Crompton-Highland Mills, Inc., 337 U.S. 217, 69 S.Ct. 960, 93 L.Ed. 1320.
8
§ 301, Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S.C. § 185.
9
The Court of Appeals in this case relied upon its previous decision in Square D Co. v. National Labor Relations Board, 332 F.2d 360. But Square D involved a collective agreement that provided for arbitration. See Note, Use of an Arbitration Clause, 41 Ind.L.J. 455, 469 (1966).
10
See also Cloverleaf Div. of Adams Dairy Co., 147 N.L.R.B. 1410, 1416 (1964), where the Board made the following observation to justify, in part, its decision to construe a labor contract in the course of an unfair labor practice proceeding:
'* * * it affirmatively appears that neither party has even so much as sought to invoke arbitration. Nor is this a case involving an alleged unfair labor practice, the existence of which turns primarily on an interpretation of specific contractual provisions, unquestionably encompassed by the contract's arbitration provisions, and coming to us in a context that makes it reasonably probable that arbitration settlement of the contract dispute would also put at rest the unfair labor practice controversy in a manner sufficient to effectuate the policies of the Act.' (Footnotes omitted.)
Cf. Spielberg Mfg. Co., 112 N.L.R.B. 1080 (1955).
11
An earlier version of the Senate bill contained the following provision:
'Sec. 8. (a) It shall be an unfair labor practice for an employer—
'(6) to violate the terms of a collective-bargaining agreement or the terms of an agreement to submit a labor dispute to arbitration * * *.'
Section 8(b)(5) of the same bill imposed a similar limitation upon labor organizations. S. 1126, 80th Cong., 1st Sess., 1 Legis. History of LMRA 109—111, 114. Neither of these provisions was in the bill enacted into law.
12
§ 301, Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S.C. § 185.
13
Congress was also concerned with the possibility of conflicting decisions that would result from placing all questions of contract interpretation before both the Board and the courts. See 93 Cong.Rec. 4033, 2 Legis. History of LMRA 1043 (remarks of Senator Murray); 93 Cong.Rec. 6443, 2 Legis. History of LMRA 1539. But such a possibility does not arise in a case like the present one, since courts have no jurisdiction to enforce the union's statutory rights under §§ 8(a)(5) and (1).
14
In Mastro Plastics Corp. v. National Labor Relations Board, 350 U.S. 270, 76 S.Ct. 349, 100 L.Ed. 309, the employer was charged with a violation of §§ 8(a)(1), (2) and (3), and not with a failure to bargain. But nothing is suggested that would justify distinguishing the case on that ground.
15
The precise nature of the union's case in court is not readily apparent. If damages for breach of contract were sought, the union would have difficulty in establishing the amount of injury caused by respondent's action. For the real injury in this case is to the union's status as bargaining representative, and it would be difficult to translate such damage into dollars and cents. If an injunction were sought to vindicate the union's contractual rights, the problem of the applicability of the Norris-LaGuardia Act would have to be faced. A federal injunction issuing from a court with § 301 jurisdiction might be barred by § 7 of that Act. See International Union of Electrical, Radio and Machine Workers (AFL—CIO) v. General Electric Co., 341 F.2d 571 (C.A.2d Cir.); Local Union No. 861 of International Brotherhood of Electrical Workers (AFL—CIO) v. Stone & Webster Engineering Corp., 163 F.Supp. 894 (D.C.W.D.La.). Cf. Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440; Publihers' Ass'n of New York City of New York Mailers' Union No. Six, 317 F.2d 624 (C.A.2d Cir.), cert. granted, 375 U.S. 901, 84 S.Ct. 192, 11 L.Ed.2d 142, judgment vacated in part for dismissal as moot, 376 U.S. 775, 84 S.Ct. 1132, 12 L.Ed.2d 82. Whether a state injunction might be similarly barred in suits governed by federal labor law, Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 is an open question. See Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 514, n. 8, 82 S.Ct. 519, 7 L.Ed.2d 483. Thus, it may be that the only remedy in court which would be available to the union would be a suit for a declaratory judgment, assuming such a suit in these circumstances would be maintainable under state or federal law.
16
The instant charge, for example, was filed July 31, 1963.
17
The respondent points to two other labor contracts in its area to support its version of the provision here in question, but those agreements, even if relevant, fall short of substantiating its position. In one, a premium was paid to members of two-man crews who accomplished prescribed production goals. But the respondent does not show that this premium leveled a wage differential set up by the collective bargaining agreement. In the other, a lumber company's head sawyer received an hourly bonus if the plant exceeded a certain monthly output.
| 67
|
385 U.S. 432
87 S.Ct. 565
17 L.Ed.2d 495
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.ACME INDUSTRIAL CO.
No. 52.
Argued Nov. 14, 1966.
Decided Jan. 9, 1967.
Norton J. Come, Washington, D.C., for petitioner.
E. Allan Kovar, Chicago, Ill., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
In NLRB v. C & C Plywood Corp., 385 U.S. 421, 87 S.Ct. 559, 17 L.Ed.2d 486, decided today, we dealt with one aspect of an employer's duty to bargain during the term of a collective bargaining agreement. In this case we deal with another—involving the obligation to furnish information that allows a union to decide whether to process a grievance.
2
In April 1963, at the conclusion of a strike, the respondent entered into a collective bargaining agreement with the union which was the certified representative of its employees. The agreement contained two sections relevant to this case. Article I, § 3, provided, 'It is the Company's general policy not to subcontract work which is normally performed by employees in the bargaining unit where this will cause the layoff of employees or prevent the recall of employees who would normally perform this work * * *.' In Art. VI, § 10, the respondent agreed that '(i)n the event the equipment of the plant * * * is hereafter moved to another location of the Company, employees working in the plant * * * who are subject to reduction in classification or layoff as a result thereof may transfer to the new location with full rights and seniority, unless there is then in existence at the new location a collective bargaining agreement covering * * * employees at such location.' A grievance procedure culminating in compulsory and binding arbitration was also incorporated into the collective agreement.
3
The present controversy began in January 1964, when the union discovered that certain machinery was being removed from the respondent's plan. When asked by union representatives about this movement, the respondent's foremen replied that there had been no violation of the collective agreement and that the company, therefore, was not obliged to answer any questions regarding the machinery. After this rebuff, the union filed 11 grievances charging the respondent with violations of the above quoted clauses of the collective agreement. The president of the union then wrote a letter to the respondent, requesting 'the following information at the earliest possible date:
4
'1. The approximate dates when each piece of equipment was moved out of the plant.
5
'2. The place to which each piece of equipment was moved and whether such place is a facility which is operated or controlled by the Company.
6
'3. The number of machines or equipment that was moved out of the plant.
7
'4. What was the reason or purpose of moving the equipment out of the plant.
8
'5. Is this equipment used for production elsewhere.'
9
The company replied by letter that it had no duty to furnish this information since no layoffs or reductions in job classification had occurred within five days (the time limitation set by the contract for filing grievances) prior to the union's formal request for information.
10
This refusal prompted the union to file unfair labor practice charges with the National Labor Relations Board. A complaint was issued, and the Board, overruling its trial examiner, held the respondent had violated § 8(a)(5) of the Act1 by refusing to bargain in good faith. Accordingly, it issued a cease-and-desist order. The Board found that the information requested was 'necessary in order to enable the Union to evaluate intelligently the grievances filed' and pointed out that the agreement contained no 'clause by which the Union waives its statutory right to such information.'
11
The Court of Appeals for the Seventh Circuit refused to enforce the Board's order. 351 F.2d 258. It did not question the relevance of the information nor the finding that the union had not expressly waived its right to the information. The Court ruled, however, that the existence of a provision for binding arbitration of differences concerning the meaning and application of the agreement foreclosed the Board from exercising its statutory power. The court cited United Steelworkers v. Warrior & Gulf Navig. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409, the United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403, as articulating a national labor policy favoring arbitration and requiring the Board's deference to an arbitrator when construction and application of a labor agreement are in issue. We granted certiorari to consider the substantial question of federal labor law thus presented. 383 U.S. 905, 86 S.Ct. 893, 15 L.Ed.2d 662.
12
There can be no question of the general obligation of an employer to provide information that is needed by the bargaining representative for the proper performance of its duties. National Labor Relations Board v. Truitt Mfg. Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027. Similarly, the duty to bargain unquestionably extends beyond the period of contract negotiations and applies to labor-management relations during the term of an agreement. National Labor Relations Board v. C & C Plywood Corp., 385 U.S. 421, 87 S.Ct. 559, 17 L.Ed.2d 486; National Labor Relations Board v. F. W. Woolworth Co., 352 U.S. 938, 77 S.Ct. 261, 1 L.Ed.2d 235. The only real issue in this case, therefore, is whether the Board must await an arbitrator's determination of the relevancy of the requested information before it can enforce the union's statutory rights under § 8(a)(5).
13
The two cases upon which the court below relied, and the third of the Steelworkers trilogy, United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424, do not throw must light on the problem. For those cases dealt with the relationship of courts to arbitrators when an arbitration award is under review or when the employer's agreement to arbitrate is in question. The weighing of the arbitrator's greater institutional competency, which was so vital to those decisions, must be evaluated in that context. 363 U.S., at 567, 581—582, 596—597, 80 S.Ct. 1352, 1360—1361. The relationship of the Board to the arbitration process is of a quite different order. See Cary v. Westinghouse Corp., 375 U.S. 261, 269—272, 84 S.Ct. 401, 407—409, 11 L.Ed.2d 320. Moreover, in assessing the Board's power to deal with unfair labor practices, provisions of the Labor Act which do not apply to the power of the courts under § 301,2 must be considered. Section 8(a)(5) proscribes failure to bargain collectively in only the most general terms, but § 8(d) amplifies it by defining 'to bargain collectively' as including 'the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to * * * any question arising (under an agreement) * * *.'3 And § 10(a)4 provides: 'The Board is empowered * * * to prevent any person from engaging in any unfair labor practice * * *. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise * * *.' Thus, to view the Steelworkers decisions as automatically requiring the Board in this case to defer to the primary determination of an arbitrator5 is to overlook important distinctions between those cases and this one.
14
But even if the policy of the Steelworkers Cases were thought to apply with the same vigor to the Board as to the courts, that policy would not require the Board to abstain here. For when it ordered the employer to furnish the requested information to the union, the Board was not making a binding construction of the labor contract. It was only acting upon the probability that the desired information was relevant, and that it would be of use to the union in carrying out its statutory duties and responsibilities. This discovery-type standard decided nothing about the merits of the union's contractual claims.6 When the respondent furnishes the requested information, it may appear that no subcontracting or work transfer has occurred, and, accordingly, that the grievances filed are without merit. On the other hand, even if it appears that such activities have taken place, an arbitrator might uphold the respondent's contention that no breach of the agreement occurred because no employees were laid off or reduced in grade within five days prior to the filing of any grievance. Such conclusions would clearly not be precluded by the Board's thresh-old determination concerning the potential relevance of the requested information. Thus, the assertion of jurisdiction by the Board in this case in no way threatens the power which the parties have given the arbitrator to make binding interpretations of the labor agreement.7
15
Far from intruding upon the preserve of the arbitrator, the Board's action was in aid of the arbitral process. Arbitration can function properly only if the grievance procedures leading to it can sift out unmeritorious claims. For if all claims originally initiated as grievances had to be processed through to arbitration, the system would be woefully overburdened. Yet, that is precisely what the respondent's restrictive view would require. It would force the union to take a grievance all the way through to arbitration without providing the opportunity to evaluate the merits of the claim.8 The expense of arbitration might be placed upon the union only for it to learn that the machines had been relegated to the junk heap. Nothing in federal labor law requires such a result.
16
We hold that the Board's order in this case was consistent both with the express terms of the Labor Act and with the national labor policy favoring arbitration which our decisions have discerned as underlying that law. Accordingly, we reverse the judgment and remand the case to the Court of Appeals with directions to enforce the Board's order.
17
Reversed and remanded.
1
National Labor Relations Act, as amended, 61 Stat. 141, 29 U.S.C.A. § 158(a)(5).
2
Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S.C. § 185.
3
Cf. United Steelworkers of America v. Warrior & Gulf Co., 363 U.S. 574, 581, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409; 'The grievance procedure is, in other words, a part of the continuous collective bargaining process.'
4
61 Stat. 146, 29 U.S.C. § 160(a).
5
See Sinclair Refining Co. v. N.L.R.B., 306 F.2d 569, 570 (C.A.5th Cir.).
6
Cf. 4 Moore, Federal Practice 26.16(1), 1175—1176 (2d ed.):
'(I)t must be borne in mind that the standard for determining relevancy at a discovery examination is not as well defined as at the trial. * * * Since the matters in dispute between the parties are not as well determined at discovery examinations as at the trial, courts of necessity must follow a more liberal standard as to relevancy.'
Id., at 1181:
'Examination as to relevant matters should be allowed whether or not the theory of the complaint is sound or the facts, if proved, would support the relief sought.'
7
This case, therefore, differs from N.L.R.B. v. C & C Plywood Corp., 385 U.S. 421, 87 S.Ct. 559, 17 L.Ed.2d 486, where the Board's determination that the employer did not have a contractual right to institute a premium pay plan was a determination on the merits. See C & C Plywood, at 426 of 385 U.S., at 563 of 87 S.Ct. and n. 10.
8
See Fafnir Bearing Co. v. N.L.R.B., 2 Cir., 362 F.2d 716, 721:
'By preventing the Union from conducting these studies (for an intelligent appraisal of its right to grieve), the Company was, in errence, requiring it to play a game of blind man's bluff.'
| 67
|
385 U.S. 475
87 S.Ct. 574
17 L.Ed.2d 526
UNITED STATES, Appellant,v.Lee Levi LAUB et al.
No. 176.
Argued Nov. 16, 1966.
Decided Jan. 10, 1967.
Nathan Lewin, Washington, D.C., for appellant.
Leonard B. Boudin, Washington, D.C., for appellees.
Mr. Justice FORTAS delivered the opinion of the Court.
1
Appellees were indicted under 18 U.S.C. § 371 for conspiring to violate § 215(b) of the Immigration and Nationality Act of 1952, 66 Stat. 190, 8 U.S.C. s 1185(b). The alleged conspiracy consisted of recruiting and arranging the travel to Cuba of 58 American citizens whose passports, although otherwise valid, were not specifically validated for travel to that country.1
2
The District Court granted appellees' motion to dismiss the indictment. Chief Judge Zavatt filed an exhaustive opinion (253 F.Supp. 433 (D.C.E.D.N.Y.)). Notice of direct appeal to this Court was filed and we noted probable jurisdiction under 18 U.S.C. § 3731 because the dismissal was 'based upon the * * * construction of the statute upon which the indictment * * * is founded.' We affirm. Our decision rests entirely upon our construction of the relevant statutes and regulations.
3
Two statutes are relevant to this case. The first is the Passport Act of 1926, 44 Stat. 887, 22 U.S.C. § 211a. This is the general statute authorizing the Secretary of State to 'grant and issue passports.' It is not a criminal statute. The second statute is § 215(b) of the Immigration and Nationality Act of 1952, supra, under which the present indictments were brought. Section 215(b) was enacted on June 27, 1952. It is a re-enactment of the Act of May 22, 1918 (40 Stat. 559), and the Act of June 21, 1941 (55 Stat. 252). It provides that:
4
'When the United States is at war or during the existence of any national emergency proclaimed by the President * * * and (when) the President shall find that the interests of the United States require that restrictions and prohibitions * * * (b) * * * be imposed upon the departure of persons from and their entry into the United States, and shall make public proclamation thereof, it shall * * * be unlawful for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid passport.' (Italics added.)
5
Wilful violation is subjected to a fine of not more than $5,000 or imprisonment for five years, or both.
6
On January 17, 1953, President Truman made the finding and proclamation required by § 215(b).2 As a consequence, a valid passport has been required for departure and entry of United States nationals from and into the United States and its territories, except as to areas specifically exempted by regulations. The proclamation adopted the regulations which the Secretary of State had promulgated under the predecessors of § 215(b) exempting from the passport requirement departure to or entry from 'any country or territory in North, Central, or South America (including Cuba).' 22 CFR § 53.3(b) (1958 rev.). On January 3, 1961, the United States broke diplomatic relations with Cuba. On January 16, 1961, the Deputy Under Secretary of State for Administration issued the 'Excluding Cuba' amendment (22 CFR § 53.3 (1965 rev.), 26 Fed.Reg. 482). That amendment added the two words 'excluding Cuba' to the phrase quoted above. Cuba was thereby included in the general requirement of a passport for departure from and entry into the United States.
7
On the same day, the Department of State also issued Public Notice 179, which stated that 'Hereafter United States passports shall not be valid for travel to or in Cuba unless specifically endorsed for such travel under the authority of the Secretary of State. * * *' 26 Fed.Reg. 492. It simultaneously issued a press release announcing that:
8
'* * * in view of the U.S. Government's inability, following the break in diplomatic relations between the United States and Cuba, to extend normal protective services to Americans visiting Cuba, U.S. citizens desiring to go to Cuba must until further notice obtain passports specifically endorsed by the Department of State for such travel. All outstanding passports * * * are being declared invalid for travel to Cuba unless specifically endorsed for such travel. * * * These actions have been taken in conformity with the Department's normal practice of limiting travel to those countries with which the United States does not maintain diplomatic relations.'3 (Italics added.)
9
In Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965), the petitioner sought a declaratory judgment that the Secretary of State does not have statutory authorization to impose area restrictions on travel; that if the statute were construed to authorize the Secretary to do so, it would be an impermissible delegation of power; and that, in any event, the exercise of the power to restrict travel denied to petitioner his rights under the First and Fifth Amendments. This Court rejected petitioner's claims and sustained the Secretary's statutory power to refuse to validate passports for travel to Cuba. It found authority for area restrictions in the general passport authority vested in the Secretary of State by the 1926 Act, relying upon the successive 'imposition of area restrictions during both times of war and periods of peace' before and after the enactment of the Act of 1926. 381 U.S., at 8—9, 85 S.Ct., at 1276—1277. The Court specifically declined the Solicitor General's invitation to rule also that 'travel in violation of an area restriction imposed on an otherwise valid passport is unlawful under the 1952 Act.' Id., at 12, 85 S.Ct. at 1278.4
10
We now confront that question. Section 215(b) is a criminal statute. It must therefore be narrowly construed. United States v. Wiltberger, 5 Wheat. 76, 95—96, 105, 5 L.Ed. 37 (1820) (Marshall, C.J.). Appellees urge that § 215(b) must be read as a 'border control' statute, requiring only that a citizen may not 'depart from or enter' the United States without 'a valid passport.' On this basis, they argue, appellees did not conspire to violate the statute since all of those who went to Cuba departed and re-entered the United States bearing valid passports. Only if, as the Government urges, § 215(b) can be given a broader meaning so as to encompass specific destination control—only if it is read as requiring the traveler to bear 'a passport endorsed as valid for travel to the country for which he departs or from which he returns'—would appellees be guilty of any violation.
11
We begin with the fact, conceded by the Government, that 'Section 215(b) does not, in so many words, prohibit violations of area restrictions; it speaks, as the district court noted in the Laub case * * * in the language of 'border control statutes regulating departure from and entry into the United States." Brief for the United States, p. 11. Nevertheless, the Government requests us to sustain this criminal prosecution and reverse the District Court on the ground that somehow, 'the text is broad enough to encompass departures for geographically restricted areas * * *.' Ibid. We conclude, however, that in this criminal proceeding the statute cannot be applied in this fashion. Even if ingenuity were able to find concealed in the text a basis for this cirminal prosecution, factors which we must take into account, drawn from the history of the statute, would preclude such a reading.
12
Preliminarily, it is essential to recall the nature and function of the passport. A passport is a document identifying a citizen, in effect requesting foreign powers to allow the bearer to enter and to pass freely and safely, recognizing the right of the bearer to the protection and good offices of American diplomatic and consular officers. See Urtetiqui v. D'Arcy, 9 Pet. 692, 699, 9 L.Ed. 276 (1835); Kent v. Dulles, 357 U.S. 116, 120 121, 78 S.Ct. 1113, 1115—1116, 2 L.Ed.2d 1204 (1958); 3 Hackworth, Digest of International Law 435 (1942). 8 U.S.C. § 1101(a)(30).
13
As this Court has observed, 'The right to travel is a part of the 'liberty' of which the citizen cannot be deprived without due process of law * * *.' Kent v. Dulles, supra, 357 U.S., at 125, 78 S.Ct., at 1118. See Aptheker v. Secretary of State, 378 U.S. 500, 517, 84 S.Ct. 1659, 1669, 12 L.Ed.2d 992 (1964); Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965).
14
Under § 215(b) and its predecessor statutes, Congress authorized the requirement that a citizen possess a passport for departure from and entry into the United States,5 and there is no doubt that with the adoption and promulgation of the 'Excluding Cuba' regulation, a passport was required for departure from this country for Cuba and for entry into this country from Cuba. Departure for Cuba or entry from Cuba without a passport would be a violation of § 215(b), exposing the traveler to the criminal penalties provided in that section. But it does not follow that travel to Cuba with a passport which is not specifically validated for that country is a criminal offense. Violation of the 'area restriction'—'invalidating' passports for travel in or to Cuba and requiring specific validation of passports if they are to be valid for travel to or in Cuba—is quite a different matter from violation of the requirement of § 215(b) and the regulations thereunder that a citizen bear a 'valid passport' for departure from or entry into the United States.
15
The area restriction applicable to Cuba was promulgated by a 'Public Notice' and a press release, supra, pp. 478—479, neither of which referred to § 215(b) or to criminal sanctions. On the contrary, the only reference to the statutory base of the announcement appears in the 'Public Notice,' and this is a reference to the nonpenal 1926 Act and the Executive Order adopted thereunder in 1938.6 These merely authorize the Secretary of State to impose area restrictions incidental to his general powers with respect to passports. Zemel v. Rusk, supra. They do not purport to make travel to the designated area unlawful.
16
The press release issued by the Department of State at the time expressly explained the action as being 'in view of the U.S. Government's inability * * * to extend normal protective services to Americans visiting Cuba.' It explained that the action was taken in conformity with the Department's 'normal practice' of limiting travel to countries with which we do not have diplomatic relations.7 That 'normal practice,' as will be discussed, has not included criminal sanctions. In short, the relevant State Department promulgations are not only devoid of a suggestion that travel to Cuba without a specially validated passport is prohibited, or that such travel would be criminal conduct, but they also contain positive suggestions that the purpose and effect of the restriction were merely to make clear that the passport was not to be regarded by the traveler in Cuba as a voucher on the protective services normally afforded by the State Department.
17
This was in keeping with the unbroken tenor of State Department pronouncements on area restrictions. Prior to enactment of § 215(b) on June 27, 1952, area travel restrictions were proclaimed on five occasions while the 1918 and 1941 Acts were in effect (1918—1921 and 1941—1953).8 These were the predecessors of § 215(b), and they similarly specified criminal sanctions.9 But in each of the five instances, the area restrictions were devoid of any suggestion that they were related to the 1918 or 1941 Acts or were intended to invoke criminal penalties if they were disregarded. They were cast exclusively in civil terms, relating to the State Department's 'safe passage' functions.10 In two of these instances, the Department of State specifically emphasized the civil, nonprohibitory nature of the restrictions.11 For example, in 1952 the State Department issued area restrictions with respect to Eastern European countries, China, and the Soviet Union. The Department's press release emphasized that the 'invalidation' of passports for travel to those areas 'in no way forbids American travel to those areas.'12
18
Since enactment of § 215(b), the State Department has announced area travel restrictions upon three occasions in addition to Cuba.13 Again, although § 215(b) was fully operative, none of these declarations purported to be issued under that section or referred to criminal sanctions. Each of them, like the Cuba regulation, sounded in terms of withdrawal of the safe-passage services of the State Department.14
19
In 1957, the Senate Foreign Relations Committee asked the Department: 'What does it mean when a passport is stamped 'not valid to go to country X'?' After three months the Department sent its official reply. It stated that this stamping of a passport 'means that if the bearer enters country X he cannot be assured of the protection of the United States. * * * (but it) does not necessarily mean that if the bearer travels to country X he will be violating the criminal law.'15 (Italics added.) Similarly, in hearings before another Senate Committee, a Department official explained that when a passport is marked 'invalid' for travel to stated countries, this means that 'this Government is not sponsoring the entry of the individual into those countries and does not give him permission to go in there under the protection of this Government.'16
20
Although Department records show that approximately 600 persons have violated area travel restrictions since the enactment of § 215(b),17 the present prosecutions are the only attempts to convict persons for alleged area transgressions.18
21
Until these indictments, in fact, the State Department had consistently taken the position that there was no statute which imposed or authorized such prohibition. In the 1957 hearings, referred to above, the Acting Director of the Bureau of Security and Consular Affairs, Department of State, testified that he knew of no statute providing a penalty for going to a country covered by an area restriction without a passport (as distinguished from departing or entering the United States).19 The Government, as well as others, has repeatedly called to the attention of the Congress the need for consideration of legislation specifically making it a criminal offense for any citizen to travel to a country as to which an area restriction is in effect,20 but no such legislation was enacted.21
22
In view of this overwhelming evidence that § 215(b) does not authorize area restrictions, we agree with the District Court that the indictment herein does not allege a crime. If there is a gap in the law, the right and the duty, if any, to fill it do not devolve upon the courts. The area travel restriction, requiring special validation of passports for travel to Cuba, was a valid civil regulation under the 1926 Act. Zemel v. Rusk, supra. But it was not and was not intended or represented to be an exercise of authority under § 215(b), which provides the basis of the criminal charge in this case.
23
Crimes are not to be created by inference. They may not be constructed nunc pro tunc. Ordinarily, citizens may not be punished for actions undertaken in good faith reliance upon authoritative assurance that punishment will not attach. As this Court said in Raley v. State of Ohio, 360 U.S. 423, 438, 79 S.Ct. 1257, 1266, 3 L.Ed.2d 1344, we may not convict 'a citizen for exercising a privilege which the State clearly had told him was available to him.' As Raley emphasized, criminal sanctions are not supportable if they are to be imposed under 'vague and undefined' commands (citing Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939)); or if they are 'inexplicably contradictory' (citing United States v. Cardiff, 344 U.S. 174, 73 S.Ct. 189, 97 L.Ed. 200 (1952)); and certainly not if the Government's conduct constitutes 'active misleading' (citing Johnson v. United States, 318 U.S. 189, 197, 63 S.Ct. 549, 553, 87 L.Ed. 704 (1943)).
24
In view of our decision that appellees were charged with conspiracy to violate a nonexistent criminal prohibition, we need not consider other issues which the case presents.
25
Accordingly, the judgment of the District Court is affirmed.
26
Affirmed.
APPENDIX TO OPINION OF THE COURT.
27
The following three Department of State statements in connection with area restrictions are referred to in the foregoing opinion:
28
(1) State Department Press Release No. 24, Jan. 16, 1961, 44 Dept. State Bull. 178:
29
'The Department of State announced on January 16 that in view of the U.S. Government's inability, following the break in diplomatic relations between the United States and Cuba, to extend normal protective services to Americans visiting Cuba, U.S. citizens desiring to go to Cuba must until further notice obtain passports specifically endorsed by the Department of State for such travel. All outstanding passports, except those of U.S. citizens remaining in Cuba, are being declared invalid for travel to Cuba unless specifically endorsed for such travel.
30
'The Department contemplates that exceptions to these regulations will be granted to persons whose travel may be regarded as being in the best interests of the United States, such as newsmen or businessmen with previously established business interest.
31
'Permanent resident aliens cannot travel to Cuba unless special permission is obtained for this purpose through the U.S. Immigration and Naturalization Service.
32
'Federal regulations are being amended to put these requirements into effect.
33
'These actions have been taken in conformity with the Department's normal practice of limiting travel to those countries with which the United States does not maintain diplomatic relations.'
34
(2) State Department Press Release No. 341, May 1, 1952, 26 Dept. State Bull. 736:
35
'The Department of State announced on May 1 that it was taking additional steps to warn American citizens of the risks of travel in Iron Curtain countries by stamping all passports not valid for travel in those countries unless specifically endorsed by the Department of State for such travel.
36
'In making this announcement, the Department emphasized that this procedure in no way forbids American travel to those areas. It contemplates that Americans citizens will consult the Department or the consulates abroad to ascertain the dangers of traveling in countries where acceptable standards of protection do not prevail and that, if no objection is perceived, the travel may be authorized.
37
'All new passports will be stamped as follows: THIS PASSPORT IS NOT VALID FOR TRAVEL TO ALBANIA, BULGARIA, CHINA, CZECHOSLOVAKIA, HUNGARY, POLAND, RUMANIA OR THE UNION OF SOVIET SOCIALIST REPUBLICS UNLESS SPECIFICALLY ENDORSED UNDER AUTHORITY OF THE DEPARTMENT OF STATE AS BEING VALID FOR SUCH TRAVEL.
38
'All outstanding passports, which are equally subject to the restriction, will be so endorsed as occasion permits.'
39
'Freedom to Travel,' a 1958 Report of the Special Committee To Study Passport Procedures of the Association of the Bar of the City of New York, characterized this as 'an honest admission of the lack of statutory power to enforce an area restriction of this nature.' At 70. The Department gave a practical construction of this area restriction in 1954 when it informed two newsmen desiring to travel to Bulgaria that they could go there without a passport and 'use, as a travel document * * * an affidavit in lieu of a passport,' and that, if Bulgaria would permit them entry, 'the Department * * * (would hold) no objection.' Hearings on Department of State Passport Policies before the Senate Committee on Foreign Relations, 85th Cong., 1st Sess. (1957), p. 65.
40
(3) 3 Hackworth, Digest of International Law 530 (1942) (1919 Germany restriction):
41
'The Department is not now issuing or authorizing issuance or amendment of passports for Germany. However, the Department interposes no objection to the entry into Germany of Americans who have important and urgent business to transact there. In view of the present situation, such persons should understand that they go upon their own responsibility and at their own risk. They cannot be guaranteed the same protection which they might expect under normal conditions.'
1
In response to a motion for a bill of particulars, the Government alleged that the individuals concerned possessed 'unexpired and unrevoked United States passports which * * * had not been specifically validated by the Secretary of State for travel to Cuba.'
2
29 Proclamation No. 3004, 67 Stat. C31, 3 CFR 180 (1949 1953 Comp.). The current 'National Emergency' was proclaimed by President Truman on Dec. 16, 1950. Proclamation No. 2914, 64 Stat. A454, 3 CFR 99 (1949—1953 Comp.).
3
State Department Press Release No. 24, Jan. 16, 1961, 44 Dept. State Bull. 178. The full text is in the Appendix to this opinion.
4
But cf. United States v. Healy, 376 U.S. 75, 83, n. 7, 84 S.Ct. 553, 558, 11 L.Ed.2d 527 (1964).
5
It is the exception rather than the rule in our history to require that citizens engaged in foreign travel should have a passport. Kent v. Dulles, 357 U.S. 116, 121—123, 78 S.Ct. 1113, 1115—1117, 2 L.Ed.2d 1204 (1958); Jaffe, The Right To Travel: The Passport Problem, 35 Foreign Affairs 17 (1956).
6
The 'Public Notice' recites that 'pursuant to the authority vested in me by Sections 124 and 126 of Executive Order No. 7856, issued on March 31, 1938 (3 F.R. 681, 687, 22 CFR 51.75 and 51.77) under authority of * * * the Act of * * * July 3, 1926 * * * all United States passports are hereby declared to be invalid for travel to or in Cuba * * *.' Department of State, Public Notice No. 179, Jan. 16, 1961, 26 Fed.Reg. 492.
7
State Department Press Release No. 24, Jan. 16, 1961, 44 Dept. State Bull. 178. The full text is in the Appendix to this opinion.
8
The 1918 Act was in effect by Presidential proclamation only between August 8, 1918, and March 3, 1921. (40 Stat. 1829 and 41 Stat. 1359.) The 1941 Act was in effect by successive Presidential proclamations and congressional extensions from November 14, 1941 (55 Stat. 1696), to April 1, 1953 (66 Stat. 57, 96, 137, 333), by which date § 215(b) was already in effect by Presidential Proclamation No. 3004, Jan. 17, 1953, 67 Stat. C31, 3 CFR 180 (1949—1953 Comp.).
9
See, p. 477, supra.
10
1. Restriction in 1919 as to Germany (3 Hackworth, Digest of International Law 530 (1942). 2. Restriction in 1950 as to Bulgaria and Hungary (22 Dept. State Bull. 399). 3. Restriction in 1951 as to Czechoslovakia (24 Dept. State Bull. 932). 4. Restriction in 1951 as to Hungary (26 Dept. State Bull. 7). 5. Restriction in 1952 as to East European countries, China, and the Soviet Union (26 Dept. State Bull. 736).
11
These were the 1919 Germany restriction and the 1952 East Europe, Soviet Union, and China restriction. See n. 10, supra. The texts of the Department's announcements of these restrictions are in the Appendix to this opinion.
12
See the Appendix to this opinion.
13
,1. Restriction in 1955 as to Albania, Bulgaria, China, North Korea, and North Viet Nam (33 Dept. State Bull. 777). 2. Restriction in 1956 as to Hungary (34 Dept. State Bull. 248). 3. Restriction in 1956 as to Egypt, Israel, Jordan, and Syria (35 Dept. State Bull. 756, 21 Fed.Reg. 8577).
14
In the 1956 area restriction relating to Egypt, Israel, Jordan, and Syria, supra, n. 13, as well as the Cuba restriction, the Department expressly recited the 1926 Act as its basis. It did not mention § 215(b). 21 Fed.Reg. 8577.
15
Hearings before the Senate Committee on Foreign Relations, on Department of State Passport Policies, 85th Cong., 1st Sess. (1957), p. 59.
16
Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, on the Right To Travel, 85th Cong., 1st Sess., part 2 (1957), p. 86; see also id., at 62.
17
The Government conceded this to the court below. See also the Department's testimony to the same effect in Hearings before the Subcommittee To Investigate the Administration of the Internal Security Act and Other Internal Security Laws, Senate Committee on the Judiciary, on S. 3243, 89th Cong., 2d Sess. (1966), p. 43. The Chief of the Security Branch of the Legal Division of the State Department testified to the court below that he was unaware of any prosecution for violation of area restrictions under the predecessors of § 215(b).
18
See also Travis v. United States, 385 U.S. 491, 87 S.Ct. 583, 17 L.Ed.2d 536; Worthy v. United States, 328 F.2d 386 (C.A.5th Cir., 1964).
19
Hearings, n. 16, supra, at 91—95.
20
See, e.g., President Eisenhower's request for legislation, H.R.Doc. No. 417, 85th Cong., 2d Sess. (1958). The Administration's bill was S. 4110, H.R. 13318. In 1957, the Commission on Government Security, specifically established by Congress to study travel and passport legislation among other things (Public Law 304, 84th Cong., 1st Sess., 69 Stat. 595 (1955)), recommended that 'Title 8, U.S.C.A., section 1185(b), should be amended to make it unlawful for any citizen of the United States to travel to any country in which his passport is declared to be invalid.' Report (S.Doc. 64, 84th Cong.), at 475. The next year, the Special Committee To Study Passport Procedures of the Association of the Bar of the City of New York published a report entitled 'Freedom To Travel.' One of the authors of this Report was the Honorable Adrian S. Fisher, former Legal Advisor to the Department of State. This Report concluded, at 70, as to criminal enforcement of area restrictions:
'The Committee has not discovered any statute which clearly provides a penalty for violation of area restrictions, and this seems to be a glaring omission if the United States is seriously interested in the establishment and enforcement of travel controls. Knowing violation of valid restrictions should certainly be subject to an effective sanction, which is not now the case.'
21
The most recent bill, introduced by the Department after two years of study, was H.R. 14895, 89th Cong., 2d Sess. (1966). See Hearings before the Subcommittee To Investigate the Administration of the Internal Security Act and Other Internal Security Laws, Senate Committee on the Judiciary, on S. 3243, 89th Cong., 2d Sess. (1966), p. 73. Some of the other bills which failed in Congress are discussed in the opinion of the court below.
| 23
|
385 U.S. 458
87 S.Ct. 584
17 L.Ed.2d 515
Obed M. LASSEN, Commissioner, State Land Department, Petitioner,v.ARIZONA ex rel. ARIZONA HIGHWAY DEPARTMENT.
No. 84.
Argued Nov. 16, 1966.
Decided Jan. 10, 1967.
John P. Frank, Phoenix, Ariz., for petitioner.
Edwin L. Weisl, Jr., New York City, for United States, as amicus curiae, by special leave of Court.
Rex E. Lee, Phoenix, Ariz., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
This action was brought as an original proceeding in the Supreme Court of Arizona by the State on the relation of its Highway Department. The Department seeks to prohibit the application by the State Land Commissioner of rules governing the acquisition of rights of way and material sites in federally donated lands held in trust by the State.1 The Commissioner's rules provide in pertinent part that 'Rights of Way and Material Sites may be granted * * * for an indefinite period * * * after full payment of the appraised value * * * has been made to the State Land Department. The appraised value * * * shall be determined in accordance with the principles established in A.R.S. 12—1122.' Rule 12. The Supreme Court of Arizona held that it may be conclusively presumed that highways constructed across trust lands always enhance the value of the remaining trust lands in amounts at least equal to the value of the areas taken. It therefore ordered the Commissioner to grant without actual compensation material sites and rights of way upon trust lands. 99 Ariz. 161, 407 P.2d 747.
2
The lands at issue here are among some 10,790,000 acres granted by the United States to Arizona in trust for the use and benefit of designated public activities within the State.2 The Federal Government since the Northwest Ordinance of 1787 has made such grants to States newly admitted to the Union.3 Although the terms of these grants differ, at least the most recent commonly make clear that the United States has a continuing interest in the administration of both the lands and the funds which derive from them. The grant involved here thus expressly requires the Attorney General of the United States to maintain whatever proceedings may be necessary to enforce its terms.4 We brought this case here because of the importance of the issues presented both to the United States and to the States which have received such lands.5 384 U.S. 926, 86 S.Ct. 1446, 16 L.Ed.2d 530.
3
The issues here stem chiefly from ambiguities in the grant itself. The terms under which the United States provided these lands were included in the New Mexico-Arizona Enabling Act. 36 Stat. 557. The Act describes with particularity the disposition Arizona may make of the lands and of the funds derived from them, but it does not directly refer to the conditions or consequences of the use by the State itself of the trust lands for purposes not designated in the grant. Of the issues which may arise from the Act's silence, we need now reach only two: first, whether Arizona is permitted to obtain trust lands for such uses without first satisfying the Act's restrictions on disposition of the land; and second, what standard of compensation Arizona must employ to recompense the trust for the land it uses. Both issues require consideration of the Act's language and history.
I.
4
We turn first to the question of the method by which Arizona may obtain trust lands for purposes not included in the grant. The constraints imposed by the Act upon the methods by which trust lands may be transferred are few and simple. Section 28, which is reproduced in the Appendix to this opinion, requires, with exceptions inapplicable here, that lands be sold or leased only to 'the highest and best bidder at a public auction to be held at the county seat of the county wherein the lands * * * shall lie * * *.' The section prescribes the terms, form and frequency of the notice which must be given of the auction. It requires that no lands be sold for a price less than their appraised value. The Act imposes two sanctions upon transactions which fail to satisfy its requirements. First, § 28 provides broadly that trust lands must be 'disposed of in whole or in part only in manner as herein provided * * *.' It adds that 'Disposition of any of said lands * * * in any manner contrary to the provisions of this Act, shall be deemed a breach of trust.' Finally, it provides that 'Every sale, lease, conveyance, or contract of or concerning any of the lands hereby granted or confirmed * * * not made in substantial conformity with the provisions of this Act shall be null and void * * *.'
5
The parties urge, and the state court assumed, that Arizona need not follow these procedures when it seeks material sites and rights of way upon trust lands.6 The Commissioner's rules thus do not require an auction or other public sale. This view has been taken by other state courts contruing similar grants. Ross v. Trustees of University of Wyoming, 30 Wyo. 433, 222 P. 3; State ex rel. State Highway Commission v. Walker, 61 N.M. 374, 301 P.2d 317. We have concluded, for the reasons which follow, that the restrictions of the Act are inapplicable to acquisitions by the State for its highway program.
6
The Act's silence obliges us to examine its purposes, as evidenced by its terms and its legislative history, to determine whether these restrictions should be imposed here. The grant was plainly expected to produce a fund, accumulated by sale and use of the trust lands, with which the State could support the public institutions designated by the Act. It was not supposed that Arizona would retain all the lands given it for actual use by the beneficiaries; the lands were obviously too extensive and too often inappropriate for the selected purposes. Congress could scarcely have expected, for example, that many of the 8,000,000 acres of its grant 'for the support of the common schools,' all chosen without regard to topography or school needs, would be employed as building sites.7 It intended instead that Arizona would use the general powers of sale and lease given it by the Act to accumulate funds with which it could support its schools.
7
The central problem which confronted the Act's draftsmen was therefore to devise constraints which would assure that the trust received in full fair compensation for trust lands. The method of transfer and the transferee were material only so far as necessary to assure that the trust sought and obtained appropriate compensation. This is confirmed by the legislative history of the Enabling Act. All the restrictions on the use and disposition of the trust lands, including those on the powers of sale and lease, were first inserted by the Senate Committee on the Territories.8 Senator Beveridge, the committee's chairman, made clear on the floor of the Senate that the committee's determination to require the restrictions sprang from its fear that the trust would be exploited for private advantage. He emphasized that the committee was influenced chiefly by the repeated violations of a similar grant made to New Mexico in 1898.9 The violations had there allegedly consisted of private sales at unreasonably low prices, and the committee evidently hoped to prevent such depredations here by requiring public notice and sale.10 The restrictions were thus intended to guarantee, by preventing particular abuses through the prohibition of specific practices, that the trust received appropriate compensation for trust lands. We see no need to read the Act to impose these restrictions on transfers in which the abuses they were intended to prevent are not likely to occur, and in which the trust may in another and more effective fashion be assured full compensation.
8
Further, we should not fail to recognize that, were we to require Arizona to follow precisely these procedures, we would sanction an empty formality. There would not often be others to bid for the material sites and rights of way which the State might seek. More important, even if such bidders appeared and proved successful, nothing in the grant would prevent Arizona from thereafter condemning the land which it had failed to purchase; the anticipation of condemnation would leave the auction without any real significance. We cannot see that the trust would materially benefit from this circuity.
9
We conclude that it is consonant with the Act's essential purposes to exclude from the restrictions in question the transactions at issue here. The trust will be protected, and its purposes entirely satisfied, if the State is required to provide full compensation for the land it uses. We hold, therefore, that Arizona need not offer public notice or conduct a public sale when it seeks trust lands for its highway program. The State may instead employ the procedures established by the Commissioner's rules, or any other procedures reasonably calculated to assure the integrity of the trust and to prevent misapplication of its lands and funds.
II.
10
The second issue here is the standard of compensation which Arizona must employ to recompense the trust for the land it acquires. The Land Commissioner's rules provide simply that the State must pay the appraised value, as measured by the State's condemnation statute, of the right of way or material site. The Highway Department urges, and the Arizona Supreme Court held, that nothing need ever be actually paid since it may be conclusively presumed that all highways enhance the value of the remaining trust lands in amounts at least equal to the value of the lands which were taken. The United States, as amicus curiae, suggests that the Highway Department be obliged to pay the land's appraised value, but that it be permitted to reduce that sum by the amount of any enhancement shown in the value of the remaining trust lands. The rule urged by the United States differs from that adopted by the state court only in that the United States would not permit the Highway Department to presume enhancement, but would instead require that it be established by the Department in each instance with reasonable certainty and precision. Under this rule, enhancement would have to be individually proved and computed for small tracts of land checkered over the entire State.
11
We are urged by the United States to determine only the validity of the rule of law stated by the Arizona Supreme Court, and to defer the broader question of whether enhancement may ever be permitted to diminish the actual compensation payable to the trust. The United States emphasizes that the broader issue does not directly arise under the Commissioner's rules, since the Arizona condemnation statute incorporated by those rules does not permit benefits to reduce the compensation payable for the condemned land's fair market value.11 We are unable to take so narrow a view. The rule adopted by the state court clearly stemmed from, and depended upon, the premise that enhancement may be balanced against the value of the trust lands taken by the State. If we severed the conclusion from its premise, we would halt short of a full adjudication of the validity of the Commissioner's rules, and unnecessarily prolong the litigation of this important question. We have therefore reached the broader issue, and have concluded that the terms and purposes of the grant do not permit Arizona to diminish the actual compensation, meaning thereby monetary compensation, payable to the trust by the amount of any enhancement in the value of the remaining trust lands.
12
The Enabling Act unequivocally demands both that the trust receive the full value of any lands transferred from it and that any funds received be employed only for the purposes for which the land was given. First, it requires that before trust lands or other products are offered for sale they must be 'appraised at their true value,' and that 'no sale or other disposal * * * shall be made for a consideration less than the value so ascertained * * *.'12 The Act originally provided in addition that trust lands should not be sold for a price less than a statutory minimum.13 Second, it imposes a series of careful restrictions upon the use of trust funds. As this Court has noted, the Act contains 'a specific enumeration of the purposes for which the lands were granted and the enumeration is necessarily exclusive of any other purpose.' Ervien v. United States, 251 U.S. 41, 47, 40 S.Ct. 75, 76, 64 L.Ed. 128. The Act thus specifically forbids the use of 'money or thing of value directly or indirectly derived'14 from trust lands for any purposes other than those for which that parcel of land was granted. It requires the creation of separate trust accounts for each of the designated beneficiaries, prohibits the transfer of funds among the accounts, and directs with great precision their administration. 'Words more clearly designed * * * to create definite and specific trusts and to make them in all respects separate and independent of each other could hardly have been chosen.' United States v. Ervien, 10 Cir., 246 F. 277, 279. All these restrictions in combination indicate Congress' concern both that the grants provide the most substantial support possible to the beneficiaries and that only those beneficiaries profit from the trust.
13
This is confirmed by the background and legislative history of the Enabling Act. The restrictions placed upon land grants to the States became steadily more rigid and specific in the 50 years prior to this Act, as Congress sought to require prudent management and thereby to preserve the usefulness of the grants for their intended purposes.15 The Senate Committee on the Territories, with the assistance of the Department of Justice,16 adopted for the New Mexico-Arizona Act the most satisfactory of the restrictions contained in the earlier grants. Its premise was that the grants cannot 'be too carefully safeguarded for the purpose for which they are appropriated.'17 Senator Beveridge described the restrictions as 'quite the most important item' in the Enabling Act, and emphasized that his committee believed that 'we were giving the lands to the States for specific purposes, and that restrictions should be thrown about it which would assure its being used for those purposes.'18
14
Nothing in these restrictions is explicitly addressed to acquisitions by the State for its other public activities; the Enabling Act is, as we have noted, entirely silent on these questions. We must nevertheless conclude that the purposes of Congress require that the Act's designated beneficiaries 'derive the full benefit'19 of the grant. The conclusive presumption of enhancement which the Arizona Supreme Court found does not in our view adequately assure fulfillment of that purpose, particularly in the context of lands that are as variegated and far-flung as those comprised in this grant. And we think that the more particularized showing of enhancement advocated by the United States, resting as it largely would upon the forecasts of experts which by nature are subject to the imponderables and hazards of the future, also falls short of assuring accomplishment of the basic intendment of Congress. Acceptance of either of these courses for reimbursing the trust in these circumstances might well result in diminishing the benefits conferred by Congress and in effect deflecting a portion of them to the State's highway program.20
15
We hold therefore that Arizona must actually compensate the trust in money21 for the full appraised value of any material sites or rights of way which it obtains on or over trust lands.22 This standard most nearly reproduces the results of the auction prescribed by the Act, and most consistently reflects the essential purposes of the grant.
16
The judgment of the Supreme Court of Arizona is accordingly reversed and the case is remanded for further proceedings not inconsistent with this opinion.
17
It is so ordered.
18
Judgment reversed and cause remanded.
APPENDIX TO OPINION OF THE COURT.
19
SECTION 28 OF NEW MEXICO-ARIZONA ENABLING ACT, AS AMENDED.
20
Sec. 28. That it is hereby declared that all lands hereby granted, including those which, having been heretofore granted to the said Territory, are hereby expressly transferred and confirmed to the said State, shall be by the said State held in trust, to be disposed of in whole or in part only in manner as herein provided and for the several objects specified in the respective granting and confirmatory provisions, and that the natural products and money proceeds of any of said lands shall be subject to the same trusts as the lands producing the same.
21
Disposition of any of said lands, or of any money or thing of value directly or indirectly derived therefrom, for any object other than for which such particular lands, or the lands from which such money or thing of value shall have been derived, were granted or confirmed, or in any manner contrary to the provisions of this Act, shall be deemed a breach of trust.
22
No mortgage or other encumbrance of the said lands, or any part thereof, shall be valid in favor of any person or for any purpose or under any circumstances whatsoever. Said lands shall not be sold or leased, in whole or in part, except to the highest and best bidder at a public auction to be held at the county seat of the county wherein the lands to be affected, or the major portion thereof, shall lie, notice of which public auction shall first have been duly given by advertisement, which shall set forth the nature, time, and place of the transaction to be had, with a full description of the lands to be offered, and be published once each week for not less than ten successive weeks in a newspaper of general circulation published regularly at the State capital, and in that newspaper of like circulation which shall then be regularly published nearest to the location of the lands so offered; nor shall any sale or contract for the sale of any timber or other natural product of such lands be made, save at the place, in the manner, and after the notice by publication provided for sales and leases of the lands themselves. Nothing herein contained shall prevent: (1) the leasing of any of the lands referred to in this section, in such manner as the Legislature of the State of Arizona may prescribe, for grazing, agricultural, commercial, and homesite purposes, for a term of ten years or less; (2) the leasing of any of said lands, in such manner as the Legislature of the State of Arizona may prescribe, whether or not also leased for grazing and agricultural purposes, for mineral purposes, other than for the exploration, development, and production of oil, gas, and other hydrocarbon substances, for a term of twenty years or less; (3) the leasing of any said lands, whether or not also leased for other purposes, for the exploration, development, and production of oil, gas and other hydrocarbon substances on, in, or under said lands for an initial term of twenty years or less and as long thereafter as oil, gas or other hydrocarbon substance may be procured therefrom in paying quantities, the leases to be made in any manner, with or without advertisement, bidding, or appraisement, and under such terms and provisions as the Legislature of the State of Arizona may prescribe, the terms and provisions to include a reservation of a royalty to said State of not less than 12 1/2 per centum of production; or (4) the Legislature of the State of Arizona from providing by proper laws for the protection of lessees of said lands, whereby such lessees shall be protected in their rights to their improvements (including water rights) in such manner that in case of lease or sale of said lands to other parties the former lessee shall be paid by the succeeding lessee or purchaser the value of such improvements and rights placed thereon by such lessee.
23
All lands, leaseholds, timber, and other products of land, before being offered, shall be appraised at their true value, and no sale or other disposal thereof shall be made for a consideration less than the value so ascertained, nor upon credit unless accompanied by ample security, and the legal title shall not be deemed to have passed until the consideration shall have been paid.
24
No lands shall be sold for less than their appraised value, and no lands which are or shall be susceptible of irrigation under any projects now or hereafter completed or adopted by the United States under legislation for the reclamation of lands, or under any other project for the reclamation of lands, shall be sold at less than twenty-five dollars per acre: Provided, That said State, at the request of the Secretary of the Interior, shall from time to time relinquish such of its lands to the United States as at any time are needed for irrigation works in connection with any such government project. And other lands in lieu thereof are hereby granted to said State, to be selected from lands of the character named and in the manner prescribed in section twenty-four of this Act.
25
The State of Arizona is authorized to exchange any lands owned by it for other lands, public or private, under such regulations as the legislature thereof may prescribe: Provided, That such exchanges involving public lands may be made only as authorized by Acts of Congress and regulations thereunder.
26
There is hereby reserved to the United States and excepted from the operation of any and all grants made or confirmed by this Act to said proposed State all land actually or prospectively valuable for the development of water power or power for hydro-electric use or transmission and which shall be ascertained and designated by the Secretary of the Interior within five years after the proclamation of the President declaring the admission of the State; and no lands so reserved and excepted shall be subject to any disposition whatsoever by said State, and any conveyance or transfer of such land by said State or any officer thereof shall be absolutely null and void within the period above named; and in lieu of the land so reserved to the United States and excepted from the operation of any of said grants there be, and is hereby, granted to the proposed State an equal quantity of land to be selected from land of the character named and in the manner prescribed in section twenty-four of this Act.
27
A separate fund shall be established for each of the several objects for which the said grants are hereby made or confirmed, and whenever any moneys shall be in any manner derived from any of said land the same shall be deposited by the state treasurer in the fund corresponding to the grant under which the particular land producing such moneys was by this Act conveyed or confirmed. No moneys shall ever be taken from one fund for deposit in any other, or for any object other than that for which the land producing the same was granted or confirmed. The state treasurer shall keep all such moneys invested in safe, interest-bearing securities, which securities shall be approved by the governor and secretary of state of said proposed State, and shall at all times be under a good and sufficient bond or bonds conditioned for the faithful performance of his duties in regard thereto, as defined by this Act and the laws of the State not in conflict herewith.
28
Every sale, lease, conveyance, or contract of or concerning any of the lands hereby granted or confirmed, or the use thereof or the natural products thereof, not made in substantial conformity with the provisions of this Act shall be null and void, any provision of the constitution or laws of the said State to the contrary notwithstanding.
29
It shall be the duty of the Attorney-General of the United States to prosecute, in the name of the United States and in its courts, such proceedings at law or in equity as may from time to time be necessary and appropriate to enforce the provisions hereof relative to the application and disposition of the said lands and the products thereof and the funds derived therefrom.
30
Nothing herein contained shall be taken as in limitation of the power of the State or of any citizen thereof to enforce the provisions of this Act.
1
This action is in form and substance a controversy between two agencies of the State of Arizona, both formally represented by the State's Attorney General. We have nonetheless concluded that this is a case with which we may properly deal. The Land Commissioner is apparently a substantially independent state officer, appointed for a term of years and removable only for cause. He is essentially the trustee of the trust at issue here, with custody of the trust lands. In addition, both the Commissioner and the Highway Department are represented by special counsel appointed by the Attorney General to advocate the divergent positions of the parties.
2
The grants consisted of four sections in each township for the support of common schools, plus specified acreages for other designated purposes. The other acreages were granted for the support of agricultural and mechanical colleges, a school of mines, military institutes, the payment of bonds, miners' hospitals, penitentiaries, and similar purposes. Of the 10,790,000 acres granted to Arizona for all designated uses, some 9,180,000 acres were earmaked for various educational purposes, of which some 8,000,000 acres were given for the support of common schools.
3
Between 1803 and 1962, the United States granted a total of some 330,000,000 acres to the States for all purposes. Of these, some 78,000,000 acres were given in support of common schools. The Public Lands, Senate Committee on Interior and Insular Affairs, 88th Cong., 1st Sess., 60 (Comm. Print 1963).
4
36 Stat. 575.
5
Nine States urged as amici curiae that we review the judgment below. One of the nine, New Mexico, received lands in trust under the very grant in issue here. The Supreme Court of New Mexico has held in closely similar circumstances that actual compensation must be paid to the trust. State ex rel. State Highway Commission v. Walker, 61 N.M. 374, 301 P.2d 317.
6
In addition, the court suggested that the restrictions of the Enabling Act are inapplicable here because the State obtains less than a fee interest. This contention is plainly foreclosed by the language of § 28, by which 'Every sale, lease, conveyance, or contract of or concerning any of the lands' is void unless in substantial conformity with the Act.
7
The school lands were granted according to the rigid checkerboard pattern of the federal survey. Four sections per township were granted by number for the support of common schools, instead of the one section per township ordinarily given in the earlier grants, because the unappropriated lands in Arizona and New Mexico were largely of so little value. Orfield, Federal Land Grants to the States 45.
8
S.Rep. No. 454, 61st Cong., 2d Sess., 18.
9
Remarks of Senator Beveridge, 45 Cong.Rec. 8227.
10
Ibid. These violations culminated in a series of lawsuits brought by the Department of Justice against those privy to them. These lawsuits were pending when the Enabling Act was under study by Congress. The importance of this episode is also indicated in the committee's report. S.Rep. No. 454, 61st Cong., 2d Sess., 19 20.
11
Ariz.Rev.Stat.Ann. § 12—1122. The statute permits benefits to reduce any damages caused by severance to the uncondemned portions of a parcel of land, but not to reduce the compensation paid for the land which is condemned.
12
36 Stat. 574.
13
Ibid. The Act fixed a minimum price of $3 per acre in Arizona. This requirement was removed by the Act of June 5, 1936. 49 Stat. 1477. The Act still requires that land 'susceptible of irrigation' under federal or other projects not be sold for less than $25 per acre. 36 Stat. 574.
14
36 Stat. 574.
15
Orfield, Federal Land Grants to the States 48—52.
16
S.Rep. No. 454, 61st Cong., 2d Sess., 20.
17
Ibid.
18
Remarks of Senator Beveridge, 45 Cong.Rec. 8227.
19
Letter from former Secretary of the Interior Garfield to the House Committee on the Territories. H.R.Rep. No. 152, 61st Cong., 2d Sess., 3.
20
Despite widespread use of the value of benefits in computing condemnation awards, the various rules adopted for that purpose have created confusion and difficulties. See Haar & Hering, The Determination of Benefits in Land Acquisition, 51 Calif.L.Rev. 833. These problems would be aggravated in the context of this situation, since the benefits would have to be individually computed for tracts of land scattered over the entire State.
21
We do not mean to suggest that deferred payment arrangements might not be appropriate. Cf. the provisions of § 28 (see Appendix): 'no sale or other disposal thereof shall be made for a consideration less than the value so ascertained, * * * nor upon credit unless accompanied by ample security, and the legal title shall not be deemed to have passed until the consideration shall have been paid.' Nor do we mean that exchanges, in the situations in which they are permitted by the Act, would not be appropriate. Cf. the provisions of § 28 (see Appendix): 'The State of Arizona is authorized to exchange any lands owned by it for other lands, public or private, under such regulations as the legislature thereof may prescribe: Provided, That such exchanges involving public lands may be made only as authorized by Acts of Congress and regulations thereunder.'
22
We are informed by counsel that over a period of years Arizona has obtained the use of large areas of trust lands on bases that may not have accorded with those set forth in this opinion. We wish to make it plain that we do not reach either the validity of any such transfers or the obligations of the State, if any, with respect thereto.
| 910
|
385 U.S. 491
87 S.Ct. 583
17 L.Ed.2d 536
Helen Maxine Levi TRAVIS, Petitioner,v.UNITED STATES.
No. 67.
Argued Nov. 15 and 16, 1966.
Decided Jan. 10, 1967.
John T. McTernan, Los Angeles, Cal., for petitioner.
Nathan Lewin, Washington, D.C., for respondent.
Mr. Justice FORTAS delivered the opinion of the Court.
1
This is a companion case to No. 176, United States v. Laub, 385 U.S. 475, 87 S.Ct. 574, 17 L.Ed.2d 526. Petitioner was tried on a stipulation of facts, under an indictment which alleged that on two occasions she 'did unlawfully, knowingly and willfully depart from the United States without bearing a valid passport, for the Republic of Cuba, via Mexico, the Republic of Cuba being a place outside the United States for which a valid passport is required' in violation of § 215(b) of the Immigration and Nationality Act of 1952, 66 Stat. 190, 8 U.S.C. § 1185(b). The parties stipulated that 'At no time pertinent or material herein did defendant, Helen Maxine Levi Travis, bear a valid United States passport specifically endorsed for travel to the Republic of Cuba * * *.' This stipulation is all that the record in this case reveals as to petitioner's possession of a valid passport. Petitioner was convicted, and the Court of Appeals affirmed. We granted certiorari in light of the important questions raised by petitioner, and the apparent conflict with the decision of the District Court for the Eastern District of New York in the Laub case, supra, which we affirm today.
2
As our decision in Laub determines, if petitioner in fact had a valid passport, and the gravamen of the Government's accusation under § 215(b) were that her passport was not valid for travel to Cuba, this conviction could not stand. We have today held that area restrictions upon the use of an otherwise valid passport are not criminally enforceable under § 215(b). Because the Government did not allege, and introduced no proof, that petitioner did not bear a valid passport on each of the occasions on which she departed for Cuba, via Mexico, our decision in Laub, supra, requires that her conviction be reversed.
3
Accordingly, the judgment of the Court of Appeals is reversed.
4
Reversed.
| 23
|
385 U.S. 511
87 S.Ct. 625
17 L.Ed.2d 574
Samuel SPEVACK, Petitioner,v.Solomon A. KLEIN.
No. 62.
Argued Nov. 7, 1966.
Decided Jan. 16, 1967.
Lawrence J. Latto, Washington, D.C., for petitioner.
Solomon A. Klein, for respondent, pro se.
Mr. Justice DOUGLAS announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE, MR. JUSTICE BLACK and MR. JUSTICE BRENNAN concur.
1
This is a proceeding to discipline petitioner, a member of the New York Bar, for professional misconduct. Of the various charges made, only one survived, viz., the refusal of petitioner to honor a subpoena duces tecum served on him in that he refused to produce the demanded financial records and refused to testify at the judicial inquiry. Petitioner's sole defense was that the production of the records and his testimony would tend to incriminate him. The Appellate Division of the New York Supreme Court ordered petitioner disbarred, holding that the constitutional privilege against self-incrimination was not available to him in light of our decision in Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d 156. See 24 A.D.2d 653. The Court of Appeals affirmed, 16 N.Y.2d 1048, 266 N.Y.S.2d 126, 213 N.E.2d 457, 17 N.Y.2d 490, 267 N.Y.S.2d 210, 214 N.E.2d 373. The case is here on certiorari which we granted to determine whether Cohen v. Hurley, supra, had survived Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653.
2
Cohen v. Hurley was a five-to-four decision rendered in 1961. It is practically on all fours with the present case. There, as here, an attorney relying on his privilege against self-incrimination refused to testify and was disbarred. The majority of the Court allowed New York to construe her own privilege against self-incrimination so as not to make it available in judicial inquiries of this character (366 U.S., at 125—127, 81 S.Ct., at 959, 960) and went on to hold that the Self-Incrimination Clause of the Fifth Amendment was not applicable to the States by reason of the Fourteenth. Id., 366 U.S. at 127—129, 81 S.Ct. at 960—962. The minority took the view that the full sweep of the Fifth Amendment had been absorbed into the Fourteenth and extended its protection to lawyers as well as other persons.
3
In 1964 the Court in another five-to-four decision held that the Self-Incrimination Clause of the Fifth Amendment was applicable to the States by reason of the Fourteenth. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. While Cohen v. Hurley was not overruled, the majority indicated that the principle on which it rested had been seriously eroded. 378 U.S., at 11, 84 S.Ct., at 1495. One minority view espoused by Mr. Justice Harlan and Mr. Justice Clark stated that Cohen v. Hurley flatly decided that the Self-Incrimination Clause of the Fifth Amendment was not applicable against the States (id., 378 U.S. at 17, 84 S.Ct. at 1498) and urged that it be followed. The others in dissent—Mr. Justice White and Mr. Justice Stewart—thought that on the facts of the case the privilege was not properly invoked and that the state trial judge should have been sustained in ruling that the answers would not tend to incriminate. Id., 378 U.S. at 33—38, 84 S.Ct. 1506—1509.
4
The Appellate Division distinguished Malloy v. Hogan on the ground that there the petitioner was not a member of the Bar. 24 A.D.2d, at 654. And the Court of Appeals rested squarely on Cohen v. Hurley as one of the two grounds for affirmance.1
5
And so the question emerges whether the principle of Malloy v. Hogan is inapplicable because petitioner is a member of the Bar. We conclude that Cohen v. Hurley should be overruled, that the Self-Incrimination Clause of the Fifth Amendment has been absorbed in the Fourteenth, that it extends its protection to lawyers as well as to other individuals, and that it should not be watered down by imposing the dishonor of disbarment and the deprivation of a livelihood as a price for asserting it. These views, expounded in the dissents in Cohen v. Hurley, need not be elaborated again.
We said in Malloy v. Hogan:
6
'The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement—the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty * * * for such silence.' 378 U.S., at 8, 84 S.Ct., at 1493.2
7
In this context 'penalty' is not restricted to fine or imprisonment. It means, as we said in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, the imposition of any sanction which makes assertion of the Fifth Amendment privilege 'costly.' Id., 380 U.S. at 614, 85 S.Ct. at 1233. We held in that case that the Fifth Amendment, operating through the Fourteenth, 'forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.' Id., 380 U.S. at 615, 85 S.Ct. at 1233. What we said in Malloy and Griffin is in the tradition of the broad protection given the privilege at least since Boyd v. United States, 116 U.S. 616, 634—635, 6 S.Ct. 524, 534—535, 29 L.Ed. 746, where compulsory production of books and papers of the owner of goods sought to be forfeited was held to be compelling him to be a witness against himself.
8
'It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.' 116 U.S., at 635, 6 S.Ct., at 535.
9
The threat of disbarment and the loss of professional standing, professional reputation, and of livelihood are powerful forms of compulsion to make a lawyer relinquish the privilege. That threat is indeed as powerful an instrument of compulsion as 'the use of legal process to force from the lips of the accused individual the evidence necessary to convict him * * *.' United States v. White, 322 U.S. 694, 698, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542. As we recently stated in Miranda v. State of Arizona, 384 U.S. 436, 461, 86 S.Ct. 1602, 1620, 16 L.Ed.2d 694, 'In this Court, the privilege has consistently been accorded a liberal construction.' It is in that tradition that we overrule Cohen v. Hurley. We find no room in the privilege against self-incrimination for classifications of people so as to deny it to some and extend it to others. Lawyers are not excepted from the words 'No person * * * shall be compelled in any criminal case to be a witness against himself'; and we can imply no exception. Like the school teacher in Slochower v. Board of Higher Education of City of New York, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692, and the policemen in Garrity v. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562,3 lawyers also enjoy first-class citizenship.
10
The Court of Appeals alternately affirmed the judgment disbarring petitioner on the ground that under Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787, and the required records doctrine he was under a duty to produce the withheld records. The Court of Appeals did not elaborate on the point; nor did the Appellate Division advert to it. At the time in question the only Rule governing the matter was entitled 'Preservation of records of actions, claims and proceedings.'4 It provided that in cases involving 'contingent fee compensation' attorneys for all the parties shall preserve 'the pleadings, records and other papers pertaining to such action, claim and proceeding, and also all data and memoranda of the disposition thereof, for the period of at least five years after any settlement or satisfaction of the action, claim or proceeding or judgment or final order thereon, or after the dismissal or discontinuance of any action or proceeding brought.'
11
The documents sought in the subpoena were petitioner's daybook, cash receipts book, cash disbursements book, checkbook stubs, petty cashbook and vouchers, general ledger and journal, canceled checks and bank statements, passbooks and other evidences of accounts, record of loans made, payroll records, and state and federal tax returns and worksheets relative thereto.
12
The Shapiro case dealt with a federal price control regulation requiring merchants to keep sales records. The Court called them records with 'public aspects,' as distinguished from private papers (335 U.S., at 34, 68 S.Ct., at 1393); and concluded by a divided vote that their compelled production did not violate the Fifth Amendment. We are asked to overrule Shapiro. But we find it unnecessary to reach it.
13
Rule 5, requiring the keeping of records, was broad and general—'the pleadings, records and other papers pertaining to such action, claim and proceeding, and also all data and memoranda of the disposition thereof.' The detailed financial aspects of contingent-fee litigation demanded might possibly by a broad, generous construction of the Rule be brought within its intendment. Our problem, however, is different. Neither the referee of the inquiry, nor counsel for the inquiry, nor the Appellate Division of the New York Supreme Court questioned the applicability of the privilege against self-incrimination to the records. All proceeded on the basis that petitioner could invoke the privilege with respect to the records, but that the price he might have to pay was disbarment. The Court of Appeals was the first to suggest that the privilege against self-incrimination was not applicable to the records. Petitioner, however, had been disbarred on the theory that the privilege was applicable to the records, but that the invocation of the privilege could lead to disbarment. His disbarment cannot be affirmed on the ground that the privilege was not applicable in the first place. Cole v. State of Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644. For that procedure would deny him all opportunity at the trial to show that the Rule, fairly construed and understood, should not be given a broad sweep5 and to make a record that the documents demanded by the subpoena had no 'public aspects' within the required records rule but were private papers.
14
Reversed.
15
Mr. Justice FORTAS, concurring in the judgment.
16
I agree that Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d 156 (1961), should be overruled. But I would distinguish between a lawyer's right to remain silent and that of a public employee who is asked questions specifically, directly, and narrowly relating to the performance of his official duties as distinguished from his beliefs or other matters that are not within the scope of the specific duties which he undertook faithfully to perform as part of his employment by the State. This Court has never held, for example, that a policeman may not be discharged for refusal in disciplinary proceedings to testify as to his conduct as a police officer. It is quite a different matter if the State seeks to use the testimony given under this lash in a subsequent criminal proceeding. Garrity v. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562.
17
But a lawyer is not an employee of the State. He does not have the responsibility of an employee to account to the State for his actions because he does not perform them as agent of the State. His responsibility to the State is to obey its laws and the rules of conduct that it has generally laid down as part of its licensing procedures. The special responsibilities that he assumes as licensee of the State and officer of the court do not carry with them a diminution, however limited, of his Fifth Amendment rights. Accordingly, I agree that Spevack could not be disbarred for asserting his privilege against self-incrimination.
18
If this case presented the question whether a lawyer might be disbarred for refusal to keep or to produce, upon properly authorized and particularized demand, records which the lawyer was lawfully and properly required to keep by the State as a proper part of its functions in relation to him as licensor of his high calling, I should feel compelled to vote to affirm, although I would be prepared in an appropriate case to re-examine the scope of the principle announced in Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948). I am not prepared to indicate doubt as to the essential validity of Shapiro. However, I agree that the required records issue is not appropriately presented here, for the reasons stated by my Brother DOUGLAS. On this basis I join in the judgment of the Court.
19
Mr. Justice HARLAN, whom Mr. Justice CLARK and Mr. Justice STEWART join, dissenting.
20
This decision, made in the name of the Constitution, permits a lawyer suspected of professional misconduct to thwart direct official inquiry of him without fear of disciplinary action. What is done today will be disheartening and frustrating to courts and bar associations throughout the country in their efforts to maintain high standards at the bar.
21
It exposes this Court itself to the possible indignity that it may one day have to admit to its own bar such a lawyer unless it can somehow get at the truth of suspicions, the investigation of which the applicant has previously succeeded in blocking. For I can perceive no distinction between 'admission' and 'disbarment' in the rationale of what is now held. The decision might even lend some color of support for justifying the appointment to the bench of a lawyer who, like petitioner, prevents full inquiry into his professional behavior. And, still more pervasively, this decision can hardly fail to encourage oncoming generations of lawyers to think of their calling as imposing on them no higher standards of behavior than might be acceptable in the general market-place. The soundness of a constitutional doctrine carrying such denigrating import for our profession is surely suspect on its face.
22
Six years ago a majority of this Court, in Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d 156, set its face against the doctrine that now prevails, bringing to bear in support of the Court's holding, among other things, the then-established constitutional proposition that the Fourteenth Amendment did not make applicable to the States the Fifth Amendment as such. Three years later another majority of the Court, in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, decided to make the Fifth Amendment applicable to the States and in doing so cast doubt on the continuing vitality of Cohen v. Hurley. The question now is whether Malloy requires the overruling of Cohen in its entirety. For reasons that follow I think it clear that it does not.
23
It should first be emphasized that the issue here is plainly not whether lawyers may 'enjoy first-class citizenship.' Nor is the issue whether lawyers may be deprived of their federal privilege against self-incrimination, whether or not criminal prosecution is undertaken against them. These diversionary questions have of course not been presented or even remotely suggested by this case either here or in the courts of New York. The plurality opinion's vivid rhetoric thus serves only to obscure the issues with which we are actually confronted, and to hinder their serious consideration. The true question here is instead the proper scope and effect of the privilege against self-incrimination under the Fourteenth Amendment in state disciplinary proceedings against attorneys.1 In particular, we are required to determine whether petitioner's disbarment for his failure to provide information relevant to charges of misconduct in carrying on his law practice impermissibly vitiated the protection afforded by the privilege. This important question warrants more complete and discriminating analysis than that given to it by the plurality opinion.
24
This Court reiterated only last Term that the constitutional privilege against self-incrimination 'has never been given the full scope which the values it helps to protect suggest.' Schmerber v. State of California, 384 U.S. 757, 762, 86 S.Ct. 1826, 1831, 16 L.Ed.2d 908. The Constitution contains no formulae with which we can calculate the areas within this =full scope' to which the privilege should extend, and the Court has therefore been obliged to fashion for itself standards for the application of the privilege. In federal cases stemming from Fifth Amendment claims, the Court has chiefly derived its standards from consideration of two factors: the history and purposes of the privilege, and the character and urgency of the other public interests involved. See, e.g., Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842; Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453; Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787. If, as Malloy v. Hogan, supra, suggests, the federal standards imposed by the Fifth Amendment are now to be extended to the States through the Fourteenth Amendment, see also Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, it would follow that these same factors must be no less relevant in cases centering on Fourteenth Amendment claims. In any event, the construction consistently given to the Fourteenth Amendment by this Court would require their consideration. Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480. I therefore first turn to these factors to assess the validity under the Fourteenth Amendment of petitioner's disbarment.
25
It cannot be claimed that the purposes served by the New York rules at issue here, compendiously aimed at 'ambulance chasing' and its attendant evils, are unimportant or unrelated to the protection of legitimate state interests. This Court has often held that the States have broad authority to devise both requirements for admission and standards of practice for those who wish to enter the professions. E.g., Hawker v. People of State of New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002; Dent v. State of West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623; Barsky v. Board of Regents of University of State of New York, 347 U.S. 442, 74 S.Ct. 650, 98 L.Ed. 829. The States may demand any qualifications which have 'a rational connection with the applicant's fitness or capacity,' Schware v. Board of Bar Examiners of State of New Mexico, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796, and may exclude any applicant who fails to satisfy them. In particular, a State may require evidence of good character, and may place the onus of its production upon the applicant. Konigsberg v. State Bar of California, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105. Finally, a State may without constitutional objection require in the same fashion continuing evidence of professional and moral fitness as a condition of the retention of the right to practice. Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d 156. All this is in no way questioned by today's decision.
26
As one prerequisite of continued practice in New York, the Appellate Division, Second Department, of the Supreme Court of New York has determined that attorneys must actively assist the courts and the appropriate professional groups in the prevention and detection of unethical legal activities. The Second Department demands that attorneys maintain various records, file statements of retainer in certain kinds of cases, and upon request provide information, all relevant to the use by the attorneys of contingent fee arrangements in such cases. These rules are intended to protect the public from the abuses revealed by a lengthy series of investigations of malpractices in the geographical area represented by the Second Department. It cannot be said that these conditions are arbitrary or unreasonable, or that they are unrelated to an attorney's continued fitness to practice. English courts since Edward I have endeavored to regulate the qualification and practice of lawyers, always in hope that this might better assure the integrity and evenhandedness of the administration of justice.2 Very similar efforts have been made in the United States since the 17th century.3 These efforts have protected the systems of justice in both countries from abuse, and have directly contributed to public confidence in those systems. Such efforts give appropriate recognition to the principle accepted both here and in England that lawyers are officers of the court who perform a fundamental role in the administration of justice.4 The rules at issue here are in form and spirit a continuation of these efforts, and accordingly are reasonably calculated to serve the most enduring interests of the citizens of New York.
27
Without denying the urgency or significance of the public purposes served by these rules, the plurality opinion has seemingly concluded that they may not be enforced because any consequence of a claim of the privilege against self-incrimination which renders that claim 'costly' is an 'instrument of compulsion which impermissibly infringes on the protection offered by the privilege. Apart from brief obiter dicta in recent opinions of this Court, this broad proposition is entirely without support in the construction hitherto given to the privilege, and is directly inconsistent with a series of cases in which this Court has indicated the principles which are properly applicable here. The Court has not before held that the Federal Government and the States are forbidden to permit any consequences to result from a claim of the privilege; it has instead recognized that such consequences may vary widely in kind and intensity, and that these differences warrant individual examination both of the hazard, if any, offered to the essential purposes of the privilege, and of the public interests protected by the consequence. This process is far better calculated than the broad prohibition embraced by the plurality to serve both the purposes of the privilege and the other important public values which are often at stake in such cases. It would assure the integrity of the privilege, and yet guarantee the most generous opportunities for the pursuit of other public values, by selecting the rule or standard most appropriate for the hazards and characteristics of each consequence.
28
One such rule has already been plainly approved by this Court. It seems clear to me that this rule is applicable to the situation now before us. The Court has repeatedly recognized that it is permissible to deny a status or authority to a claimant of the privilege against self-incrimination if his claim has prevented full assessment of his qualifications for the status or authority. Under this rule, the applicant may not both decline to disclose information necessary to demonstrate his fitness, and yet demand that he receive the benefits of the status. He may not by his interjection of the privilege either diminish his obligation to establish his qualifications, or escape the consequences exacted by the State for a failure to satisfy that obligation.
29
This rule was established by this Court in Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842. The Court there held that a doctor who refused, under a claim of the privilege against self-incrimination, to divulge whether he was a Communist was not entitled by right to receive a commission as an Army officer, although he had apparently satisfied every other prerequisite for a commission. The Court expressly noted that '(n)o one believes he can be punished' for asserting the privilege, but said that it had 'no hesitation' in holding that the petitioner nonetheless could not both rely on the privilege to deny relevant information to the commissioning authorities and demand that he be appointed to a position of 'honor and trust.' 345 U.S., at 91, 73 S.Ct., at 539. The Court concluded that 'we cannot doubt that the President of the United States, before certifying his confidence in an officer and appointing him to a commissioned rank, has the right to learn whatever facts the President thinks may affect his fitness.' Ibid.
30
Analogous problems were involved in Kimm v. Rosenberg, 363 U.S. 405, 80 S.Ct. 1139, 4 L.Ed.2d 1299, in which the Court held that an alien whose deportation had been ordered was ineligible for a discretionary order permitting his voluntary departure. The alien was held to be ineligible because he had failed to establish that he was not affiliated with the Communist Party, in that he refused to answer questions about membership in the Party on grounds that the answers might incriminate him. The petitioner could not prevent the application of a sanction imposed as a result of his silence by interposing the privilege against self-incrimination as a basis for that silence.
31
These principles have also been employed by this Court to hold that failure to incriminate one's self can result in denial of the removal of one's case from a state to a federal court, Maryland v. Soper (No. 1), 270 U.S. 9, 46 S.Ct. 185, 70 L.Ed. 449, and by the Fourth Circuit to hold that a bankrupt's failure to disclose the disposition of his property, although disclosure might incriminate him, requires the denial of a discharge in bankruptcy. Kaufman v. Hurwitz, 4 Cir., 176 F.2d 210.
32
This Court has applied similar principles in a series of cases involving claims under the Fourteenth Amendment. These cases all antedate Malloy v. Hogan, and thus are presumably now subject to the 'federal standards,' but until today those standards included the principles of Orloff v. Willoughby, and Malloy v. Hogan therefore could not alone require a different result. The fulcrum of these cases has been Slochower v. Board of Higher Education of City of New York, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692. The appellant there was an associate professor at Brooklyn College who invoked the Fifth Amendment privilege before an investigating committee of the United States Senate, and was subsequently discharged from his position at the college by reason of that occurrence. The Court held that his removal was a denial of the due process demanded by the Fourteenth Amendment. Its reasons were apparently two: first, the Board had attached a 'sinister meaning,' in the form of an imputation of guilt, to Slochower's invocation of the privilege; and second, the Board was not engaged in a bona fide effort to elicit information relevant to assess the 'qualifications of its employees.' The state authorities 'had possessed the pertinent information for 12 years,' and in any event the questions put to Slochower by the committee were 'wholly unrelated' to his university functions. 350 U.S., at 558.
33
The elements of the holding in Slochower have subsequently been carefully considered on several occasions by this Court. See, e.g., Beilan v. Board of Public Education, School Dist. of Philadelphia, 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. Los Angeles County, 362 U.S. 1, 80 S.Ct. 527, 4 L.Ed.2d 494. These cases, when read with Slochower, make plain that so long as state authorities do not derive any imputation of guilt from a claim of the privilege, they may in the course of a bona fide assessment of an employee's fitness for public employment require that the employee disclose information reasonably related to his fitness, and may order his discharge if he declines. Identical principles have been applied by this Court to applicants for admission to the bar who have refused to produce information pertinent to their professional and moral qualifications. Konigsberg v. State Bar of California, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105; In re Anastaplo, 366 U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135. In sum, all these cases adopted principles under the Fourteenth Amendment which are plainly congruent with those applied in Orloff v. Willoughby, supra, and other federal cases to Fifth Amendment claims.
34
The petitioner here does not contend, and the plurality opinion does not suggest, that the state courts have derived any inference of guilt from petitioner's claim of the privilege. The state courts have expressly disclaimed all such inferences. 24 A.D.2d 653, 654. Nor is it suggested that the proceedings against petitioner were not an effort in good faith to assess his qualifications for continued practice in New York, or that the information sought from petitioner was not reasonably relevant to those qualifications. It would therefore follow that under the construction consistently given by this Court both to the privilege under the Fifth Amendment and to the Due Process Clause of the Fourteenth Amendment, petitioner's disbarment is constitutionally permissible.
35
The plurality opinion does not pause either to acknowledge the previous handling of these issues or to explain why the privilege must now be supposed to forbid all consequences which may result from privileged silence. This is scarcely surprising, for the plurality opinion would create a novel and entirely unnecessary extension of the privilege which would exceed the needs of the privilege's purpose and seriously inhibit the protection of other public interests. The petitioner was not denied his privilege against self-incrimination, nor was he penalized for its use; he was denied his authority to practice law within the State of New York by reason of his failure to satisfy valid obligations imposed by the State as a condition of that authority. The only hazard in this process to the integrity of the privilege is the possibility that it might induce involuntary disclosures of incriminating materials; the sanction precisely calculated to eliminate that hazard is to exclude the use by prosecuting authorities of such materials and of their fruits. This Court has, upon proof of involuntariness, consistently forbidden their use since Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682, and now, as my Brother WHITE has emphasized, the plurality has intensified this protection still further with the broad prohibitory rule it has announced today in Garrity v. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562. It is true that this Court has on occasion gone a step further, and forbidden the practices likely to produce involuntary disclosures, but those cases are readily distinguishable. They have uniformly involved either situations in which the entire process was thought both to present excessive risks of coercion and to be foreign to our accusatorial system, as in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, or situations in which the only possible purpose of the practice was thought to be to penalize the accused for his use of the constitutional privilege, as in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. Both situations are plainly remote from that in issue here. None of the reasons thought to require the prohibitions established in those cases have any relevance in the situation now before us; nothing in New York's efforts in good faith to assure the integrity of its judicial system destroys, inhibits, or even minimizes the petitioner's constitutional privilege. There is therefore no need to speculate whether lawyers, or those in any other profession or occupation, have waived in some unspecified fashion a measure of the protection afforded by the constitutional privilege; it suffices that the State is earnestly concerned with an urgent public interest, and that it has selected methods for the pursuit of that interest which do not prevent attainment of the privilege's purposes.
36
I think it manifest that this Court is required neither by the logic of the privilege against self-incrimination nor by previous authority to invalidate these state rules, and thus to overturn the disbarment of the petitioner. Today's application of the privilege serves only to hamper appropriate protection of other fundamental public values.5
37
In view of these conclusions, I find it unnecessary to reach the alternative basis of the Court of Appeals' decision, the 'required records doctrine.' See Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787.
38
I would affirm the judgment of djQ Mr. Justice WHITE, dissenting.
39
In No. 13, Garrity v. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562, the Court apparently holds that in every imaginable circumstance the threat of discharge issued by one public officer to another will be impermissible compulsion sufficient to render subsequent answers to questions inadmissible in a criminal proceeding. I would agree that in some, if not in most, cases this would be the proper result. But the circumstances of such confrontations are of infinite variety. Rather than the Court's inflexible, per se rule, the matter should be decided on the facts of each particular case. In the situation before us now, I agree with my Brother HARLAN that the findings of the two courts below should not be overturned.
40
However that may be, with Garrity on the books, the Court compounds its error in Spevack v. Klein, No. 62, 385 U.S. 511, 87 S.Ct. 625, 14 L.Ed.2d 574. The petitioner in that case refused to testify and to produce any of his records. He incriminated himself in no way whatsoever. The Court nevertheless holds that he may not be disbarred for his refusal to do so. Such a rule would seem justifiable only on the ground that it is an essential measure to protect against self-incrimination—to prevent what may well be a successful attempt to elicit incriminating admissions. But Garrity excludes such statements, and their fruits, from a criminal proceeding and therefore frustrates in advance any effort to compel admissions which could be used to obtain a criminal conviction. I therefore see little legal or practical basis in terms of the privilege against self-incrimination protected by the Fifth Amendment, for preventing the discharge of a public employee or the disbarment of a lawyer who refuses to talk about the performance of his public duty.*
41
In Murphy v. Waterfront Comm., 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678, the Court held that 'a state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him.' 378 U.S., at 79, 84 S.Ct. 1594, 1609. To implement this holding the Court further ruled that the Federal Government would be constitutionally prohibited from making any such use of compelled testimony and its fruits. This holding was based on the desirability of accommodating the interests of the State and the Federal Government in investigating and prosecuting crime.
42
A similar accommodation should be made here, although the multiple interests involved are those of the State alone. The majority does not deny that the State and its citizens have a legitimate interest in ridding themselves of faithless officers. Admittedly, however, in attempting to determine the present qualifications of an employee by consultation with the employee himself, the State may ask for information which, if given, would not only result in a discharge but would be very useful evidence in a criminal proceeding. Garrity, in my view, protects against the latter possibility. Consequently, I see no reason for refusing to permit the State to pursue its other valid interest and to discharge an employee who refuses to cooperate in the State's effort to determine his qualifications for continued employment.
43
In my view, Spevack was properly disbarred. With all due respect, I therefore dissent.
1
'Order affirmed on the authority of Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d 156, and on the further ground that the Fifth Amendment privilege does not apply to a demand, not for oral testimony, but that an attorney produce records required by law to be kept by him. Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453; Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787.' 16 N.Y.2d 1048, 1050, 266 N.Y.S.2d 126, 127, 213 N.E.2d 457—458.
2
Kimm v. Rosenberg, 363 U.S. 405, 80 S.Ct. 1139, 4 L.Ed.2d 1299, much relied on here, was a five-to-four decision the other way and accurately reflected the pre-Malloy v. Hogan, construction of the Fifth Amendment. We do not stop to reexamine all the other prior decisions of that vintage to determine which of them, if any, would be decided the other way because of 'the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty * * * for such silence,' as declared in Malloy v. Hogan, supra, 378 U.S. at 8, 84 S.Ct. 1493. (Italics added.)
3
Whether a policeman, who invokes the privilege when his conduct as a police officer is questioned in disciplinary proceedings, may be discharged for refusing to testify is a question we did not reach.
4
Rule 5 of the Special Rules of the Second Dept., Appellate Division. Rule 5 was subsequently amended and renumbered as Special Rule IV(6). See Civil Practice Annual of New York 9—24 (1964).
5
Counsel for respondent conceded on oral argument that the subpoena was broader than Rule 5:
'Q. Is this subpoena coextensive with the provisions of the order about keeping the financial records or does the subpoena go beyond?
'A. I would say in my judgment it goes beyond. * * * There is room for reasonable argument that some of the items called for in the subpoena might perhaps be argued to not come within the required records I am talking about.
'Q. Would you mind relating those to us? Tell us what those are. * * * Cash disbursements?
'A. I would say do come under the records. * * * I would exclude as not coming within the statute the federal and state tax returns for example. * * *
'Q. How about worksheets * * *?
'A. Worksheets? Out. * * *
'Q. You mean all of item 12 * * * would be out?
'A. Item 12—copies of federal and state tax returns, accountants' worksheets, and all other * * * I do not include them.
'Q. They would all be outside the rules?
'A. Yes.
'Q. But the demand was for records beyond the records that he was required to keep.
'A. (T)he New York Court of Appeals, speaking for the State of New York, says these are required records.
'Q. I suppose that if he produced just the records that were required—that he was required to keep—that that might very well constitute a waiver as to other records.
'A. No, no it would not. * * *
'Q. Why not?
'A. Because if the other records were held not to come within the required records doctrine he would have the privilege to do that, but he has no privilege.
'Q. I am not sure. Are you sure about that? * * * I would say that the common understanding is that if he produces some of the records relating to a given subject matter, that is a waiver of privilege as to the balance of the records relating to the subject matter. Am I wrong about that?
'A. I would not agree with that. It is an argument that could be made but I would disagree with it for this reason. Under the doctrine of Shapiro v. United States, he has no Fifth Amendment privilege as to records that are required to be kept. He does have Fifth Amendment privilege as to records he is not required to keep and also as to refusal to give oral testimony.'
1
No claim has been made either here or in the state courts that the underlying facts representing petitioner's alleged conduct were not such as to entitle him to claim the privilege against self-incrimination. We therefore deal with the case on the premise that his claim of privilege was properly asserted.
2
The history of these efforts is outlined in Cohen, A History of the English Bar and Attornatus to 1450, 277 et seq., 2 Holdsworth, A History of English Law 317, 504 et seq.; 6 id., 431 et seq.
3
These efforts are traced in Warren, History of the American Bar, passim.
4
Evidences of this principle may be found in the opinions of this Court. See, e.g., Ex parte Bradley, 7 Wall. 364, 19 L.Ed. 214; Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.
5
It should be noted that the principle that a license or status may be denied to one who refuses, under the shelter of the constitutional privilege, to disclose information pertinent to that status or privilege, has been adopted in a variety of situations by statute. See, e.g., 12 U.S.C. § 484; 47 U.S.C. §§ 308(b), 312(a)(4); 5 U.S.C. § 2283.
*
The opinion of my Brother DOUGLAS professes not to resolve whether policemen may be discharged for refusing to cooperate with an investigation into alleged misconduct. However, the reasoning used to reach his result in the case of lawyers would seemingly apply with equal persuasiveness in the case of public employees.
| 01
|
385 U.S. 493
87 S.Ct. 616
17 L.Ed.2d 562
Edward J. GARRITY et al., Appellants,v.STATE OF NEW JERSEY.
No. 13.
Argued Nov. 10, 1966.
Decided Jan. 16, 1967.
Daniel L. O'Connor, Washington, D.C., for appellants.
Alan B. Handler, Newark, N.J., for appellee.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Appellants were police officers in certain New Jersey boroughs. The Supreme Court of New Jersey ordered that alleged irregularities in handling cases in the municipal courts of those boroughs be investigated by the Attorney General, invested him with broad powers of inquiry and investigation, and directed him to make a report to the court. The matters investigated concerned alleged fixing of traffic tickets.
2
Before being questioned, each appellant was warned (1) that anything he said might be used against him in any state criminal proceeding; (2) that he had the privilege to refuse to answer if the disclosure would tend to incriminate him; but (3) that if he refused to answer he would be subject to removal from office.1
3
Appellants answered the questions. No immunity was granted, as there is no immunity statute applicable in these circumstances. Over their objections, some of the answers given were used in subsequent prosecutions for conspiracy to obstruct the administration of the traffic laws. Appellants were convicted and their convictions were sustained over their protests that their statements were coerced,2 by reason of the fact that, if they refused to answer, they could lose their positions with the police department. See State v. Naglee, 44 N.J. 209, 207 A.2d 689; 44 N.J. 259, 208 A.2d 146.
4
We postponed the question of jurisdiction to a hearing on the merits. 383 U.S. 941, 86 S.Ct. 941, 16 L.Ed.2d 205. The statute whose validity was sought to be 'drawn in question,' 28 U.S.C. § 1257(2), was the forfeiture statute.3 But the New Jersey Supreme Court refused to reach that question (44 N.J., at 223, 207 A.2d, at 697), deeming the voluntariness of the statements as the only issue presented. Id., at 220—222, 207 A.2d at 695—696. The statute is therefore too tangentially involved to satisfy 28 U.S.C. § 1257(2), for the only bearing it had was whether, valid or not, the fear of being discharged under it for refusal to answer on the one hand and the fear of self-incrimination on the other was "a choice between the rock and the whirlpool"4 which made the statements products of coercion in violation of the Fourteenth Amendment. We therefore dismiss the appeal, treat the papers as a petition for certiorari (28 U.S.C. § 2103), grant the petition and proceed to the merits.
5
We agree with the New Jersey Supreme Court that the forfeiture-of-office statute is relevant here only for the bearing it has on the voluntary character of the statements used to convict petitioners in their criminal prosecutions.
6
The choice imposed on petitioners was one between self-incrimination or job forfeiture. Coercion that vitiates a confession under Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716, and related cases can be 'mental as well as physical'; '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. Subtle pressures (Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948; Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513) may be as telling as coarse and vulgar ones. The question is whether the accused was deprived of his '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.
7
We adhere to Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, a civil forfeiture action against property. A statute offered the owner an election between producing a document or forfeiture of the goods at issue in the proceeding. This was held to be a form of compulsion in violation of both the Fifth Amendment and the Fourth Amendment. Id., at 634—635, 6 S.Ct. It is that principle that we adhere to and apply in Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574.
8
The choice given petitioners was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent. That practice, like interrogation practices we reviewed in Miranda v. State of Arizona, 384 U.S. 436, 464—465, 86 S.Ct. 1602, 1623, 16 L.Ed.2d 694, is 'likely to exert such pressure upon an individual as to disable him from making a free and rational choice.' We think the statements were infected by the coercion5 inherent in this scheme of questioning and cannot be sustained as voluntary under our prior decisions.
9
It is said that there was a 'waiver.' That, however, is a federal question for us to decide. Union Pac. R.R. Co. v. Public Service Comm., 248 U.S. 67, 69—70, 39 S.Ct. 24, 25, 63 L.Ed. 131. Stevens v. Marks, supra, 383 U.S. 234, 243—244, 86 S.Ct. 788, 793. The Court in Union Pac. R.R. Co. v. Public Service Comm., supra, in speaking of a certificate exacted under protest and in violation of the Commerce Clause, said:
10
'Were it otherwise, as conduct under duress involves a choice, it always would be possible for a State to impose an unconstitutional burden by the threat of penalties worse than it in case of a failure to accept it, and then to declare the acceptance voluntary * * *.' Id., 248 U.S., at 70, 39 S.Ct. at 25.
11
Where the choice is 'between the rock and the whirlpool,' duress is inherent in deciding to 'waive' one or the other.
12
'It always is for the interest of a party under duress to choose the lesser of two evils. But the fact that a choice was made according to interest does not exclude duress. It is the characteristic of duress properly so called.' Ibid.
13
In that case appellant paid under protest. In these cases also, though petitioners succumbed to compulsion, they preserved their objections, raising them at the earliest possible point. Cf. Abie State Bank v. Bryan, 282 U.S. 765, 776, 51 S.Ct. 252, 256, 75 L.Ed. 690. The cases are therefore quite different from the situation where one who is anxious to make a clean breast of the whole affair volunteers the information.
14
Mr. Justice Holmes in McAuliffe v. New Bedford, 155 Mass. 216, 29 N.E. 517, stated a dictum on which New Jersey heavily relies:
15
'The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. There are few employments for hire in which the servant does not agree to suspend his constitutional right of free speech as well as of idleness by the implied terms of his contract. The servant cannot complain, as he takes the employment on the terms which are offered him. On the same principle the city may impose any reasonable condition upon holding offices within its control.' Id., at 220, 29 N.E., at 517—518.
16
The question in this case, however, is not cognizable in those terms. Our question is whether a State, contrary to the requirement of the Fourteenth Amendment, can use the threat of discharge to secure incriminatory evidence against an employee.
17
We held in Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692, that a public school teacher could not be discharged merely because he had invoked the Fifth Amendment privilege against self-incrimination when questioned by a congressional committee:
18
'The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury. * * * The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.' Id., at 557—558, 76 S.Ct. at 641.
19
We conclude that policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.
20
There are rights of constitutional stature whose exercise a State may not condition by the exaction of a price. Engaging in interstate commerce is one. Western Union Tel. Co. v. State of Kansas, 216 U.S. 1, 30 S.Ct. 190, 54 L.Ed. 355. Resort to the federal courts in diversity of citizenship cases is another. Terral v. Burke Constr. Co., 257 U.S. 529, 42 S.Ct. 188, 66 L.Ed. 352. Assertion of a First Amendment right is still another. Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Murdock v. Com. of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292; Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430; Lamont v. Postmaster General, 381 U.S. 301, 305—306, 85 S.Ct. 1493, 1495—1496, 14 L.Ed.2d 398. The imposition of a burden on the exercise of a Twenty-fourth Amendment right is also banned. Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50. We now hold the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.
21
Reversed.
22
Mr. Justice HARLAN, whom Mr. Justice CLARK and Mr. Justice STEWART join, dissenting.
23
The majority opinion here and the plurality opinion in Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574, stem from fundamental misconceptions about the logic and necessities of the constitutional privilege against self-incrimination. I fear that these opinions will seriously and quite needlessly hinder the protection of other important public values. I must dissent here, as I do in Spevack.
24
The majority employs a curious mixture of doctrines to invalidate these convictions, and I confess to difficulty in perceiving the intended relationships among the various segments of its opinion. I gather that the majority believes that the possibility that these policemen might have been discharged had they refused to provide information pertinent to their public responsibilities is an impermissible 'condition' imposed by New Jersey upon petitioners' privilege against self-incrimination. From this premise the majority draws the conclusion that the statements obtained from petitioners after a warning that discharge was possible were inadmissible. Evidently recognizing the weakness of its conclusion, the majority attempts to bring to its support illustrations from the lengthy series of cases in which this Court, in light of all the relevant circumstances, has adjudged the voluntariness in fact of statements obtained from accused persons.
25
The majority is apparently engaged in the delicate task of riding two unruly horses at once: it is presumably arguing simultaneously that the statements were involuntary as a matter of fact, in the same fashion that the statements in Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716, and Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513, were thought to be involuntary, and that the statements were inadmissible as a matter of law, on the premise that they were products of an impermissible condition imposed on the constitutional privilege. These are very different contentions and require separate replies, but in my opinion both contentions are plainly mistaken, for reasons that follow.
I.
26
I turn first to the suggestion that these statements were involuntary in fact. An assessment of the voluntariness of the various statements in issue here requires a more comprehensive examination of the pertinent circumstances than the majority has undertaken.
27
The petitioners were at all material times policemen in the boroughs of Bellmawr and Barrington, New Jersey. Garrity was Bellmawr's chief of police and Virtue one of its police officers; Holroyd, Elwell, and Murray were police officers in Barrington. Another defendant below, Mrs. Naglee, the clerk of Bellmawr's municipal court, has since died. In June 1961 the New Jersey Supreme Court sua sponte directed the State's Attorney General to investigate reports of traffic ticket fixing in Bellmawr and Barrington. Subsequent investigations produced evidence that the petitioners, in separate conspiracies, had falsified municipal court records, altered traffic tickets, and diverted moneys produced from bail and fines to unauthorized purposes. In the course of these investigations the State obtained two sworn statements from each of the petitioners; portions of those statements were admitted at trial. The petitioners were convicted in two separate trials of conspiracy to obstruct the proper administration of the state motor traffic laws, the cases being now consolidated for purposes of our review. The Supreme Court of New Jersey affirmed all the convictions.
28
The first statements were taken from the petitioners by the State's Deputy Attorney General in August and November 1961. All of the usual indicia of duress are wholly absent. As the state court noted, there was 'no physical coercion, no overbearing tactics of psychological persuasion, no lengthy incommunicado detention, or efforts to humiliate or ridicule the defendants.' 44 N.J. 209, 220, 207 A.2d 689, 695. The state court found no evidence that any of the petitioners were reluctant to offer statements, and concluded that the interrogations were conducted with a 'high degree of civility and restraint.' Ibid.
29
These conclusions are fully substantiated by the record. The statements of the Bellmawr petitioners were taken in a room in the local firehouse, for which Chief Garrity himself had made arrangements. None of the petitioners were in custody before or after the depositions were taken; each apparently continued to pursue his ordinary duties as a public official of the community. The statements were recorded by a court stenographer, who testified that he witnessed no indications of unwillingness or even significant hesitation on the part of any of the petitioners. The Bellmawr petitioners did not have counsel present, but the Deputy Attorney General testified without contradiction that Garrity had informed him as they strolled between Garrity's office and the firehouse that he had arranged for counsel, but thought that none would be required at that stage. The interrogations were not excessively lengthy, and reasonable efforts were made to assure the physical comfort of the witnesses. Mrs. Naglee, the clerk of the Bellmawr municipal court, who was known to suffer from a heart ailment, was assured that questioning would cease if she felt any discomfort.
30
The circumstances in which the depositions of the Barrington petitioners were taken are less certain, for the New Jersey Supreme Court found that there was an informal agreement at the Barrington trial that the defendants would argue simply that the possibility of dismissal made the statements 'involuntary as a matter of law.' The defense did not contend that the statements were the result of physical or mental coercion, or that the wills of the Barrington petitioners were overborne. Accordingly, the State was never obliged to offer evidence of the voluntariness in fact of the statements. We are, however, informed that the three Barrington petitioners had counsel present as their depositions were taken. Insofar as the majority suggests that the Barrington statements are involuntary in fact, in the fashion of Chambers or Haynes, it has introduced a factual contention never urged by the Barrington petitioners and never considered by the courts of New Jersey.
31
As interrogation commenced, each of the petitioners was sworn, carefully informed that he need not give any information, reminded that any information given might be used in a subsequent criminal prosecution, and warned that as a police officer he was subject to a proceeding to discharge him if he failed to provide information relevant to his public responsibilities. The cautionary statements varied slightly, but all, except that given to Mrs. Naglee, included each of the three warnings.1 Mrs. Naglee was not told that she could be removed from her position at the court if she failed to give information pertinent to the discharge of her duties. All of the petitioners consented to give statements, none displayed any significant hesitation, and none suggested that the decision to offer information was motivated by the possibility of discharge.
32
A second statement was obtained from each of the petitioners in September and December 1962. These statements were not materially different in content or circumstances from the first. The only significant distinction was that the interrogator did not advert even obliquely to any possibility of dismissal. All the petitioners were cautioned that they were entitled to remain silent, and there was no evidence whatever of physical or mental coercion.
33
All of the petitioners testified at trial, and gave evidence essentially consistent with the statements taken from them. At a preliminary hearing conducted at the Bellmawr trial to determine the voluntariness of the statements, the Bellmawr petitioners offered no evidence beyond proof of the warning given them.
34
The standards employed by the Court to assess the voluntariness of an accused's statements have reflected a number of values, and thus have emphasized a variety of factual criteria. The criteria employed have included threats of imminet danger, Payne v. State of Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975, physical deprivations, Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948, repeated or extended interrogation, Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 47i, 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, length and illegality of detention under state law, Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513, individual weakness or incapacity, Lynumn v. State of Illinois, 372 U.S. 528, and the adequacy of warnings of constitutional rights, Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895. Whatever the criteria employed, the duty of the Court has been 'to examine the entire record,' and thereby to determine whether the accused's will 'was overborne by the sustained pressures upon him.' Davis v. State of North Carolina, 384 U.S. 737, 741, 739, 86 S.Ct. 1761, 1764, 1763.
35
It would be difficult to imagine interrogations to which these criteria of duress were more completely inapplicable, or in which the requirements which have subsequently been imposed by this Court on police questioning were more thoroughly satisfied. Each of the petitioners received a complete and explicit reminder of his constitutional privilege. Three of the petitioners had counsel present; at least a fourth had consulted counsel but freely determined that his presence was unnecessary. These petitioners were not in any fashion 'swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion * * *.' Miranda v. State of Arizona, 384 U.S. 436, 461, 86 S.Ct. 1602, 1621. I think it manifest that, under the standards developed by this Court to assess voluntariness, there is no basis for saying that any of these statements were made involuntarily.
II.
36
The issue remaining is whether the statements were inadmissible because they were 'involuntary as a matter of law,' in that they were given after a warning that New Jersey policemen may be discharged for failure to provide information pertinent to their public responsibilities. What is really involved on this score, however, is not in truth a question of 'voluntariness' at all, but rather whether the condition imposed by the State on the exercise of the privilege against self-incrimination, namely dismissal from office, in this instance serves in itself to render the statements inadmissible. Absent evidence of involuntariness in fact, the admissibility of these statements thus hinges on the validity of the consequence which the State acknowledged might have resulted if the statements had not been given. If the consequence is constitutionally permissible, there can surely be no objection if the State cautions the witness that it may follow if he remains silent. If both the consequence and the warning are constitutionally permissible, a witness is obliged, in order to prevent the use of his statements against him in a criminal prosecution, to prove under the standards established since Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682, that as a matter of fact the statements were involuntarily made. The central issues here are therefore identical to those presented in Spevack v. Klein, supra: whether consequences may properly be permitted to result to a claimant after his invocation of the constitutional privilege, and if so, whether the consequence in question is permissible. For reasons which I have stated in Spevack v. Klein, in my view nothing in the logic or purposes of the privilege demands that all consequences which may result from a witness' silence be forbidden merely because that silence is privileged. The validity of a consequence depends both upon the hazards, if any, it presents to the integrity of the privilege and upon the urgency of the public interests it is designed to protect.
37
It can hardly be denied that New Jersey is permitted by the Constitution to establish reasonable qualifications and standards of conduct for its public employees. Nor can it be said that it is arbitrary or unreasonable for New Jersey to insist that its employees furnish the appropriate authorities with information pertinent to their employment. Cf. Beilan v. Board of Public Education, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414; Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692. Finally, it is surely plain that New Jersey may in particular require its employees to assist in the prevention and detection of unlawful activities by officers of the state government. The urgency of these requirements is the more obvious here, where the conduct in question is that of officials directly entrusted with the administration of justice. The importance for our systems of justice of the integrity of local police forces can scarcely be exaggerated. Thus, it need only be recalled that this Court itself has often intervened in state criminal prosecutions precisely on the ground that this might encourage high standards of police behavior. See, e.g., Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192; Miranda v. State of Arizona, supra. It must be concluded, therefore, that the sanction at issue here is reasonably calculated to serve the most basic interests of the citizens of New Jersey.
38
The final question is the hazard, if any, which this sanction presents to the constitutional privilege. The purposes for which, and the circumstances in which, an officer's discharge might be ordered under New Jersey law plainly may vary. It is of course possible that discharge might in a given case be predicated on an imputation of guilt drawn from the use of the privilege, as was thought by this Court to have occurred in Slochower v. Board of Higher Education, supra. But from our vantage point, it would be quite improper to assume that New Jersey will employ these procedures for purposes other than to assess in good faith an employee's continued fitness for public employment. This Court, when a state procedure for investigating the loyalty and fitness of public employees might result either in the Slochower situation or in an assessment in good faith of an employee, has until today consistently paused to examine the actual circumstances of each case. Beilan v. Board of Public Education, supra; Nelson v. Los Angeles County, 362 U.S. 1, 80 S.Ct. 527, 4 L.Ed.2d 494. I am unable to see any justification for the majority's abandonment of that process; it is well calculated both to protect the essential purposes of the privilege and to guarantee the most generous opportunities for the pursuit of other public values. The majority's broad prohibition, on the other hand, extends the scope of the privilege beyond its essential purposes, and seriously hampers the protection of other important values. Despite the majority's disclaimer, it is quite plain that the logic of its prohibiting rule would in this situation prevent the discharge of these policemen. It would therefore entirely forbid a sanction which presents, at least on its face, no hazard to the purposes of the constitutional privilege, and which may reasonably be expected to serve important public interests. We are not entitled to assume that discharges will be used either to vindicate impermissible inferences of guilt or to penalize privileged silence, but must instead presume that this procedure is only intended and will only be used to establish and enforce standards of conduct for public employees.2 As such, it does not minimize or endanger the petitioners' constitutional privilege against self-incrimination.3
39
I would therefore conclude that the sanction provided by the State is constitutionally permissible. From this, it surely follows that the warning given of the possibility of discharge is constitutionally unobjectionable. Given the constitutionality both of the sanction and of the warning of its application, the petitioners would be constitutionally entitled to exclude the use of their statements as evidence in a criminal prosecution against them only if it is found that the statements were, when given, involuntary in fact. For the reasons stated above, I cannot agree that these statements were involuntary in fact.
40
I would affirm the judgments of the Supreme Court of New Jersey.
1
'Any person holding or who has held any elective or appointive public office, position or employment (whether State, county or municipal), who refuses to testify upon matters relating to the office, position or employment in any criminal proceeding wherein he is a defendant or is called as a witness on behalf of the prosecution, upon the ground that his answer may tend to incriminate him or compel him to be a witness against himself or refuses to waive immunity when called by a grand jury to testify thereon or who willfully refuses or fails to appear before any court, commission or body of this state which has the right to inquire under oath upon matters relating to the office, position or employment of such person or who, having been sworn, refuses to testify or to answer any material question upon the ground that his answer may tend to incriminate him or compel him to be a witness against himself, shall, if holding elective or public office, position or employment, be removed therefrom or shall thereby forfeit his office, position or employment and any vested or future right of tenure or pension granted to him by any law of this State provided the inquiry relates to a matter which occurred or arose within the preceding five years. Any person so forfeiting his office, position or employment shall not thereafter be eligible for election or appointment to any public office, position or employment in this State.' N.J.Rev.Stat. § 2A:81—17.1 (Supp.1965), N.J.S.A.
2
At the trial the court excused the jury and conducted a hearing to determine whether, inter alia, the statements were voluntary. The State offered witnesses who testified as to the manner in which the statements were taken; the appellants did not testify at that hearing. The court held the statements to be voluntary.
3
N. 1, supra.
4
Stevens v. Marks, 383 U.S. 234, 243, 86 S.Ct. 788, 793, 15 L.Ed.2d 724, quoting from Frost Trucking Co. v. Railroad Comm'n, 271 U.S. 583, 593, 46 S.Ct. 605, 607, 70 L.Ed. 1101.
5
Cf. Lamm, The 5th Amendment and Its Equivalent in Jewish Law, 17 Decalogue Jour. 1 (Jan.—Feb.1967):
'It should be pointed out, at the very outset, that the Halakhah does not distinguish between voluntary and forced confessions, for reasons which will be discussed later. And it is here that one of the basic differences between Constitutional and Talmudic Law arises. According to the Constitution, a man cannot be compelled to testify against himself. The provision against self-incrimination is a privilege of which a citizen may or may not avail himself, as he wishes. The Halakhah, however, does not permit self-incriminating testimony. It is inadmissible, even if voluntarily offered. Confession, in other than a religious context, or financial cases completely free from any traces of criminality, is simply not an instrument of the Law. The issue, then, is not compulsion, but the whole idea of legal confession.
'The Halakhah, then, is obviously concerned with protecting the confessant from his own aberrations which manifest themselves, either as completely fabricated confessions, or as exaggerations of the real facts. * * * While certainly not all, or even most criminal confessions are directly attributable, in whole or part, to the Death Instinct, the Halakhah is sufficiently concerned with the minority of instances, where such is the case, to disqualify all criminal confessions and to discard confession as a legal instrument. Its function is to ensure the total victory of the Life Instinct over its omnipresent antagonist. Such are the conclusions to be drawn from Maimonides' interpretation of the Halakhah's equivalent of the Fifth Amendment.
'In summary, therefore, the Constitutional ruling on self-incrimination concerns only forced confessions, and its restricted character is a result of its historical evolution as a civilized protest against the use of torture in extorting confessions. The Halakhic ruling, however, is much broader and discards confessions in toto, and this because of its psychological insight and its concern for saving man from his own destructive inclinations.' Id., at 10, 12.
1
The warning given to Chief Garrity is typical. 'I want to advise you that anything you say must be said of your own free will and accord without any threats or promises or coercion, and anything you say may be, of course, used against you or any other person in any subsequent criminal proceedings in the courts of our state.
'You do have, under our law, as you probably know, a privilege to refuse to make any disclosure which may tend to incriminate you. If you make a disclosure with knowledge of this right or privilege, voluntarily, you thereby waive that right or privilege in relation to any other questions which I might put to you relevant to such disclosure in this investigation.
'This right or privilege which you have is somewhat limited to the extent that you as a police officer under the laws of our state, may be subjected to a proceeding to have you removed from office if you refuse to answer a question put to you under oath pertaining to your office or your function within that office. It doesn't mean, however, you can't exercise the right. You do have the right.'
A. 'No, I will cooperate.'
Q. 'Understanding this, are you willing to proceed at this time and answer any questions?'
A. 'Yes.'
2
The legislative history of N.J.Rev.Stat.2A:81—17.1, N.J.S.A. provides nothing which clearly indicates the purposes of the statute, beyond what is to be inferred from its face. In any event, the New Jersey Supreme Court noted below that the State would be entitled, even without the statutory authorization, to discharge state employees who declined to provide information relevant to their official responsibilities. There is therefore nothing to which this Court could properly now look to forecast the purposes for which or circumstances in which New Jersey might discharge those who have invoked the constitutional privilege.
3
The late Judge Jerome Frank thus once noted, in the course of a spirited defense of the privilege, that it would be entirely permissible to discharge police officers who decline, on grounds of the privilege, to disclose information pertinent to their public responsibilities. Judge Frank quoted the following with approval:
"Duty required them to answer. Privilege permitted them to refuse to answer. They chose to exercise the privilege, but the exercise of such privilege was wholly inconsistent with their duty as police officers. They claim that they had a constitutional right to refuse to answer under the circumstances, but * * * they had no constitutional right to remain police officers in the face of their clear violation of the duty imposed upon them.' Christal v. Police Commission of San Francisco'. Citing 33 Cal.App.2d 564, 92 P.2d 416. (Emphasis added by Judge Frank.) United States v. Field, 2 Cir., 193 F.2d 92, 106 (separate opinion).
| 01
|
385 U.S. 533
87 S.Ct. 637
17 L.Ed.2d 588
Ivan C. McLEOD, Regional Director of the Second Region, NLRBv.GENERAL ELECTRIC CO. et al. INTERNATIONAL UNION, ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO v. GENERAL ELECTRIC CO. et al.
Nos. 645, 774.
Jan. 16, 1967.
Solicitor General Marshall, Richard A. Posner, Arnold Ordman, Dominick L. Manoli and Norton J. Come, for Ivan C. McLeod.
Irving Abramson and Ruth Weyand, for International Union of Electrical, Radio & Machine Workers, AFL-CIO.
David L. Benetar, for General Electric Co.
PER CURIAM.
1
The petitions for certiorari are granted. The judgment of the Court of Appeals for the Second Circuit is set aside with direction to that court to enter a new judgment consistent with this opinion.
2
The Regional Director of the Second Region of the National Labor Relations Board issued a complaint and notice of hearing upon a charge filed by the International Union of Electrical, Radio & Machine Workers, AFL-CIO (IUE). The charge alleged that General Electric Company violated §§ 8(a)(1) and (5) of the National Labor Relations Act, as amended, 61 Stat. 140, 29 U.S.C. §§ 158(a)(1) and (5), in refusing to bargain upon the renewal of an expiring collective bargaining agreement because of 'the inclusion among the persons designated by the Union to represent it * * * of persons who also represented other labor organizations which engaged in collective bargaining with' the company. Pursuant to § 10(j) of the Act the Regional Director also obtained a temporary injunction in the District Court for the Southern District of New York restraining the company from '(f)ailing or refusing to meet, confer and bargain collectively in good faith with * * * (IUE) by declining to meet with the selected representatives of * * * (IUE) because of the presence of any representatives of other unions whom IUE and its constituent locals have invited to attend for the purpose of participating in the discussion and advising or consulting with IUE and its constituent locals.' The Court of Appeals for the Second Circuit reversed. 366 F.2d 847. Mr. Justice Harlan, 87 S.Ct. 5, 17 L.Ed.2d 45, stayed the Court of Appeals' judgment pending action on the petition for writ of certiorari filed in No. 645.
3
The District Court and the Court of Appeals differed regarding the proper standard which should be determinative of the right to injunctive relief under § 10(j). The District Court applied a dual test: (1) whether 'the impact upon the public interest is grave enough to justify swifter corrective action than the normal process of Board adjudication and court enforcement,' 257 F.Supp. 690, 708, and (2) 'whether the Board has 'reasonable cause to believe' that the accused party has been guilty of unfair labor practices.' 257 F.Supp., at 709. The Court of Appeals on the other hand considered the proper standard to be whether the Board had 'demonstrated that an injunction is necessary to preserve the status quo or to prevent any irreparable harm.' 366 F.2d, at 850.
4
We do not think it appropriate however to decide at this time the proper construction of § 10(j). For on October 14, 1966, after the decision of the Court of Appeals, the company and IUE agreed upon a three-year collective bargaining agreement to replace the expired contract. We think that the District Court should determine in the first instance the effect of this supervening event upon the appropriateness of injunctive relief. The controversy over the proper standard for injunctive relief is immaterial if such relief is now improper whichever standard is applied. We therefore dissolve the stay granted by Mr. Justice Harlan and set aside the judgment of the Court of Appeals with direction to enter a new judgment setting aside the order of the District Court and remanding to that court for such further proceedings as may be appropriate in light of the supervening event. See Calhoun v. Latimer, 377 U.S. 263, 84 S.Ct. 1235, 12 L.Ed.2d 288; Scranton v. Drew, 379 U.S. 40, 85 S.Ct. 207, 13 L.Ed.2d 107.
5
It is so ordered.
| 89
|
385 U.S. 630
87 S.Ct. 666
17 L.Ed.2d 656
Kalman J. BERENYI, Petitioner,v.DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE.
No. 66.
Argued Dec. 5 and 6, 1966.
Decided Jan. 23, 1967.
Leon B. Savetsky, New York City, for petitioner.
Robert S. Rifkind, New York City, for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
A provision of the Immigration and Nationality Act requires that an alien who applies for naturalization as a United States citizen must establish that during the five years preceding the filing of his petition he has been 'a person of good moral character.'1 Another provision specifies that no applicant may be found to be a person of good moral character who, within that period, 'has given false testimony for the purpose of obtaining any benefits' under the Act.2 The petitioner, an alien who entered this country from Hungary in 1956, filed a petition for naturalization in the United States District Court for the District of Massachusetts in 1962. At the final hearing the Attorney General appeared by counsel in opposition to the petition.3 Following this hearing the District Judge denied the petition, finding that the petitioner had testified falsely to facilitate his naturalization, and therefore could not, under the law, be found to be a person of good moral character within the statutory period.4 The Court of Appeals affirmed,5 and we granted certiorari.6
2
During the preparation of his application to file a petition for naturalization, the petitioner was asked the following question: 'Have you ever, in the United States or in any other place, (a) been a member of, or in any other way connected with, or associated with the Communist Party either directly, or indirectly through another organization, group, or person?' The petitioner, under oath, answered 'No.' On two subsequent occasions during the preliminary proceedings on his petition for naturalization, the petitioner again swore that he had never been a member of the Communist Party.
3
At the final hearing before the District Judge, the Government produced two witnesses whose testimony indicated that the petitioner had been a member of the Communist Party in Hungary. Dr. Pal Halasz stated that he had known the petitioner when they were both students at the University of Budapest Medical School and had seen the petitioner attend Communist Party meetings there on one or more occasions. While such meetings were sometimes open to persons who were not Party members, and Dr. Halasz was not sure that the petitioner was a Party member, his attendance at Party meetings gave Dr. Halasz the impression that the petitioner was a member. Dr. Gyorgy Kury related that he had attended a study group at the University in September 1948. These groups met to discuss Marxist-Leninist ideology, and students were required to attend regardless of Party membership. One student in each group was responsible for leading this discussion. Dr. Kury testified that, at the meeting in question, the petitioner introduced himself as a member of the Communist Party and the student leader responsible for the group's ideological education. Dr. Kury further testified that the petitioner had told the group that he had become a member of the Communist Party after Soviet troops had occupied Hungary in 1945.
4
The petitioner testified that he had never been a Party member or the ideological leader of any student discussion group. He related the heavy pressures on students at the University to attend Party functions and become members, and admitted that these pressures had led him to attend some open Party meetings as a nonmember, but added that he had not been an active participant at these meetings. The petitioner also emphasized his religious upbringing and other factors in his personal life which, he contended, made it unlikely that he would become a Party member. The petitioner's wife testified that he had never been a Party member, and four other witnesses stated that, while in Hungary and after his arrival in the United States, the petitioner had expressed his strong opposition to the Communist Party and the Communist regime in Hungary.
5
Basing his decision solely on his own evaluation of the testimony adduced at this hearing,7 the District Judge concluded that the petitioner had become a Party member in 1945 and had remained a member for an indefinite number of years, that the petitioner had attended meetings of the Party, and that he had instructed student study groups in Communist ideology. Accordingly, the court concluded that the petitioner had testified falsely in the preliminary naturalization proceedings, and denied his application for citizenship on the ground that he was, therefore, 'not a person of good moral character within the meaning of the Immigration and Nationality Act.'8
6
The petitioner asks us to reject as 'clearly erroneous' the factual conclusion about his Party membership reached by the District Judge and accepted by the Court of Appeals. In order to do so, we would be forced to disregard this Court's repeated pronouncements that it 'cannot undertake to review concurrent findings of fact by two courts below in the absence of a very obvious and exceptional showing of error.' E.g., Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 275, 69 S.Ct. 535, 538, 93 L.Ed. 672. For there was no 'very obvious and exceptional' error in the conclusion of the two courts below that the petitioner had been a member of the Communist Party. The testimony of Dr. Kury gave a concrete basis for this conclusion, and that of Dr. Halasz lent it further evidentiary support. The conclusion of the courts below is not inconsistent with the possibility that the petitioner may have harbored a strong opposition to the Party which he bared to his friends. For the petitioner may have merely joined the Party as a nominal member in deference to the strong pressures which the Party exerted on students to become members, pressures which several witnesses, including the petitioner himself, recited in detail.
7
The policy underlying the 'two-court' rule is obvious. This Court possesses no empirical expertise to set against the careful and reasonable conclusions of lower courts on purely factual issues. When, as here, resolution of the disputed factual issues turns largely on an assessment of the relative credibility of witnesses whose testimonial demeanor was observed only by the trial court, the rule has particular force. To be sure, this Court has not hesitated to undertake independent examination of factual issues when constitutional claims may depend on their resolution. See, e.g., Napue v. People of State of Illinois, 360 U.S. 264, 271 272, 79 S.Ct. 1173, 1178—1179, 3 L.Ed.2d 1217; Fiske v. State of Kansas, 274 U.S. 380, 385—386, 47 S.Ct. 655, 656—657, 71 L.Ed. 1108. Cf. Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374. But this exceptional doctrine has no application to the present case, for the petitioner makes no claim that any constitutional issues are involved here.
8
Different considerations do not govern merely because this is a naturalization case. When the Government seeks to strip a person of citizenship already acquired,9 or deport a resident alien and send him from our shores,10 it carries the heavy burden of proving its case by 'clear, unequivocal, and convincing evidence.'11 But when an alien seeks to obtain the privileges and benefits of citizenship, the shoe is on the other foot. He is the moving party, affirmatively asking the Government to endow him with all the advantages of citizenship. Because that status, once granted, cannot lightly be taken away, the Government has a strong and legitimate interest in ensuring that only qualified persons are granted citizenship. For these reasons, it has been universally accepted that the burden is on the alien applicant to show his eligibility for citizenship in every respect. This Court has often stated that doubts 'should be resolved in favor of the United States and against the claimant.' E.g., United States v. Macintosh, 283 U.S. 605, 626, 51 S.Ct. 570, 576, 75 L.Ed. 1302.
9
The petitioner points out that in deportation cases this Court has held that an alien may not be expelled from this country on the ground that he has been a member of the Communist Party unless his participation in the Party amounted to 'meaningful association.' Rowoldt v. Perfetto, 355 U.S. 115, 78 S.Ct. 180, 2 L.Ed.2d 140; Gastelum-Quinones v. Kennedy, 374 U.S. 469, 83 S.Ct. 1819, 10 L.Ed.2d 1013. He contends that the same rule should apply in the context of naturalization, and that the Government's proof in this case failed to establish 'meaningful association.' But the petitioner's application was not denied because of his Communist Party membership.12 It was denied because, under oath, he did not tell the truth. The petitioner was not asked whether he had been 'meaningfully associated' with the Communist Party. Nor was the inquiry limited to party membership. He was posed the much broader question whether he had ever 'been a member of, or in any other way connected with, or associated with the Communist Party either directly, or indirectly through another organization, group, or person.' The District Court could rightly have found that the petitioner had not told the truth when he answered this question in the negative if he had not been an actual member, or his membership had been only nominal.
10
Even assuming that an alien may be denied citizenship on the statutory ground of Party membership only when 'meaningful association' is shown, the broader question asked of the petitioner was certainly material and relevant. The Government is entitled to know of any facts that may bear on an applicant's statutory eligibility for citizenship, so that it may pursue leads and make further investigation if doubts are raised. The petitioner has never indicated that he was confused or misled by the scope of the question—that he believed at the time it was asked that the question reached only 'meaningful association'.
11
We cannot say that the District Court was wrong in finding that the petitioner had failed to tell the truth. It follows that the Court of Appeals was not in error in declining to upset that finding.
12
Affirmed.
13
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice BRENNAN concur, dissenting.
14
In this case we are confronted with the spectacle of a person admittedly loyal to the United States, and concededly opposed to communism being denied naturalization because the District Court found that he was not a 'person of good moral character.' This finding was in turn based upon a subsidiary finding that petitioner had, in the remote past, been a member of the Hungarian Communist Party, and had therefore lied when he stated that he had never been a member of that Party. The 'evidence' upon which the crucial finding of Communist membership was based was slim, ambiguous, and equivocal; and when compared with the overwhelming evidence adduced by petitioner, it is apparent that the finding was clearly erroneous.
15
The Government's case was dependent upon the testimony of two witnesses. Dr. Pal Halasz testified that he had attended medical school in Hungary with petitioner. He did not attend classes with petitioner since he was a number of years behind. The total enrollment of the school was between 1,800 and 2,000. He did not know petitioner socially, but did talk to petitioner and 'several times' petitioner helped Halasz with his studies. Halasz was a member of the Communist Party, he 'believed' between 1948 and 1956. He could not say how often he attended meetings.1 According to Halasz, he saw petitioner at some Communist Party meetings, but he did not know how often. He 'thought' it was more than once. He did not know what transpired at the meetings, nor did he know whether the particular meetings were open to nonparty members or were open to all. Most of the meetings were open to nonparty members and nonmembers were encouraged to attend. If they did not, they took the risk of retribution. When nonmembers attended the meetings, they were not identified as nonmembers. Halasz had never seen petitioner display a membership card, although he had been the doorkeeper at several meetings. He admitted that petitioner was not a 'Communist in heart,' and that if he said something with respect to communism 'it wasn't for the favor of the Communists.' He assumed that petitioner was a party member because he had seen him at some meetings.
16
The second government witness was Dr. Gyorgy Kury who had been in the same medical class with petitioner for one year. The most that this witness could come up with was that he had attended an ideological indoctrination session required to be attended by all students, members and nonmembers alike. At that session, he heard petitioner state that he was the session leader and that he had joined the party after the Soviet occupation of Hungary in 1945. He did not remember who had attended the meeting or exactly what petitioner had said. That was his only contact with petitioner. Except for this one occasion, Kury had never heard petitioner say that he was or had been a Communist.
17
This was the only evidence the Government adduced to show that petitioner had been a member of the Communist Party. The abundance of evidence produced by petitioner can only be briefly summarized. Petitioner unequivocally testified under oath that he had never been a member of the Communist Party and had never attended a closed meeting. He did attend open meetings to which he had been invited and at which other non-Communists were present.2 The invitation was tantamount to an order, and nonattendance would result in serious consequences. Attendance of Berenyi at an open meeting is the most that is shown. Plainly that is not sufficient to show that he ever had 'been a member of or in any other way connected with, or associated with the Communist Party'—unless as a part of the cold war technique words are to be turned into traps to catch the innocent. And Kury's vague memory that petitioner had joined the Communist Party is belied by every facet of petitioner's character as revealed by a reading of this record.
18
During the Hungarian uprising in October and November of 1956, petitioner was a member of the Hungarian Army, which he had joined in order to obtain finances to complete his medical education. Communist membership was not a condition for serving in the army. His unit fought the Russians, and petitioner was on duty treating people who were wounded in fighting.
19
He married a woman whose family's property had been confiscated by the Communist Government; his wife's family left Hungary to escape the Communist regime. His wife testified that she hated communism and the Communist Government of Hungary.
20
In 1956, petitioner and his wife fled the Communist regime, making their escape at great personal risk. Petitioner testified without equivocation to his opposition to communism, his loyalty and attachment to the United States and his willingness to fight and bear arms in the defense of this country. He absolutely denied making the statement attributed to him by Kury. After his escape, petitioner resumed his medical career in this country, is associated with a number of hospitals and has been a senior instructor on the staff of the Tufts Medical School.
21
Petitioner's wife testified that both she and petitioner hated communism and the Hungarian Communist Government, and while in Hungary constantly wanted to leave the country for freedom. Lorand De Bickish, a former Hungarian national who is now a naturalized United States citizen, also testified on petitioner's behalf. De Bickish was an avowed anti-Communist who had been arrested twice and imprisoned once for attempting to escape from the Hungarian Communist Government. He testified that he had been exiled to a small town in Hungary because his brother was a broadcaster for Radio Free Europe. During his exile, petitioner and his wife were the only people to visit him. Petitioner often voiced his opposition to communism and the Hungarian Government. He and petitioner often secretly listened to Radio Free Europe and the Voice of America, and talked of leaving Hungary and escaping to freedom.
22
Two other witnesses testified that while in Hungary petitioner had often expressed his opposition to communism and the Hungarian Government and his desire to escape to a free country. They testified that, while in the United States, petitioner frequently expressed his gratitude at being here, and his love for the United States and the freedom it offered. It was stipulated that yet another witness would testify that petitioner opposed communism and was attached to the principles of the Constitution.
23
Thus we are confronted with the curious proposition that the speculations of one witness, and the hazy memory of another witness as to a statement made in the distant past, can outweigh the overwhelming evidence adduced by petitioner, and thereby prevent his naturalization. To me this is tantamount to saying that the Government can merely throw a very slim doubt into the case, and deny naturalization when the applicant fails to disprove the ephemeral doubt. It is no answer to say that the applicant in a naturalization proceeding bears the burden of showing his eligibility for citizenship. The crucial question is what the applicant must do successfully to bear his burden of persuasion. Nor is it an answer to say that doubts should be resolved in favor of the United States and against the applicant. The question is whether a 'doubt' is present to be resolved. Must the applicant tilt with every windmill thrown in his path by the Government? In this case there was no 'doubt' to be resolved in the Government's favor. If the Government's sketchy evidence did raise a doubt, the doubt was clearly dispelled by the overwhelming evidence adduced by petitioner. The petitioner did carry his burden of proof and his burden of persuasion. The concurrent findings of two lower courts are not sacrosanct; the 'two court finding' rule is no talisman preventing this Court from exercising the duties with which it is charged. This Court can review concurrent findings where there is 'a very obvious and exceptional showing of error.' Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 275, 69 S.Ct. 535, 538, 93 L.Ed. 672. This is such a case.
24
APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS, DISSENTING.
25
Pal Halasz, the chief witness against petitioner in the District Court, testified as follows:
26
'Q. Did you ever see a card showing that Dr. Kalman Berenyi was a member of the Communist Party?
27
'A. No. I never have seen a card.
28
'Q. Did he ever tell you or admit to you that he was a member of the Communist Party?
29
'A. No.
30
'Q. Did he in any way participate in these so-called meetings of any kind?
31
'A. Yes.
32
'Q. In what way?
33
'A. Well, he had to be there.
34
'Q. Well, other than put his body into a chair and to sit down at that meeting did he do anything else?
35
'A. I can't recall.
36
'Q. Now isn't it a fact that there were many noncommunists who were called to these meetings?
37
'A. Yes.
38
'Q. And would you say out of a class or group of 40 people, how many would be noncommunists? 'A. I don't know. It depends. Well, from 40 people could be 23 or 24, maybe, not Communists. * * *
39
'Q. * * * But in this group that you referred to where you claim you saw Dr. Kalman Berenyi how many people would be present?
40
'A. Well, I would say about 120—150 people.
41
'Q. Do you know for a fact, sir, that Kalman Berenyi knew it to be a Communist Party meeting on the occasions when he did attend it, according to your testimony?
42
'A. You ask me if he knew that was a Communist Party meeting going on. Well, I don't know if he was told or not.
43
'Q. Now isn't it a fact also that at these so-called meetings indoctrination took place, trying to convert and induce non-communists to join?
44
'A. Certainly.
45
'Q. Did you ever see a Communist Party book in the possession of Dr. Kalman Berenyi?
46
'A. No, I did not.
47
'Q. And did you know from your Party records, if you know of any, that he was listed as a Communist Party member?
48
'A. I never have seen such a Party record.
49
'Q. Now, Dr. Halasz, on direct examination you testified that he attended these meetings which you called Communist Party meetings?
50
'A. Yes.
51
'Q. Can you tell us with some degree of certainty as to how many meetings you saw Dr. Berenyi at?
52
'A. No, I can't tell that. Possible I see him maybe two or three times.
53
'Q. Possibly?
54
'A. That is all.
55
'Q. And it could have been once?
56
'A. It could be more or it could be once?
57
'Q. You kept no records on it?
58
'A. No.
59
'Q. And he was not active in anything? He just sat there?
60
'A. Oh, he was active, helping the rest of the students to study his medical science.
61
'Q. But at the so-called meetings once, twice or three times he never said a word, is that right?
62
'A. No. Unless he was straight asked because it can happen that somebody was asked straight about certain things.
63
'Q. Do you know now whether Dr. Berenyi attended open or closed meetings?
64
'A. I can't recall.
65
'Q. Did you ever have any discussions with Dr. Berenyi concerning his beliefs in Communism or the principles of Communism?
66
'A. Oh, sometimes certain things came up, certain questions. He didn't say too much; and if he said something, it wasn't for the favor of the Communists.
67
'Q. And as a result of your talk with Kalman Berenyi, could you tell this Court what his feelings were towards Communism?
68
'A. I don't believe he was a Communist, even if he was a member of the Communist Party. I don't believe he was Communist in heart.
69
'Q. Do you assert that he is a member—do you assert that he was a member of the Communist Party?
70
'A. I thought he was a member of the Communist Party because I have seen him on those certain meetings.
71
'Q. And that was all you had to base it on?
72
'A. That is right.'
73
And it appears that even at the so-called 'closed party meetings,' noncommunists were admitted. For a 'closed party meeting' was explained by Halasz to mean 'that only the Party members can say anything or vote on any subject:'
74
'The Court. But it was possible that non-Communists—when I say 'noncommunists,' they who were not members of the Party were present, but if they were present, they were not allowed to speak and they were not allowed to vote, is that right?
75
'The Witness. That is right, yes.'
1
Section 316(a) of the Immigration and Nationality Act of 1952, 66 Stat. 242, 8 U.S.C. § 1427(a), provides:
'No person, except as otherwise provided in this title, shall be naturalized unless such petitioner, (1) immediately preceding the date of filing his petition for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his petition has been physically present therein for periods totaling at least half of that time, and who has resided within the State in which the petitioner filed the petition for at least six months, (2) has resided continuously within the United States from the date of the petition up to the time of admission to citizenship, and (3) during all the periods referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.'
2
Section 101(f), 66 Stat. 172, 8 U.S.C. § 1101(f):
'For the purpose of this Act—No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was—* * * (6) one who has given false testimony for the purpose of obtaining any benefits under this Act * * *.'
3
Such an appearance is authorized by § 336(d) of the Act, 66 Stat. 258, 8 U.S.C. § 1447(d).
4
239 F.Supp. 725.
5
352 F.2d 71. The Court of Appeals referred to Rule 52, Fed.Rules Civ.Proc., which provides in relevant part:
'Findings by the Court. (a) Effect. * * * 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.'
6
384 U.S. 903, 86 S.Ct. 1339, 16 L.Ed.2d 357.
7
A preliminary examination on the petitioner's application for citizenship was held before a naturalization examiner, who transmitted his findings and recommendations to the District Judge, all pursuant to § 335 of the Act, 66 Stat. 255, 8 U.S.C. § 1446. But at the final hearing before the District Court, the judge heard testimony and conducted an independent hearing in accordance with § 336(b) of the Act, 66 Stat. 257, 8 U.S.C. § 1447(b), and explicitly declined to rely on any of the preliminary examination materials in reaching his conclusion. 239 F.Supp., at 727.
8
At the same time, the judge found the evidence too weak to establish the Government's alternative contention that the petitioner's application should be denied because he had been a Party member within 10 years preceding his application for citizenship in 1962, and thus came within § 313 of the Act, 66 Stat. 240, 8 U.S.C. § 1424, which provides in relevant part:
'(a) * * * no person shall hereafter be naturalized as a citizen of the United States—
'(2) who is a member of or affiliated with * * * (D) the Communist or other totalitarian party * * * of any foreign state * * *
'(c) The provisions of this section shall be applicable to any applicant for naturalization who at any time within a period of ten years immediately preceding the filing of the petition for naturalization or after such filing and before taking the final oath of citizenship is, or has been found to be within any of the classes enumerated within this section, notwithstanding that at the time the petition is filed he may not be included within such classes.'
9
Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796; Nowak v. United States, 356 U.S. 660, 78 S.Ct. 955, 2 L.Ed.2d 1048; Chaunt v. United States, 364 U.S. 350, 81 S.Ct. 147, 5 L.Ed.2d 120.
10
Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362.
11
The Government has not sought to deport the petitioner because of his affiliations with the Communist Party, and to do so it would be required to prove by 'clear, unequivocal, and convincing evidence,' Woodby v. Immigration and Naturalization Service, 385 U.S., at 286, 87 S.Ct., at 488, 17 L.Ed.2d 362, that the petitioner had been a Party member who was 'meaningfully associated' with it, Rowoldt v. Perfetto, 355 U.S. 115, 78 S.Ct. 180, 2 L.Ed.2d 140; Gastelum-Quinones v. Kennedy, 374 U.S. 469, 83 S.Ct. 1819, 10 L.Ed.2d 1013. The Government's evidence in this case fell clearly short of such a showing. Cf. n. 8, supra.
12
The District Court specifically refused to accept the Government's contention that the petitioner was ineligible for naturalization under the statutory provisions barring Communist Party members from citizenship. See n. 8, supra.
1
Nor could Halasz remember whether he had made a statement to the Naturalization Service inspector under oath.
2
The difference between the so-called closed meeting and the open meeting is described in the testimony which I have attached as an Appendix to this opinion. From that it appears that nonparty members were invited at times even to closed meetings.
| 12
|
385 U.S. 538
87 S.Ct. 639
17 L.Ed.2d 593
Isaac SIMS, Jr., Petitioner,v.STATE OF GEORGIA.
No. 251.
Argued Dec. 6 and 7, 1966.
Decided Jan. 23, 1967.
Jack Greenberg, New York City, for petitioner.
Dewey Hayes, Douglas, Ga., and E. Freeman Leverett, Atlanta, Ga., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
Petitioner, a Negro, has been convicted of raping a white woman and has been given the death penalty. He raises five federal questions1 for consideration by this Court, among which is that his Fourteenth Amendment rights to a fair trial were violated by the state trial judge's failure to determine the voluntariness of his alleged confession prior to its admission into evidence before the jury, as required by the rule in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). The Supreme Court of Georgia ruled that Jackson was not applicable and affirmed petitioner's conviction, Sims v. State, 221 Ga. 190, 144 S.E.2d 103. We granted certiorari limited to the five questions, 384 U.S. 998, 86 S.Ct. 1953, 16 L.Ed.2d 1013. We have determined that petitioner's case is controlled by Jackson, supra, and therefore we do not reach any of the other issues raised.
I.
2
The record indicates that on April 13, 1963, a 29-year-old white woman was driving home alone in her automobile when petitioner drove up behind her in his car, forced her off the road into a ditch, took the woman from her car into nearby woods and forcibly raped her. When he returned to his car, he could not start the engine so he left the scene on foot. Some four hours later he was apprehended by some Negro workers who had been alerted to be on the watch for him. He told these Negroes that he had attacked a white woman. They then turned petitioner over to their employer who delivered him to two state patrolmen. He was then taken to the office of a Doctor Jackson who had previously examined the victim. Petitioner's clothing was removed in order to test it for blood stains. Petitioner testified that while he was in Doctor Jackson's office he was knocked down, kicked over the right eye and pulled around the floor by his private parts. He was taken to a hospital owned by Doctor Jackson, which was adjacent to his office, where four stitches were taken in his forehead. Thereafter the patrolmen took petitioner to Waycross, Georgia, some 30 miles distant, where he was placed in the county jail. During that evening, he saw a deputy sheriff whom he had known for some 13 years and who was on duty on the same floor of the jail where petitioner was incarcerated. He agreed to make a statement and was taken to an interview room where, in the presence of the sheriff, the deputy sheriff and two police officers, he signed a written confession. Two days later he was arraigned.
3
Prior to trial petitioner filed a motion to suppress the confession as being the result of coercion. A hearing was held before the court out of the presence of the jury. The sheriff and the deputy testified to the circumstances surrounding the taking and signing of the confession. Petitioner testified as to the abuse he had received while in Doctor Jackson's office. He testified that he 'felt pretty rough for about two or three weeks (after the incident), more on my private than I did on my face' and that he 'was paining a right smart.' There was no contradictory testimony taken. The court denied the motion to suppress without opinion or findings and the confession was admitted into evidence at petitioner's trial.
4
At the trial, Doctor Jackson was a witness for the State. On cross-examination he denied that he had knocked petitioner down while the latter was in his office, or that he had kicked him in the forehead but made no mention of the other abuse about which petitioner testified. The doctor stated that petitioner was not abused in his presence but he refused to say whether the patrolmen present abused petitioner as he was not in the office at all times while the petitioner was there with the patrolmen. In this state of the record petitioner's testimony in this regard was left uncontradicted.
II.
5
There is no actual ruling or finding in the record showing that the trial judge determined the voluntariness of the confession. Although he admitted it into evidence, it appears that he was only following a long-standing state practice that the 'State having made out a prima facie case that the alleged confession was freely and voluntarily made, it was a question for the jury to determine on conflicting evidence whether the alleged confession was freely and voluntarily made.' Downs v. State, 208 Ga. 619, 621, 68 S.E.2d 568, 570. Defense counsel called the court's attention to the Jackson v. Denno ruling of this Court and stated that he did not 'know whether the procedure being followed at this time satisfies the rule decided by the Supreme Court on June 22nd, 1964, that the Court must make judicial determination whether the statement was made voluntarily before it is read to the jury.' In his charge to the jury the judge directed that it was for the jury to determine whether the confession was actually made or not and to disregard it if not made freely and voluntarily.
III.
6
On appeal to the Supreme Court of Georgia, it was held proper for the trial judge to have left the question of the voluntariness of the confession to the jurors with instructions that they should disregard it if they should determine that it was not, in fact, voluntarily made. Indeed, that court specifically found that the 'related facts made a prima facie showing that the statement was freely and voluntarily made and admissible in evidence.' 221 Ga., at 198, 144 S.E.2d, at 110. It therefore seems clear from the opinion of the highest court of Georgia that it has applied its own rule rather than having followed the rule set down in Jackson for the procedural determination of the voluntariness of a confession. This conclusion is buttressed by the fact that the court below also found that the 'Georgia rule presents the question to the jury without giving them the judgment of the judge.' Id., at 200, 144 S.E.2d, at 111. This is the exact procedural device which is proscribed by the rule in Jackson.
IV.
7
The Supreme Court of Georgia reasoned, however, that Jackson was not applicable because of the safeguards that Georgia's laws erect around the use of confessions. It pointed out that under Georgia law, before a confession may be admitted it must be corroborated and a showing made that it was freely and voluntarily given. In addition, the trial judge has the power to set aside the verdict of the jury and grant a new trial if, in his opinion, the jury was in error. The court concluded that the rule in Jackson is satisfied by Georgia law and that 'It would be difficult to find a more complete satisfaction of the requirement of Jackson than Georgia provides.' Id., at 201, 144 S.E.2d, at 111. The court also felt that if this not be true, in any event, 'the unsound implications of Jackson should not be extended one iota to make it cover cases not explicitly covered by it such as this case where there was no evidence to make any issue of voluntariness. Without an issue there is nothing to try.' Ibid. We cannot agree. There was a definite, clear-cut issue here. Petitioner testified that Doctor Jackson physically abused him while he was in his office and that he was suffering from that abuse when he made the statement, thereby rendering such confession involuntary and the result of coercion. The doctor admitted that he saw petitioner on the floor of his office; that he helped him disrobe and that he knew that petitioner required hospital treatment because of the laceration over his eye but he denied that petitioner was actually abused in his presence. He was unable to state, however, that the state patrolmen did not commit the alleged offenses against petitioner's person because he was not in the room during the entire time in which the petitioner and the patrolmen were there. In fact, the doctor was quite evasive in his testimony and none of the officers present during the incident were produced as witnesses. Petitioner's claim of mistreatment, therefore, went uncontradicted as to the officers and was in conflict with the testimony of the physician. Under Jackson, it was for the trial judge to first decide these conflicts and discrepancies. This he failed to do.
8
Furthermore, Georgia's highest court, in finding that its rule satisfied the requirements of Jackson, overlooked the fact that the same safeguards offered by the Georgia practice were present in the procedures of New York in Jackson and were rejected by this Court. A constitutional rule was laid down in that case that a jury is not to hear a confession unless and until the trial judge has determined that it was freely and voluntarily given. The rule allows the jury, if it so chooses, to give absolutely no weight to the confession in determining the guilt or innocence of the defendant but it is not for the jury to make the primary determination of voluntariness. Although the judge need not make formal findings of fact or write an opinion, his conclusion that the confession is voluntary must appear from the record with unmistakable clarity. Here there has been absolutely no ruling on that issue and it is therefore impossible to know whether the judge throught the confession voluntary or if the jury considered it as such in its determination of guilt. Jackson, having been decided June 22, 1964, was binding on the courts of Georgia in this case, it having been tried October 7, 1964. Such rule is, as we have said, a constitutional rule binding upon the States and, under the Supremacy Clause of Article VI of the Constitution, it must be obeyed.
9
The judgment is, therefore, reversed and cause is remanded for a hearing as provided by Jackson v. Denno, supra, 378 U.S. at 393, 396, 84 S.Ct. at 1789—1791. It is so ordered.2
10
Reversed and remanded.
11
Mr Justice BLACK dissents for the reasons stated in his dissent in Jackson v. Denno, 378 U.S., at 401, 84 S.Ct. at 1793.
1
The five questions are:
'1. Whether petitioner's Fourteenth Amendment rights were violated by a conviction and sentence to death obtained on the basis of a confession made under inherently coercive circumstances within the doctrine of Fikes v. State of Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246.
'2. Whether petitioner's Fourteenth Amendment rights were violated by the failure of the Georgia courts to afford a fair and reliable procedure for determining the voluntariness of his alleged coerced confession in disregard of the principle of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908.
'3. Whether petitioner's Fourteenth Amendment right to counsel as declared in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 was violated by the use of his confession obtained during police interrogation in the absence of counsel, or whether petitioner's right to counsel was effectively waived.
'4. Is a conviction constitutional where:
'(a) local practice pursuant to state statute requires racially segregated tax books and county jurors are selected from such books;
'(b) the number of Negroes chosen is only 5% of the jurors but they comprise about 20% of the taxpayers; and
'(c) a Negro criminal defendant's offer to prove a practice of arbitrary and systematic Negro inclusion or exclusion based on jury lists of the prior ten years is disallowed?
'5. Where a Negro defendant sentenced to death in Georgia for the rape of a white woman offers to prove that nineteen times as many Negroes as whites have been executed for rape in Georgia in an effort to show that racial discrimination violating the equal protection clause of the Fourteenth Amendment produced such a result, may this offer of proof be disallowed?'
2
This disposition is in keeping with the teaching of Jackson, supra, that 'a determination of * * * voluntariness' should occur initially 'in the the state courts in accordance with valid state procedures * * * before this Court considers the case on direct review or a petition for habeas corpus is filed in a Federal District Court.' 378 U.S., at 393, 84 S.Ct., at 1789.
| 01
|
385 U.S. 554
87 S.Ct. 648
17 L.Ed.2d 606
Leon SPENCER, Appellant,v.STATE OF TEXAS. Robert A. BELL, Jr., Petitioner, v. STATE OF TEXAS. William Everett REED, Petitioner, v. George J. BETO, Director, Texas Department of Corrections.
Nos. 68—70.
Argued Oct. 17 and 18, 1966.
Decided Jan. 23, 1967.
Rehearings Denied March 13, 1967.
See 386 U.S. 369, 87 S.Ct. 1015, 1016.
No. 68: Michael D. Matheny, Tyler, Tex., for appellant.
Leon B. Douglas, Austin, Tex., for appellee.
No. 69:
Tom R. Scott, Midland, Tex., for petitioner.
Hawthorne Phillips, Austin, Tex., for respondent.
No. 70:
Emmett Colvin, Jr., Dallas, Tex., for petitioner.
Howard Fender, Austin, Tex., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
Texas, reflecting widely established policies in the criminal law of this country, has long had on its books so-called recidivist or habitual-criminal statutes. Their effect is to enhance the punishment of those found guilty of crime who are also shown to have been convicted of other crimes in the past. The three cases at hand challenge the procedures employed by Texas in the enforcement of such statutes.1
2
Until recently, and at the time of the convictions before us, the essence of those procedures was that, through allegations in the indictment and the introduction of proof respecting a defendant's past convictions, the jury trying the pending criminal charge was fully informed of such previous derelictions, but was also charged by the court that such matters were not to be taken into account in assessing the defendan's guilt or innocence under the current indictment.2
3
The facts in the cases now here are these. In Spencer (No. 68), the petitioner3 was indicted for murder, with malice, of his common-law wife. The indictment alleged that the defendant had previously been convicted of murder with malice, a factor which if proved would entitle the jury to sentence the defendant to death or to prison for not less than life under Texas Pen.Code Art. 64, n. 1, supra, whereas if the prior conviction was not proved the jury could fix the penalty at death or a prison term of not less than two years, see Texas Pen.Code Art. 1257. Spencer made timely objections to the reading to the jury of that portion of the indictment, and objected as well to the introduction of evidence to show his prior conviction. The jury was charged that if it found that Spencer had maliciously killed the victim, and that he had previously been convicted of murder with malice, the jury was to 'assess his punishment at death or confinement in the penitentiary for life.' The jury was instructed as well that it should not consider the prior conviction as any evidence of the defendant's guilt on the charge on which he was being tried. Spencer was found guilty and sentenced to death.
4
In Bell (No. 69), the petitioner was indicted for robbery, and the indictment alleged that he had been previously convicted of bank robbery in the United States District Court for the Southern District of Texas. Bell moved to quash the indictment on the ground, similar to that in Spencer, that the allegation and reading to the jury of a prior offense was prejudicial and would deprive him of a fair trial. Similar objections were made to the offer of documentary evidence to prove the prior conviction. The court's charge to the jury stated that the prior conviction should not be considered in passing upon the issue of guilt or innocence on the primary charge. The sentencing procedure in this non-capital case was somewhat different from that in Spencer. The jury was instructed that if it found the defendant guilty only of the present robbery charge, it could fix his sentence at not less than five years nor more than life. See Texas Pen. Code Art. 1408. But if it found that Bell had also been previously convicted as alleged in the indictment, it should bring in a verdict of guilty of robbery by assault and a further finding that the allegations 'charging a final conviction for the offense of bank robbery are true.' The jury so found, and the judge fixed punishment, set by law for such a prior offender, at life imprisonment in the penitentiary. See Texas Pen. Code Art. 62, note 1, supra.
5
The Reed case (No. 70),4 involving a third-offender prosecution for burglary, see Texas Pen.Code Art. 63, n. 1, supra, entailed the same practice as followed in Bell.
6
The common and sole constitutional claim made in these cases is that Texas' use of prior convictions in the current criminal trial of each petitioner was so egregiously unfair upon the issue of guilt or innocence as to offend the provisions of the Fourteenth Amendment that no State shall 'deprive any person of life, liberty, or property, without due process of law * * *.' We took these cases for review, 382 U.S. 1022, 1023, 1025, 86 S.Ct. 649, 15 L.Ed.2d 537, 538, 539, because the courts of appeals have divided on the issue.5 For reasons now to follow we affirm the judgments below.
7
The road to decision, it seems to us, is clearly indicated both by what the petitioners in these cases do not conted and by the course of the authorities in closely related fields. No claim is made here that recidivist statutes are themselves unconstitutional, nor could there be under our cases. Such statutes and other enhanced-sentence laws, and procedures designed to implement their underlying policies, have been enacted in all the States,6 and by the Federal Government as well. See e.g., 18 U.S.C. § 2114; Fed.Rule Crim.Proc. 32(c)(2); D.C.Code § 22—104 (1961). Such statutes, though not in the precise procedural circumstances here involved, have been sustained in this Court on several occasions against contentions that they violate constitutional strictures dealing with double jeopardy, ex post facto laws, cruel and unusual punishment, due process, equal protection, and privileges and immunities. Moore v. State of Missouri, 159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301; McDonald v. Commonwealth of Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542; Graham v. State of West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917; Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683; Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446.
8
Nor is it contended that it is unconstitutional for the jury to assess the punishment to be meted out to a defendant in a capital or other criminal case, or to make findings as to whether there was or was not a prior conviction even though enhanced punishment is left to be imposed by the judge. The States have always been given wide leeway in dividing responsibility between judge and jury in criminal cases. Hallinger v. Davis, 146 U.S. 314, 13 S.Ct. 105, 36 L.Ed. 986; Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L.Ed. 597; cf. Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4; Giaccio v. State of Pennsylvania, 382 U.S. 399, 405, n. 8, 86 S.Ct. 518, 522, 15 L.Ed.2d 447.
9
Petitioners do not even appear to be arguing that the Constitution is infringed if a jury is told of a defendant's prior crimes. The rules concerning evidence of prior offenses are complex, and vary from jurisdiction to jurisdiction, but they can be summarized broadly. Because such evidence is generally recognized to have potentiality for prejudice, it is usually excluded except when it is particularly probative in showing such things as intent. Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919, Ellisor v. State, 162 Tex.Cr.R. 117, 282 S.W.2d 393; an element in the crime, Doyle v. State, 59 Tex.Cr.R. 39, 126 S.W. 1131; identity, Chavira v. State, 167 Tex.Cr.R. 197, 319 S.W.2d 115; malice, Moss v. State, Tex.Cr.App., 364 S.W.2d 389; motive, Moses v. State, 168 Tex. Cr.R. 409, 328 S.W.2d 885; a system of criminal activity, Haley v. State, 87 Tex.Cr.R. 519, 223 S.W. 202; or when the defendant has raised the issue of his character, Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168, Perkins v. State, 152 Tex.Cr.R. 321, 213 S.W.2d 681; or when the defendant has testified and the State seeks to impeach his credibility, Giacone v. State, 124 Tex.Cr.R. 141, 62 S.W.2d 986.7
10
Under Texas law the prior convictions of the defendants in the three cases before the Court today might have been admissible for any one or more of these universally accepted reasons. In all these situations, as under the recidivist statutes, the jury learns of prior crimes committed by the defendant, but the conceded possibility of prejudice is believed to be outweighed by the validity of the State's purpose in permitting introduction of the evidence. The defendants' interests are protected by limiting instructions, see Giacone v. State, supra, and by the discretion residing with the trial judge to limit or forbid the admission of particularly prejudicial evidence even though admissible under an accepted rule of evidence. See Spears v. State, 153 Tex.Cr.R. 14, 216 S.W.2d 812; 1 Wigmore, Evidence § 29a (3d ed. 1940); Uniform Rule of Evidence 45; Model Code of Evidence, Rule 303.
11
This general survey sufficiently indicates that the law of evidence, which has been chiefly developed by the States, has evolved a set of rules designed to reconcile the possibility that this type of information will have some prejudicial effect with the admitted usefulness it has as a factor to be considered by the jury for any one of a large number of valid purposes. The evidence itself is usually, and in recidivist cases almost always, of a documentary kind, and in the cases before us there is no claim that its presentation was in any way inflammatory. Compare Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250. To say the United States Constitution is infringed simply because this type of evidence may be prejudicial and limiting instructions inadequate to vitiate prejudicial effects, would make inroads into this entire complex code of state criminal evidentiary law, and would threaten other large areas of trial jurisprudence. For example, all joint trials, whether of several codefendants or of one defendant charged with multiple offenses, furnish inherent opportunities for unfairness when evidence submitted as to one crime (on which there may be an acquittal) may influence the jury as to a totally different charge. See Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278; cf. Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101; Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790. This type of prejudicial effect is acknowledged to inhere in criminal practice, but it is justified on the grounds that (1) the jury is expected to follow instructions in limiting this evidence to its proper function, and (2) the convenience of trying different crimes against the same person, and connected crimes against different defendants, in the same trial is a valid governmental interest.
12
Such an approach was in fact taken by the Court in Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168. There, in a federal prosecution, the Government was permitted to cross-examine defense witnesses as to the defendant's character and to question them about a prior conviction. The Court, recognizing the prejudicial effect of this evidence, noted that 'limiting instructions on this subject are no more difficult to comprehend or apply than those upon various other subjects;' id., at 485, 69 S.Ct. at 223, and held that this Court was not the best forum for developing rules of evidence, and would, therefore, not proscribe the long-standing practice at issue. A fortiori, this reasoning applies in the cases before us today which arise not under what has been termed the supervisory power of this Court over proceedings in the lower federal courts, see Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629, but in the form of a constitutional claim that would require us to fashion rules of procedure and evidence in state courts. It is noteworthy that nowhere in Michelson did the Court or dissenting opinions approach the issue in constitutional terms.
13
It is contended nonetheless that in this instance the Due Process Clause of the Fourteenth Amendment requires the exclusion of prejudicial evidence of prior convictions even though limiting instructions are given and even though a valid state purpose enforcement of the habitual-offender statute—is served. We recognize that the use of prior-crime evidence in a one-stage recidivist trial may be thought to represent a less cogent state interest than does its use for other purposes, in that other procedures for applying enhancement-of-sentence statutes may be available to the State that are not suited in the other situations in which such evidence is introduced. We do not think that this distinction should lead to a different constitutional result.
14
Cases in this Court have long proceeded on the premise that the Due Process Clause guarantees the fundamental elements of fairness in a criminal trial. See, e.g., Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749; Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595; cf. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; see Estes v. State of Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543; Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600; cf. Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891. But it has never been thought that such cases establish this Court as a rule-making organ for the promulgation of state rules of criminal procedure. And none of the specific provisions of the Constitution ordains this Court with such authority. In the face of the legitimate state purpose and the long-standing and widespread use that attend the procedure under attack here, we find it impossible to say that because of the possibility of some collateral prejudice the Texas procedure is rendered unconstitutional under the Due Process Clause as it has been interpreted and applied in our past cases. As Mr. Justice Cardozo had occasion to remark, a state rule of law 'does not run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at bar.' Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674. See also Buchalter v. People of State of New York, 319 U.S. 427, 63 S.Ct. 1129, 87 L.Ed. 1492.
15
Petitioners' reliance on Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, is misplaced. There the Court held unconstitutional the New York procedure leaving to the trial jury alone the issue of the voluntariness of a challenged confession, an area of law that has been characterized by the development of particularly stiff constitutional rules. See Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760; Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The Court held that a judicial ruling was first required to determine whether as a matter of law—federal constitutional law—the confession could be deemed voluntary. This requirement of a threshold hearing before a judge on the federal question of voluntariness lends no solid support to the argument made here that a two-stage jury trial is required whenever a State seeks to invoke an habitual-offender statute. It is true that the Court in Jackson supported its holding by reasoning that a general jury verdict was not a 'reliable' vehicle for determining the issue of voluntariness because jurors might have difficulty in separating the issues of voluntariness from that of guilt or innocence. But the emphasis there was on protection of a specific constitutional right, and the Jackson procedure was designed as a specific remedy to ensure that an involuntary confession was not in fact relied upon by the jury. In the procedures before us, in contrast, no specific federal right—such as that dealing with confessions—is involved; reliance is placed solely on a general 'fairness' approach. In this area the Court has always moved with caution before striking down state procedures. It would be extravagant in the extreme to take Jackson as evincing a general distrust on the part of this Court of the ability of juries to approach their task responsibly and to sort out discrete issues given to them under proper instructions by the judge in a criminal case, or as standing for the proposition that limiting instructions can never purge the erroneous introduction of evidence or limit evidence to its rightful purpose. Compare Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101; Leland v. State of Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302.8
16
It is fair to say that neither the Jackson case nor any other due process decision of this Court even remotely supports the proposition that the States are not free to enact habitual-offender statutes of the type Texas has chosen and to admit evidence during trial tending to prove allegations required under the statutory scheme.
17
Tolerance for a spectrum of state procedures dealing with a common problem of law enforcement is especially appropriate here. The rate of recidivism is acknowledged to be high,9 a wide variety of methods of dealing with the problem exists, and experimentation is in progress. The common-law procedure for applying recidivist statutes, used by Texas in the cases before us, which requires allegations and proof of past convictions in the current trial, is of course, the simplest and best known procedure.10 Some jurisdictions deal with the recidivist issue in a totally separate proceeding, see, e.g., Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446, and as already observed (n. 2, supra) Texas to some extent has recently changed to that course. In some States such a proceeding can be instituted even after conviction on the new substantive offense, see Ore.Rev.Stat. § 168.040 (1959); Graham v. State of West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917. The method for determining prior convictions varies also between jurisdictions affording a jury trial on this issue, e.g., Fla.Stat.Ann. § 755.11 (1965); and those leaving that question to the court, see, e.g., Fed.Rule Crim.Proc. 32(a); Mo.Rev.Stat. § 556.280(2) (1959).11 Another procedure, used in Great Britain and Connecticut, see, Coinage Offences Act, 1861, 24 & 25 Vict., c. 99; State v. Ferrone, 96 Conn. 160, 113 A. 452, requires that the indictment allege both the substantive crime and the prior conviction, that both parts be read to the defendant prior to trial, but that only the allegations relating to the substantive crime be read to the jury. If the defendant is convicted, the prior-offense elements are then read to the jury which considers any factual issues raised. Yet another system relies upon the parole authorities to withhold parole in accordance with their findings as to prior convictions. See, e.g., N.J.Stat.Ann. § 30:4—123.12 (1964). And within each broad approach described, other variations occur.
18
A determination of the 'best' recidivist trial procedure necessarily involves a consideration of a wide variety of criteria, such as which method provides most adequate notice to the defendant and an opportunity to challenge the accuracy and validity of the alleged prior convictions, which method best meets the particular jurisdiction's allocation of responsibility between court and jury, which method is best accommodated to the State's established trial procedures, and of course which method is apt to be the least prejudicial in terms of the effect of prior-crime evidence on the ultimate issue of guilt or innocence. To say that the two-stage jury trial in the English-Connecticut style is probably the fairest, as some commentators and courts have suggested,12 and with which we might well agree were the matter before us in a legislative or rule-making context, is a far cry from a constitutional determination that this method of handling the problem is compelled by the Fourteenth Amendment. Two-part jury trials are rare in our jurisprudence; they have never been compelled by this Court as a matter of constitutional law, or even as a matter of federal procedure.13 With recidivism the major problem that it is, substantial changes in trial procedure in countless local courts around the country would be required were this Court to sustain the contentions made by these petitioners. This we are unwilling to do. To take such a step would be quite beyond the pale of this Court's proper function in our federal system. It would be a wholly unjustifiable encroachment by this Court upon the constitutional power of States to promulgate their own rules of evidence to try their own state-created crimes in their own state courts, so long as their rules are not prohibited by any provision of the United States Constitution, which these rules are not. The judgments in these cases are affirmed.
19
Affirmed.
20
Mr. Justice STEWART, concurring.
21
If the Constitution gave me a roving commission to impose upon the criminal courts of Texas my own notions of enlightened policy, I would not join the Court's opinion. For it is clear to me that the recidivist procedures adopted in recent years by many other States1—and by Texas herself since January 1 of last year2 are far superior to those utilized in the cases now before us. But the question for decision is not whether we applaud or even whether we personally approve the procedures followed in these recidivist cases. The question is whether those procedures fall below the minimum level the Fourteenth Amendment will tolerate. Upon that question I am constrained to join the opinion and judgment of the Court.
22
Mr. Chief Justice WARREN, with whom Mr. Justice FORTAS concurs, dissenting in Nos. 68 and 69, and concurring in No. 70.
23
It seems to me that the only argument made by the Court which might support its disposition of these cases is the amorphous one that this Court should proceed hesitantly in dealing with courtroom procedures which are alleged to violate the Due Process Clause of the Fourteenth Amendment. It attempts to bolster its decision with arguments about the conceded validity of the purpose of recidivist statutes and by pointing to occasions when evidence of prior crimes is traditionally admitted to serve a specific purpose related to finding guilt or innocence. For the reasons which I shall discuss, I do not find in these two arguments support for the decision. Nor am I persuaded by its cautious attitude toward this procedure. I recognize that the criteria for decision in procedural due process cases are necessarily drawn from the traditional jurisprudential attitudes of our legal system rather than from a relatively specific constitutional command. However, this Court has long recognized the central importance of courtroom procedures in maintaining our constitutional liberties. As Mr. Justice Frankfurter often reminded us, the history of individual liberty in largely coincident with the history of observance of procedural safeguards, Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, concurring opinion of Frankfurther, J., 341 U.S., at 164, 71 S.Ct. 624, at 644, 95 L.Ed. 817.
24
It seems to me that the use of prior-convictions evidence in these cases is fundamentally at odds with traditional notions of due process, not because this procedure is not the nicest resolution of conflicting but legitimate interests of the State and the accused, but because it needlessly prejudices the accused without advancing any legitimate interest of the State. If I am wrong in thinking that the introduction of prior-convictions evidence serves no valid purpose I am not alone, for the Court never states what interest of the State is advanced by this procedure. And this failure, in my view, undermines the logic of the Court's opinion.
25
There is much said about the valid purpose of enhanced punishment for repeating offenders, with which I agree, and about the variety of occasions in criminal trials in which prior-crimes evidence is admitted as having some relevance to the question of guilt or innocence. But I cannot find support for this procedure in either the purposes of recidivist statutes or by analogy to the traditional occasions where prior-crimes evidence is admitted. And the Court never faces up to the problem of trying to justify this recidivist procedure on the ground that the State would not violate due process if it used prior convictions simply as evidence of guilt because it showed criminal propensity.
26
Recidivist statutes have never been thought to allow the State to show probability of guilt because of prior convictions. Their justification is only that a defendant's prior crimes should lead to enhanced punishment for any subsequent offenses. Recidivist statutes embody four traditional rationales for imposing penal sanctions.1 A man's prior crimes are thought to aggravate his guilt for subsequent crimes, and thus greater than usual retribution is warranted. Similarly, the policies of insulating society from persons whose past conduct indicates their propensity to criminal behavior, of providing deterrence from future crime, and of rehabilitating criminals are all theoretically served by enhanced punishment according to recidivist statutes. None of these four traditional justifications for recidivist statutes is related in any way to the burden of proof to which the State is put to prove that a crime has currently been committed by the alleged recidivist. The fact of prior convictions is not intended by recidivist statutes to make it any easier for the State to prove the commission of a subsequent crime. The State does not argue in these cases that its statutes are, or constitutionally could be, intended to allow the prosecutor to introduce prior convictions to show the accused's criminal disposition. But the Court's opinion seems to accept, without discussion, that this use of prior-crimes evidence would be consistent with due process.
27
The amended Texas procedure is the nearest demonstration that none of the interests served by recidivist statutes is advanced by presentation of prior-crimes evidence before the defendant has been found guilty. Under current statutory law,2 effective since January 1, 1966, and therefore not involved in these cases, in felony cases the jury first decides the question of guilt or innocence of the crime currently charged, and only after the defendant is found guilty of the current crime is evidence presented on the entirely separate question of whether the defendant has been previously convicted of a crime which places him within the scope of a recidivist statute requiring enhanced punishment. Under the old Texas procedure involved in these cases, just as under the new procedure, the fact of prior convictions is relevant only to the question of enhanced punishment. Recidivist statutes have nothing whatever to do with the method by which the State shows that an accused has committed a crime.
28
Whether or not a State has recidivist statutes on its books, it is well established that evidence of prior convictions may not be used by the State to show that the accused has a criminal disposition and that the probability that he committed the crime currently charged is increased.3 While this Court has never held that the use of prior convictions to show nothing more than a disposition to commit crime would violate the Due Process Clause of the Fourteenth Amendment, our decisions exercising supervisory power over criminal trials in federal courts,4 as well as decisions by courts of appeals5 and of state courts,6 suggest that evidence of prior crimes introduced for no purpose other han to show criminal disposition would violate the Due Process Clause. Evidence of prior convictions has been forbidden because it jeopardizes the presumption of innocence of the crime currently charged. A jury might punish an accused for being guilty of a previous offense, or feel that incarceration is justified because the accused is a 'bad man,' without regard to his guilt of the crime currently charged. Of course it flouts human nature to suppose that a jury would not consider a defendant's previous trouble with the law in deciding whether he has committed the crime currently charged against him. As Mr. Justice Jackson put it in a famous phrase, '(t)he naive assumption that prejudicial effects can be overcome by instructions to the jury * * * all practicing lawyers know to be unmitigated fiction.' Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 723, 93 L.Ed. 790 (concurring opinion) (1949). United States ex rel. Scoleri v. Banmiller, 310 F.2d 720, 725 (C.A.3d Cir. 1962). Mr. Justice Jackson's assessment has received support from the most ambitious empirical study of jury behavior that has been attempted, see Kalven & Zeisel, The American Jury 127—130, 177—180.
29
Recognition to the prejudicial effect of prior-convictions evidence has traditionally been related to the requirement of our criminal law that the State prove beyond a reasonable doubt the commission of a specific criminal act. It is surely engrained in our jurisprudence that an accused's reputation or criminal disposition is no basis for penal sanctions. Because of the possibility that the generality of the jury's verdict might mask a finding of guilt based on an accused's past crimes or unsavory reputation, state and federal courts have consistently refused to admit evidence of past crimes except in circumstances where it tends to prove something other than general criminal disposition.
30
As I have stated, I do not understand the opinion to assert that this Court would find consistent with due process the admission of prior-crimes evidence for no purpose other than what probative value it has bearing on an accused's disposition to commit a crime currently charged. It ignores this issue, and points out that evidence of prior crimes in other contexts has not been thought so prejudicial that it cannot be admitted to serve a particular valid purpose. Thus, past crimes may be used to show a common design between a past crime and one currently charged, to show the distinctive handiwork of the defendant, or to show that the act presently at issue was probably not unintentional.7 We need not disagree with the admission of evidence of prior convictions in cases such as these, because past convictions are directly relevant to the question of guilt or innocence of the crime currently charged. It is admitted because its probative value, going to elements of the current charges, is so strong that it outweighs the prejudice inherent in evidence of prior crimes. Also, as the Court further points out, evidence of prior crimes has traditionally been admitted to either impeach the defendant's credibility when he testifies in his own behalf, or to counteract evidence introduced by the defendant as to his good character. In each of these situations, the possibility of prejudice resulting from the evidence of prior convictions is thought to be outweighed by the legitimate purposes served by the evidence. When a defendant attempts to convince the jury of his innocence by showing it that he is a person of such character that it is unlikely that he committed the crime charged, the State has a legitimate interest in counteracting this evidence of good character by showing that the accused has been previously convicted. The defendant has initiated the requiry into his reputation, and the State should be allowed to respond to this general character evidence as best it can.
31
Similarly, when prior convictions are introduced to impeach the credibility of a defendant who testifies, a specific purpose is thought to be served. The theory is that the State should be permitted to show that the defendant-witness' credibility is qualified by his past record of delinquent behavior. In other words, the defendant is put to the same credibility test as any other witness. A defendant has some control over the State's opportunity to introduce this evidence in that he may decide whether or not to take the stand. Moreover, the jury hears of the prior convictions following a defendant's testimony, and it may be thought that this trial context combined with the usual limiting instruction results in the jury's actually behaving in accordance with the theory of limiting instructions: that is, that the prior convictions are only taken into account in assessing the defendant's credibility.
32
Although the theory justifying admission of evidence of prior convictions to impeach a defendant's credibility has been criticized,8 all that is necessary for purposes of deciding this case is to accept its theoretical justification and to note the basic difference between it and the Texas recidivist procedure. In the case of impeachment, as in all the examples cited by the Court, the prior convictions are considered probative for a limited purpose which is relevant to the jury's finding of guilt or innocence. This purpose is, of course, completely different from the purpose for which prior convictions are admitted in recidivist cases, where there is no connection between the evidence and guilt or innocence.
33
In all the situations pointed out by the Court, the admission of prior-crimes evidence rests on a conclusion that the probative value of the evidence outweighs the conceded possibility of prejudice. There is no middle position between the alternatives of admission or exclusion because, if the evidence is to serve the purpose for which it is considered probative, it must be admitted before the jury decides whether the defendant is guilty or innocent. The problem thus becomes the delicate one of balancing probative value against the possibility of prejudice, and the result for most state and federal courts (including this Court in the exercise of its supervisory power over proceedings in federal courts) has been that the trial judge is given discretion to draw the balance in the context of the trial. In view of this uniform tradition, it is apparent that prior-convictions evidence introduced for certain specific purposes relating to the determination of guilt or innocence, other than to show a general criminal disposition, would not violate the Due Process Clause.
34
From these situations where the probative value of prior convictions evidence is thought to outweigh its prejudicial impact, the Court draws the legitimate conclusion that prior-convictions evidence is not so inherently prejudicial that its admission is invariably prohibited. It combines this premise with the concededly valid purpose of recidivist statutes to produce the following logic: since prior-crimes evidence may be admitted at the guilt phase of a trial where the admission serves a valid purpose and since the purpose of recidivist statutes is valid, prior crimes may be proven in the course of the guilt phase of a trial in order that the jury may also assess whether a defendant, if found guilty, should be sentenced to an enhanced punishment under recidivist statutes. I believe this syllogism is plausible only on the surface, because the Court's premises do not combine to justify its far-reaching result. I believe the Court has fallen into the logical fallacy sometimes known as the fallacy of the undistributed middle, because it has failed to examine the supposedly shared principle between admission of prior crimes related to guilt and admission in connection with recidivist statutes.9 That the admission in both situations may serve a valid purpose does not demonstrate that the former practice justifies the latter any more than the fact that men and dogs are animals means that men and dogs are the same in all respects.
35
Unlike the purpose for the admission of prior-convictions evidence in all the examples cited by the Court, the admission in connection with enhancing punishment for repeating offenders has nothing whatever to do with the question of guilt or innocence of the crime currently charged. Because of the complete irrelevance of prior convictions to the question of guilt or innocence, the recidivist situation is not one where the trial courts are called upon to balance the probative value of prior convictions against their prejudicial impact. The purpose of admitting prior-convictions evidence should be served and prejudice completely avoided by the simple expedient of a procedure which reflects the exclusive relevance of recidivist statutes to the issue of proper punishment. Only after a defendant has been found guilty does the question of whether he fits the recidivist category become relevant to the sentence, and any issue of fact as to his prior convictions should then be decided by the jury.
36
The availability of this procedural alternative, through which the interests of the State as reflected in its recidivist statutes can be fully effectuated while prejudice to the defendant is avoided, means that the only interest the State may offset against the possibility of prejudice to justify introducing evidence of prior crimes in these cases is the inconvenience which would result from postponing a determination that the defendant falls within a recidivist category until after the jury has found him guilty of the crime currently charged. However, for the purpose of deciding these cases, it is not necessary to consider whether the State's convenience in not conducting a two-stage trial justifies the prejudice which ensues when prior convictions are presented to a jury before it has decided whether the defendant is guilty of the crime charged. For the fact is that Texas has not even this matter of convenience in the method used to find facts regarding prior convictions to balance against the prejudice which ensues from the admission of this prior-convictions evidence. In No. 68, Spencer v. Texas, the defendant offered to stipulate to the truth of that portion of the indictment which alleged that he had been previously convicted of a crime which put him within the scope of a recidivist statute. The prosecutor refused to accept this stipulation, and the Texas courts allowed proof of the prior conviction to be presented to the jury on the ground that, under the recidivist statute dealing with capital crimes, the jury has a choice between the death penalty and life imprisonment. The courts reasoned that the existence of the prior conviction was information which the jury would find relevant in determining sentence. Of course, the offered stipulation dispensed completely with the need for the State to have the fact of prior crimes found by the jury to determine whether a recidivist statute applied to the defendant. Instead, the State tries to justify the refusal to accept the stipulation on the ground that it was relevant to the jury's discretion in ordering the death penalty. But this rationale would justify letting the jury hear, before determining guilt or innocence, all kinds of evidence which might be relevant to sentencing but which has traditionally been considered extremely prejudicial if admitted during the guilt phase of a trial. Thus, this argument would justify admitting probation reports, all kinds of hearsay evidence about the defendant's past, medical and psychiatric reports, and virtually anything else which might seem relevant to the broad discretion exercised in sentencing. The Court evidently believes that it is consistent with due process for a State to introduce evidence of a kind traditionally considered prejudicial which is relevant only to sentencing discretion in a single-stage trial before a finding of guilt. This seems to me the only possible ground for affirming No. 68, since it is obvious that the offer of stipulation removes the need for a finding of fact as to the prior conviction in connection with the recidivist statute.
37
I would reverse No. 68 and remand for a new trial. For me, the State's refusal to accept the stipulation removes any vestige of legitimate interest it might have to balance against the prejudice to the accused. To nevertheless admit the evidence seems to me entirely inconsistent with the way evidence of prior convictions is traditionally handled in our legal system.
38
What I have said about the State's lack of interest in introducing this evidence when the defendant tries to stipulate to the prior conviction seems to me to apply equally to defendants under the Texas procedure who were not offered the opportunity of stipulating to their prior convictions. Because of the unclear state of the law in Texas as to the right to have such a stipulation accepted, the failure of a defendant to volunteer a stipulation cannot be interpreted as indicative of what would have happened if the State made stipulation a right. The Texas Court of Criminal Appeals approved a stipulation procedure for felony cases in Pitcock v. State, 367 S.W.2d 864 (1963), on the convincing ground that, because the recidivist statutes in felony cases provided for automatic sentencing, a stipulation resolved all issues for which the prior convictions were relevant. As the court put it: '(t)o allow its introduction, after such stipulation, resolves no issue and may result in prejudice to the accused.' 367 S.W.2d, at 865. However, two later cases held that refusal by the prosecutor to accept a stipulation, and the introduction of evidence to the jury of prior convictions over an offer of stipulation, was not reversible error. See Sims v. State, 388 S.W.2d 714 (1965); Ross v. State, 401 S.W.2d 844 (1966). Thus, the Texas courts reduced the stipulation procedure to an admonition to the prosecutor, and allowed refusal of the stipulation even though in felony cases the only conceivable reason the prosecutor could have for refusing was to have the benefit of the prejudicial impact of presenting prior convictions to the jury.
39
Because the stipulation procedure had become merely a matter of prosecutorial discretion, the petitioners in Nos. 69 and 70 cannot be said to have waived any right to stipulate their prior convictions, and it seems to me that, in the absence of a stipulation right, they must be regarded in the same light as the petitioner in No. 68, whose offer of stipulation was refused. If a defendant's offer of stipulation removes any legitimate interest the State might otherwise have in presenting prior convictions to the jury for recidivist purposes, and makes the introduction inconsistent with due process, then it seems to me that the protection of the Due Process Clause should not be limited according to whether a defendant actually explored the chance that a prosecutor might accept an offer of stipulation. Since a stipulation procedure would completely effectuate the minimal state interest in having facts found under its recidivist statutes without the inconvenience of a two-part trial, while at the same time offering a defendant the chance to prevent the possibility of prejudice, it seems to me that due process requires this safeguard.
40
If the admission of prior-convictions evidence solely for the purpose of enhancing punishment in the event a defendant is found guilty violates due process when the defendant is not given the right of conceding the prior-convictions evidence to prevent its admission, petitioners' convictions in Nos. 68 and 69 must be reversed. No. 70, however, raises the question of whether a decision that the old Texas procedure violates due process should be retroactively applied to convictions which are final but which are collaterally attacked in the federal courts by habeas corpus. Considerations of fundamental fairness have led to the opening of final judgments in criminal cases when it has appeared that a conviction was achieved in violation of basic constitutional standards. Thus, in the decisions which have been applied retroactively, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), the Court concluded that the constitutional error perceived undermined 'the very integrity of the fact-finding process', Linkletter v. Walker, 381 U.S. 618, 639, 85 S.Ct. 1731, 1743, 14 L.Ed.2d 601 (1965) and the fundamental fairness of the resulting conviction. On the other hand, our decisions in Linkletter and Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966), demonstrate that practices found to violate the Due Process Clause of the Fourteenth Amendment need not necessarily be applied to final convictions. The factors adverted to in those cases for determining whether a constitutional decision should be applied to final cases were the State's reliance on the conduct newly found unconstitutional, whether the purpose of the new rule would be served by fully retroactive effect, and the effect of retroactivity on the administration of justice.
41
In my view, these factors justify limiting the application of the decision I propose to nonfinal convictions. Texas came to rely on the constitutionality of the procedure involved in these cases by this Court's consistent failure to review the practice until the grant of certiorari in these cases. Moreover, there can be no doubt but that application of this rule to final convictions would seriously disrupt the administration of criminal law in Texas as well as the other States which have employed a similar procedure in recidivist cases. Cf. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). Thus, the question becomes whether the procedure which I would hold unconstitutional infected every proceeding of which it was a part with the clear danger of convicting the innocent. See Tehan v. United States ex rel. Shott, supra. It seems to me that the prejudicial impact of the Texas procedure is not so great as to justify application to final cases.
42
In all the cases where the constitutional doctrine has been retroactively applied, the judgment was made that the procedure found erroneous went to the heart of the fairness of the conviction and raised the danger of convicting the innocent. Thus, in Gideon and Douglas, the Court concluded that failure of an indigent defendant to be represented by counsel at trial and on appeal negated the possibility of a fair adversary proceeding. Similarly, the rule of Griffin v. People of State of Illinois was retroactively applied because forcing an indigent to forgo a meaningful appeal because he could not pay for a transcript meant that the availability of a basic part of the State's system for determining guilt or innocence was conditioned on financial resources. This procedure was an obvious and fundamental denial of fairness in the process leading to conviction. In the final area where new rulings have been retroactively applied, Jackson v. Denno, the prejudice to the defendant was that he was not assured of a fair procedure in determining the voluntariness of his confession, and, moreover, that a jury might take into account a confession which it believed to be coerced in determining the defendant's guilt. Obviously, the prejudice which results from the jury's learning of a confession which is obtained unconstitutionally goes directly to the heart of the finding of guilt; and because one reason the Constitution has been held to outlaw involuntary confessions is their unreliability, Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936) (for other reasons see, e.g., Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961); Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961)), the procedure held unconstitutional in Jackson involved a danger of convicting the innocent.
43
In contrast to the unconstitutional procedures involved in the cases discussed above, the admission of prior-convictions evidence in connection with a recidivist statute does not seem to me to justify reversal of final convictions. The fact that prior-convictions evidence has been traditionally admitted when related to guilt or innocence suggests that its prejudice has not been thought so great as to undermine 'the very integrity of the fact-finding process' and to involve a 'clear danger of convicting the innocent.' See Linkletter v. Walker, 381 U.S., at 639, 85 S.Ct., at 1743; Tehan v. United States ex rel. Shott, 382 U.S., at 416, 86 S.Ct., at 465. Consequently, I would not apply a decision in line with this dissent to final convictions, such as No. 70, a habeas corpus proceeding.
44
The decision I propose is consistent with a large body of judicial thought. Two United States Courts of Appeals have adopted the view that recidivist procedures which authorize admission of prior-convictions evidence before the jury determines that the defendant is guilty violate due process. In Lane v. Warden, 320 F.2d 179 (C.A.4th Cir. 1963), the court reasoned that 'it is patent that jurors would be likely to find a man guilty of a narcotics violation more readily if aware that he has had prior illegal association with narcotics. * * * Such a prejudice would clearly violate the standards of impartiality required for a fair trial.' 320 F.2d, at 185. In the same vein, the Third Circuit, in United States ex rel. Scoleri v. Banmiller, 310 F.2d 720 (1962), reasoned that a procedure like the one involved in the three cases at bar would cause the jury to have in mind the defendant's previous convictions in determining his guilt of the crime currently charged. Both these courts, in fact, went farther than I would, in that they applied their decisions to final convictions. In England, the prejudice which results from proof of prior crimes before a finding of guilt has been recognized for more than a century, and the rule has been that a finding as to prior crimes is made in a separate hearing after the finding of guilt.10
45
The majority of States have adopted procedures which cure the prejudice inherent in the procedure in the cases at bar. In all, some 31 States have recidivist procedures which postpone the introduction of prior convictions until after the jury has found the defendant guilty of the crime currently charged.11 And at least three others have substantially mitigated the prejudice of the single-stage recidivist procedure by affording the defendant the right to stipulate to his prior crimes to prevent their introduction at the trial.12 Thus, only 16 States still maintain the needlessly prejudicial procedure exemplified in these three cases. The decision I propose would require only a small number of States to make a relatively minor adjustment in their criminal procedure to avoid the manifest unfairness and prejudice which have already been eliminated in England and in 34 of the United States.
46
I would reverse the convictions in Nos. 68 and 69 and remand for a new trial. In No. 70, I would affirm this final conviction.
47
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS joins, dissenting.
48
I join the opinion of THE CHIEF JUSTICE insofar as that opinion would reverse in Nos. 68 and 69. I would, however, also reverse in No. 70. It seems to me that the constitutional error here involved undermined 'the very integrity of the fact-finding process', Linkletter v. Walker, 381 U.S. 618, 639, 85 S.Ct. 1731, 1743, 14 L.Ed.2d 601, and I would therefore apply the rule retroactively. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908.
1
The recidivist statutes here involved are Articles 62, 63, and 64 of the Vernon's Ann.Texas Pen.Code (1952).
Article 62 provides: 'If it be shown on the trial of a felony less than capital that the defendant has been before convicted of the same offense, or one of the same nature, the punishment on such second or other subsequent conviction shall be the highest which is affixed to the commission of such offenses in ordinary cases.'
Article 63 provides: 'Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary.'
Article 64 provides: 'A person convicted a second time of any offense to which the penalty of death is affixed as an alternate punishment shall not receive on such second conviction a less punishment than imprisonment for life in the penitentiary.'
2
These procedures were embodies in Vernon's Ann.Texas Code Crim.Proc., Art. 642 (1941), providing as follows: 'A jury being impaneled in any criminal action, the cause shall proceed in the following order: 1. The indictment or information shall be read to the jury by the attorney prosecuting. * * * 4. The testimony on the part of the State shall be offered.' By judicial gloss it appears that, at least in noncapital cases, a defendant by stipulating his prior convictions could keep knowledge of them away from the jury. See Pitcock v. State, Tex.Cr.App., 367 S.W.2d 864. But see the decision below in Spencer v. State, Tex.Cr.App., 389 S.W.2d 304, for the inapplicability of the stipulation rule in capital cases. In the view we take of the constitutional issue before us we consider it immaterial whether or not that course was open to any of the petitioners. Subsequent to the present convictions Texas has passed a new law respecting the procedure governing recidivist cases, the effect of which seems to be that except in capital cases the jury is not given the recidivist issue until it has first found the defendant guilty under the principal charge. Vernon's Ann.Texas Code Crim.Proc., Art. 36.01, effective January 1, 1966. Since these cases were all tried under the older procedure, the new statute is not before us.
3
The question of whether Spencer is properly here as an appeal, a matter which we postponed to consideration of the merits, is a tangled one. See Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 42 S.Ct. 106, 66 L.Ed. 239; Hart & Wechsler, The Federal Courts and the Federal System 565—567 (1953). Rather than undertake to resolve it, we think it more profitable to dismiss this appeal, treat it as a petition for certiorari, 28 U.S.C. § 2103, and grant the petition, particularly as there is pending in the Court Spencer's timely filed alternative petition for certiorari, which has been held to await the outcome of this appeal. Accordingly we have in this opinion referred to Spencer as a 'petitioner.'
4
The Reed case, unlike the Spencer and Bell cases which come to us from the Court of Criminal Appeals of Texas, is here from a judgment of the United States Court of Appeals for the Fifth Circuit affirming the District Court's dismissal of a writ of habeas corpus on the ground that the Texas recidivist procedure did not offend the United States Constitution. 343 F.2d 723.
5
The Third Circuit in United States ex rel. Scoleri v. Banmiller, 310 F.2d 720, held a similar Pennsylvania procedure, when applied in capital cases, unconstitutional. The Fourth Circuit held a comparable Maryland recidivist practice unconstitutional in all cases. Lane v. Warden, 320 F.2d 179. The Fifth Circuit in Breen v. Beto, 341 F.2d 96, and again in the Reed case before us today, 343 F.2d 723, and the Eighth Circuit in Wolfe v. Nash, 313 F.2d 393, have held such procedures constitutional. The Ninth Circuit in Powell v. United States, 35 F.2d 941, sustained the procedure in the context of a second offense under § 29 of the National Prohibition Act, 41 Stat. 316.
6
See annotations at 58 A.L.R. 20, 82 A.L.R. 345, 79 A.L.R.2d 826; Note, Recidivist Procedures, 40 N.Y.U.L.Rev. 332 (1965).
7
These Texas cases reflect the rules prevailing in nearly all common-law jurisdictions. See generally McCormick, Evidence §§ 157—158 (1954); 1 Wharton's Criminal Evidence §§ 221—243 (Anderson ed. 1955); 1 Wigmore, Evidence §§ 215—218 (3d ed. 1940 and 1964 Supp.); Note, Other Crimes Evidence at Trial, 70 Yale L.J. 763 (1961). For the English rules, substantially similar, see Cross, Evidence 292—333 (2d ed. 1963). Recent commentators have criticized the rule of general exclusion, and have suggested a broader range of admissibility. Model Code of Evidence, Rule 311; Carter, The Admissibility of Evidence of Similar Facts, 69 L.Q.Rev. 80 (1953), 70 L.Q.Rev. 214 (1954); Note, Procedural Protections of the Criminal Defendant, 78 Harv.L.Rev. 426, 435—451 (1964). For the use of this type of evidence in continental jurisdictions, see Glanville Williams, The Proof of Guilt 181 (2d ed. 1958); 1 Wigmore, supra § 193.
8
Indeed the most recent scholarly study of jury behavior does not sustain the premise that juries are especially prone to prejudice when prior-crime evidence is admitted as to credibility. Kalven & Zeisel, The American Jury (1966). The study contrasts the effect of such evidence on judges and juries and concludes that 'Neither the one nor the other can be said to be distinctively gullible or skeptical.' Id., at 180.
9
See 'Careers in Crime,' a statistical survey collected in Uniform Crime Reports for the United States—1965, p. 27 (Dept. of Justice, 1966). The Statistical Abstract of the United States, 1966, reveals that 62% of prisoners committed to federal prisons in the year ending June 30, 1965, had been previously committed. Id., at 163.
10
For a survey and analysis of the various recidivist procedures, see Note, Recidivist Procedures, 40 N.Y.U.L.Rev. 332 (1965); see also Note, The Pleading and Proof of Prior Convictions in Habitual Criminal Prosecutions, 33 N.Y.U.L.Rev. 210 (1958).
11
Texas juries have had authority to impose punishment since 1846, but in all but 11 States this power is held by the judge. See Reid, The Texas Code of Criminal Procedure, 44 Tex.L.Rev. 983, 1008—1009 (1966).
12
See, e.g., Lane v. Warden, 4 Cir., 320 F.2d 179; Note, 40 N.Y.U.L.Rev. 332, 348 (1965). Other commentators have cautioned against a too hasty adoption of the two-stage trial. See the Second Circuit decision in United States v. Curry, 358 F.2d 904, 914—915, where the court discussed the procedure as it applied in federal capital cases, and concluded: 'Given the many considerations which may affect the necessity for a two-stage trial in each case, and considering the questionable desirability of this untested technique, we think it best to leave this question to the discretion of the trial court.' See also the discussion of the practical and administrative disadvantages of such a procedure in Frady v. United States, 121 U.S.App.D.C. 78, 108—109, 348 F.2d 84, 114—115 (dissenting opinion). We have been presented with no positive information concerning actual experience with a separate penalty procedure that would bear on a decision to impose it upon all the States as a matter of constitutional law. One study suggests that as a practical matter such a procedure has not proved helpful to defendants: 'The California experience, dating back to 1957, has rather been that defense counsel have often neglected to prepare adequately for the penalty phase and have exhibited a lack of sophistication concerning what facts should be advanced as mitigating. Apparently, the approach of defense lawyers has been to devote the bulk of their efforts to the substantive issue of guilt and to relegate the penalty phase to a minor role. On the other hand, the prosecution has taken complete advantage of the penalty phase and has attempted to marshal and to present to the jury all of the aggravating circumstances that exist.' Note, Executive Clemency in Capital Cases, 39 N.Y.U.L.Rev. 136, 167 (1964).
13
In cases where, as in Spencer, a jury itself fixes the penalty, the effect of the emphasis in THE CHIEF JUSTICE'S separate opinion upon the use of a stipulation would in reality be to require, as a matter of federal constitutional law, a two-stage jury trial. For a stipulation no less than evidentiary proof would bring the fact of prior convictions before the trial jury.
1
See opinion of THE CHIEF JUSTICE, post, at 586, n. 11.
2
See opinion of the Court, ante, at 556, n. 2.
1
See generally Note, Recidivist Procedures, 40 N.Y.U.L.Rev. 332 (1965).
2
Texas Code Crim.Proc., Art. 36.01, effective January 1, 1966. The new two-stage procedure does not apply in capital cases, the reason for the distinction apparently being because in capital cases the jury has a choice of punishment under the applicable recidivist statute. The validity of this distinction will be discussed below,
3
Professor McCormick states:
'The rule is that the prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character.' McCormick, Evidence § 157 (1954 ed.).
Dean Wigmore agrees with this statement of the general rule of exclusion, 1 Wigmore, Evidence §§ 193—194 (3d ed. 1940). As Wigmore points out, evidence of prior crimes is objectionable, not because it is not somewhat probative, but because the jury is likely to give it more weight than it deserves and might decide that the defendant deserves to be punished because of the past crime without regard to whether he is guilty of the crime currently charged.
4
See, e.g., Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959); Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948); Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077 (1892).
In Michelson, the Court stated:
'Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant's evil character to establish a probability of his guilt. Not that the law invests the defendant with a presumption of good character, Greer v. United States, 245 U.S. 559, 38 S.Ct. 209, 62 L.Ed. 469, but it simply closes the whole matter of character, disposition and reputation on the prosecution's case-in-chief. The state may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.' 335 U.S., at 475 476, 69 S.Ct., at 218.
In Marshall, the Court reversed a conviction where it was shown that newspaper accounts of the defendant's prior convictions had been seen by a substantial number of jurors. The Court stated: '* * * We have here the exposure of jurors to information of a character which the trial judge ruled was so prejudicial it could not be directly offered as evidence. The prejudice to the defendant is almost certain to be as great when that evidence reaches the jury through news accounts as when it is a part of the prosecution's evidence.' 360 U.S., at 312—313, 79 S.Ct., at 1173.
In Boyd, the defendants were charged with murder following an attempt to rob, and the prosecution introduced evidence that the defendants had committed other robberies before the one involved in the crime charged. The Court, in an opinion by the first Mr. Justice Harlan, held the evidence of other crimes inadmissible: '* * * Those robberies may have been committed by the defendants in March, and yet they may have been innocent of the murder of Dansby in April. Proof of them only tended to prejudice the defendants with the jurors, to draw their minds away from the real issue, and to produce the impression that they were wretches whose lives were of no value to the community, and who were not entitled to the full beneft of the rules prescribed by law for the trial of human beings charged with crime involving the punishment of death.' 142 U.S., at 458, 12 S.Ct., at 295.
5
See, e.g., Lovely v. United States, 169 F.2d 386, 389 (C.A.4th Cir. 1948):
'The rule which thus forbids the introduction of evidence of other offenses having no reasonable tendency to prove the crime charged, except in so far as they may establish a criminal tendency on the part of the accused, is not a mere technical rule of law. It arises out of the fundamental demand for justice and fairness which lies at the basis of our jurisprudence. If such evidence were allowed, not only would the time of courts be wasted in the trial of collateral issues, but persons accused of crime would be greatly prejudiced before juries and would be otherwise embarrassed in presenting their defenses on the issues really on trial.'
Railton v. United States, 127 F.2d 691, 693 (C.A.5th Cir. 1942):
'* * * It is logical to conclude, and very apt to be concluded, that because a man was dishonest once he will steal again. It is certainly 'more probable' that a crooked official did steal than if he were an upright one. Yet our law forbids these very premises. It cannot be shown that the accused has committed other similar crimes to show that it is probable he committed the one charged.'
Cf. also Tedesco v. United States, 118 F.2d 737 (C.A.9th Cir. 1941); Swann v. United States, 195 F.2d 689 (C.A.4th Cir. 1952); United States v. Jacangelo, 281 F.2d 574 (C.A.3d Cir. 1960).
6
Texas recognizes this general rule, Seay v. State, Tex.Cr.App., 395 S.W.2d 40. Other typical decisions are People v. Molineux, 168 N.Y. 264, 61 N.E. 286, 62 L.R.A. 193 (1901); State v. Scott, 111 Utah 9, 175 P.2d 1016 (1947). See also State v. Myrick, 181 Kan. 1056, 317 P.2d 485 (1957); Scarbrough v. State, 204 Miss. 487, 37 So.2d 748 (1948).
7
See generally exceptions set out in McCormick, Evidence § 157.
8
See, e.g., Note, Other Crimes Evidence at Trial: of Balancing and Other Matters, 70 Yale L.J. 763 (1961).
9
See Stebbing, A Modern Introduction to Logic 88 (6th ed. 1948).
10
Coinage Offences Act, 1861, 24 & 25 Vict., c. 99; Act of 6 & 7 Will. 4, c. 111; Reg. v. Shuttleworth, 3 Car. & K. 375.
11
The States which have adopted a procedure either by legislation or judicial decision which separates the determination of prior convictions from the determination of guilt of the crime currently charged are: Alaska, Alaska Stat. § 12.55.060 (1962); Arkansas, Miller v. State, 239 Ark. 836, 394 S.W.2d 601 (1965); Colorado, Heinze v. People, 127 Colo. 54, 253 P.2d 596 (1953); Connecticut, State v. Ferrone, 96 Conn. 160, 113 A. 452 (1921); Delaware, Del.Code Ann., Tit. 11, § 3912(b) (Supp.1964); Florida, Fla.Stat.Ann. § 775.11 (1965); Shargaa v. State, Fla., 102 So.2d 814 (1958); Idaho, State v. Johnson, 86 Idaho 51, 383 P.2d 326 (1963); Illinois, Ill.Rev.Stat. c. 38, §§ 603.1—603.9 (1963), Ill.Rev.Stat. c. 38, § 22—43 (1965); Kansas, Kan.Gen.Stat.Ann. § 21—107a (1949); Louisiana, La.Rev.Stat.Ann. § 15:529.1(D) (Supp.1962); Maryland, Md.Rule of Proc. 713; Michigan, Mich.Stat.Ann. § 28.1085 (1954), Comp.Laws 1948, § 769.13; Minnesota, Minn.Stat.Ann. § 609.16; Missouri, Mo.Ann.Stat. § 556.280 (1953); Nebraska, Neb.Rev.Stat. § 29—2221 (1964); New York, N.Y.Penal Law, McKinney's Consol.Laws, c. 40, § 1943; New Mexico, Johnson v. Cox, 72 N.M. 55, 380 P.2d 199 (1963); North Dakota, N.D.Cent.Code § 12—06—23 (1960); Ohio, Ohio Rev.Code Ann. § 2961.13 (1954); Oklahoma, Okla.Stat.Ann.Tit. 22, § 860 (Supp.1964), Harris v. State, Okl.Cr.App., 369 P.2d 187 (1962); Oregon, Ore.Rev.Stat. § 168.065 (1961); Pennsylvania, Pa.Stat.Ann.Tit. 18, § 5108 (1963); South Dakota, S.D.Code § 13.0611(3) (1939); Tennessee, Tenn.Code Ann. § 40—2801 (1955), Harrison v. State, Tenn., 394 S.W.2d 713 (1965); Texas, Texas Code Crim.Proc. Art. 36.01 (1966); Utah, Utah Code Ann. § 76—1—19 (1953), State v. Stewart, 110 Utah 203, 171 P.2d 383 (1946); Virginia, Va.Code Ann. § 53—296 (1958); Washington, State v. Kirkpatrick, 181 Wash. 313, 43 P.2d 44 (1935); West Virginia, W.Va.Code Ann. § 6131 (1961).
In addition to these 29 States, two States take prior convictions into account in the determination of when a convict is eligible for parole, and entrust the fact-finding determination to parole boards: Mississippi, Miss.Code Ann. § 4004—03 (Supp.1964), as amended, Miss.Laws 1964, c. 366; New Jersey, N.J.Stat.Ann. § 30:4—123.12 (1964), N.J.Rev.Stat. § 2A:85—13 (Supp.1966), N.J.S.A. Thus, 31 States in all have adopted wholly nonprejudicial procedures in connection with their recidivist statutes.
12
The three States which have adopted a stipulation procedure are: Arizona, Ariz.Rule Crim.Proc. 180, 17 A.R.S., Ariz.Code Ann. § 44—1004 (1939), Montgomery v. Eyman, 96 Ariz. 55, 391 P.2d 915 (1964); California, Cal.Penal Code § 1025, People v. Hobbs, 37 Cal.App.2d 8, 98 P.2d 775 (1940); and Wisconsin, State v. Meyer, 258 Wis. 326, 46 N.W.2d 341 (1951).
| 01
|
385 U.S. 545
87 S.Ct. 643
17 L.Ed.2d 599
Phil WHITUS and Leon Davis, Petitioners,v.STATE OF GEORGIA. Phil WHITUS and Leon Davis, Petitioners, v. STATE OF GEORGIA.
Nos. 650 and 253.
Argued Dec. 7, 1966.
Decided Jan. 23, 1967.
Charles Morgan, Jr., Atlanta, Ga., and P. Walter Jones, Albany, Ga., for petitioners.
Fred B. Hand, Jr., Pelham, Ga., and E. Freeman Leverett, Atlanta, Ga., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
Once again we are confronted with the question of racial discrimination in the selection of the grand and petit juries which have respectively indicted petitioners and found them guilty of the offense of murder. The claim is that Georgia's system of jury selection resulted in the systematic exclusion of Negroes from both the grand and petit juries in that its law required jury commissioners to select the names of prospective jurors from the books of the county tax receiver which were maintained on a racially segregated basis. Ga.Code Ann. § 59—106. The grand jury question is raised in both these cases and we consolidated them for argument and do likewise on disposition.
2
No. 253 is an interlocutory appeal from a judgment denying petitioners' claim as to the grand jury which indicted them. Georgia law authorizes such an appeal, Ga.Code Ann. § 6—701, and it was first perfected to the Supreme Court of Georgia which transferred it to the Georgia Court of Appeals. That court affirmed the denial of the claim of discrimination. 112 Ga.App. 328, 145 S.E.2d 83. We granted certiorari. 384 U.S. 1000, 86 S.Ct. 1971, 16 L.Ed.2d 1014 (1966). In view of the lack of finality of the order in this case, we dismiss the writ in No. 253 as improvidently granted and proceed to dispose of both the grand and petit juries' questions in No. 650.
3
Following affirmance by the Georgia Court of Appeals of the interlocutory appeal, the trial court proceeded to try petitioners' cases on the merits. After a challenge to the array of petit jurors was denied, petitioners were put to trial and were convicted. The Supreme Court of Georgia affirmed. Whitus v. State, 222 Ga. 103, 149 S.E.2d 130; Davis v. State, 222 Ga. 114, 149 S.E.2d 130. We granted certiorari. 385 U.S. 813, 87 S.Ct. 183, 17 L.Ed.2d 54. We find that the circumstances here, unexplained by the State, are sufficient to support petitioners' claims of discrimination and reverse the judgments.
I.
4
The petitioners have been here twice before. They were originally convicted in 1960 and the Supreme Court of Georgia affirmed. Davis v. State, 216 Ga. 110, 114 S.E.2d 877; Whitus v. State, 216 Ga. 284, 116 S.E.2d 205, cert. denied, 365 U.S. 831, 81 S.Ct. 718, 5 L.Ed.2d 708 (1961). Thereafter a writ of habeas corpus was filed in the United States District Court for the Southern District of Georgia in which, for the first time, petitioner Whitus attacked the composition of the grand and petit juries. The District Court dismissed the writ and the Court of Appeals affirmed. Whitus v. Balkcom, 5 Cir., 299 F.2d 844. On writ of certiorari, we vacated that judgment and remanded the case to the District Court for a hearing on the claim of discrimination. Whitus v. Balkcom, 370 U.S. 728, 82 S.Ct. 1575, 8 L.Ed.2d 803 (1962). On remand, the District Court again dismissed the petition on the ground that the claim had been waived since it was not raised in the Georgia courts. The Court of Appeals reversed, holding that Negroes had been systematically excluded from both the grand and petit juries. Whitus v. Balkcom, 5 Cir., 333 F.2d 496. Its ruling was based on a finding that 45% of the population of the county was Negro; yet, none had ever served on juries within the memory of the witnesses.
II.
5
After the Court of Appeals set aside the first convictions, Whitus v. Balkcom, ibid., the Superior Court of Mitchell County directed the jury commissioners for the county to revise the jury list. Georgia law requires that the six commissioners appointed by the Superior Court 'select from the books of the tax receiver upright and intelligent citizens to serve as jurors, and shall write the names of the persons so selected on tickets.' Ga.Code Ann. § 59—106. They are also directed to select from this group a sufficient number, not exceeding two-fifths of the whole number, of the most experienced, intelligent, and upright citizens to serve as grand jurors, writing their names on other tickets. The entire group, excepting those selected as grand jurors, constitutes the body of traverse jurors. The tickets on which the names of the traverse jurors are placed are deposited in jury boxes and entered on the minutes of the Superior Court. Ga.Code Ann. §§ 59—108, 59—109. The veniremen are drawn from the jury boxes each term of court and it is from them that the juries are selected.
6
The State admits that prior to 1965, the tax return sheets furnished by the State Revenue Department, Ga.Code Ann. § 92—6302, were white for white taxpayers and yellow for Negro taxpayers. The 1964 tax digest, and all digests prior to 1964, were made up from these segregated tax returns. Furthermore, the jury lists for each county are required by law to be made up from the tax digest. Ga.Code Ann. § 59—106. The State further admits that the 'revised' jury list from which both the grand and petit juries serving in these cases were selected, had been made up by reference to the old jury list, which the Court of Appeals had condemned, and the 1964 tax digest, which had been prepared from the white and yellow tax return sheets of that year. However, the jury commissioners did not use the 1964 tax returns themselves, nor the 1965 tax digest which had not yet been made up. The tax digest appears to have been in one volume but was segregated into two sections—one for white and the other for Negro taxpayers. The Negroes whose names were included in the tax digest were designated by a '(c)' being placed opposite their names as required by Ga.Code Ann. § 92—6307.
7
The three jury commissioners who appeared as witnesses testified that they were not aware of the letter (c) appearing after the names of the Negroes on the 1964 tax digest; that they never included or excluded anyone on the 'revised' jury list because of race or color; that they placed on the 'revised' jury list those persons whom they knew personally from their respective communities; that there were around 600 selected; and that the 'revised' list, which the commissioners themselves prepared, had no designation of race upon it.
III.
8
For over fourscore years it has been federal statutory law, 18 Stat. 336 (1875), 18 U.S.C. § 243, and the law of this Court as applied to the States through the Equal Protection Clause of the Fourteenth Amendment, that a conviction cannot stand if it is based on an indictment of a grand jury or the verdict of a petit jury from which Negroes were excluded by reason of their race. Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880); see also Pierre v. State of Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939). There is no controversy as to the constitutional principle—the question involved is its application to the facts disclosed in this record. It is our province to 'analyze the facts in order that the appropriate enforcement of the federal right may be assured,' Norris v. State of Alabama, 294 U.S. 587, 590, 55 S.Ct. 579, 580, 79 L.Ed. 1074 (1935), and while the conclusions reached by the highest court of the State 'are entitled to great respect * * * it becomes our solemn duty to make independent inquiry and determination of the disputed facts * * *.' Pierre v. State of Louisiana, supra, 306 U.S. at 358, 59 S.Ct., at 539. The burden is, of course, on the petitioners to prove the existence of purposeful discrimination, Tarrance v. State of Florida, 188 U.S. 519, 23 S.Ct. 402, 47 L.Ed. 572 (1903). However, once a prima facie case is made out the burden shifts to the prosecution.
9
It is undisputed that the 'revised' jury list was made up from the 1964 tax digest, the old jury list and the personal acquaintance of the commissioners with persons in their respective communities. It is admitted that the old jury list had been condemned as illegal by the Court of Appeals when it reversed petitioners' first convictions. It is conceded that 27.1% of the taxpayers in the county are Negroes; that the county had a population in 1960 of 10,206 people over the age of 21 years, of whom 4,706 were male,1 with 2,004, or 42.6%, of this latter number being Negroes; that 33 prospective jurors were drawn for grand jury service for the term of court during which petitioners were indicted, three being Negroes, of whom one actually served on the grand jury of 19 persons; that a venire of 90 persons was used for the selection of the petit jury which tried petitioners, of which number at least seven were Negroes; and, that no Negro was accepted on the petit jury.
10
Furthermore, it is obvious that the 1964 tax digest was required to be made under the same segregated system as were the previous digests, and suffered the same deficiency. Indeed, the State employed the same procedure which it concedes resulted in discrimination in the petitioners' first trial.
11
We believe that this proof constituted a prima facie case of purposeful discrimination. While the commissioners testified that no one was included or rejected on the jury list because of race or color this has been held insufficient to overcome the prima facie case. Norris v. State of Alabama, supra, 294 U.S. at 598, 55 S.Ct. at 583. The State also insists that the revision of the jury list made evidence of the former practice of exclusion irrelevant. However, as we have seen, this revision was suspect. At the least it was based on the old jury roll which had been specifically condemned by the Court of Appeals and the 1964 tax digest which was suspect because of the system by which it was required to be prepared. The Court of Appeals condemned this same system in reversing the original convictions.
12
We believe that the circumstances here are akin to those condemned in Avery v. State of Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953). There the names of the prospective Negro jurors were placed in the jury box on yellow colored tickets. Here the commissioners used the old jury roll which had been condemned by the Court of Appeals and the 1964 tax digest which was required by law to be, and was, maintained on a racially segregated basis. Moreover, it was prepared from the tax returns of Negroes which, at the time, were required to be filed on yellow sheets of paper while the returns of white persons were on white sheets. It is this old 'system of selection' condemned by the Court of Appeals 'and the resulting danger of abuse which was struck down in Avery * * *.' Williams v. State of Georgia, 349 U.S. 375, 382, 75 S.Ct. 814, 819, 99 L.Ed. 1161 (1955). Nor does the fact that the commissioners selected prospective jurors on the basis of personal acquaintance correct the evil. See Cassell v. State of Texas, 339 U.S. 282, 289, 70 S.Ct. 629, 632, 94 L.Ed. 839 (1950).
13
Under such a system the opportunity for discrimination was present and we cannot say on this record that it was not resorted to by the commissioners. Indeed, the disparity between the percentage of Negroes on the tax digest (27.1%) and that of the grand jury venire (9.1%) and the petit jury venire (7.8%) strongly points to this conclusion.2 Although the system of selection used here had been specifically condemned by the Court of Appeals, the State offered no testimony as to why it was continued on retrial. The State offered no explanation for the disparity between the percentage of Negroes on the tax digest and those on the venires, although the digest must have included the names of large numbers of 'upright and intelligent' Negroes as the statutory qualification required. In any event the State failed to offer any testimony indicating that the 27.1% of Negroes on the tax digest were not fully qualified. The State, therefore, failed to meet the burden of rebutting the petitioners' prima facie case.
14
It is contended by petitioners that in the event of a reversal of the decision below they should be set free rather than retried. This contention arises from language used by the Court of Appeals in reversing the original convictions. The court expressed its 'present opinion that a period of eight months * * * will be sufficient to afford the State an opportunity to take the necessary steps to reindict and retry the petitioners.' Whitus v. Balkcom, supra, 333 F.2d, at 510. The theory is that a constitutional procedure was not provided within the eight-month period and that a remand for a new trial would be beyond that period. We are not persuaded by this logic. The proper disposition where a state court conviction is set aside on the ground of jury discrimination is stated in Hill v. State of Texas, 316 U.S. 400, 406, 62 S.Ct. 1159, 1162, 86 L.Ed. 559 (1942):
15
'A prisoner whose conviction is reversed by this Court need not go free if he is in fact guilty, for Texas may indict and try him again by the procedure which conforms to constitutional requirements.'
16
See also Patton v. State of Mississippi, 332 U.S. 463, 469, 68 S.Ct. 184, 187, 92 L.Ed. 76 (1947); Eubanks v. State of Louisiana, 356 U.S. 584, 589, 78 S.Ct 970, 974, 2 L.Ed.2d 991 (1958).
17
The judgments are, therefore, reversed for further proceedings not inconsistent with this opinion.
18
It is so ordered.
19
Reversed.
1
Women, while qualified to serve, are not compelled to serve and may be excused upon request. Ga.Code Ann. § 59—124.
2
While unnecessary to our disposition of the instant case, it is interesting to note the 'probability' involved in the situation before the Court.
The record does not indicate how many Negroes were actually on the 'revised' jury list of approximately 600 names. One jury commissioner, however, said his best estimate was 25% to 30%, which is in close proximity to the 27.1% who were admittedly on the tax digest for 1964. Assuming that 27% of the list was made up of the names of qualified Negroes, the mathematical probability of having seven Negroes on a venire of 90 is .000006. See Finkelstein, The Application of Statistical Decision Theory to the Jury Discrimination Cases, 80 Harv.L.Rev. 338 (1966).
| 12
|
385 U.S. 589
87 S.Ct. 675
17 L.Ed.2d 629
Harry KEYISHIAN et al., Appellants,v.The BOARD OF REGENTS OF the UNIVERSITY OF the STATE OF NEW YORK et al.
No. 105.
Argued Nov. 17, 1966.
Decided Jan. 23, 1967.
[Syllabus from pages 589-591 intentionally omitted]
Richard Lipsitz, Buffalo, N.Y., for appellants.
Ruth V. Iles and John C. Crary, Jr., Albany, N.Y., for appellees.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Appellants were members of the faculty of the privately owned and operated University of Buffalo, and became state employees when the University was merged in 1962 into the State University of New York, an institution of higher education owned and operated by the State of New York. As faculty members of the State University their continued employment was conditioned upon their compliance with a New York plan, formulated partly in statutes and partly in administrative regulations,1 which the State utilizes to prevent the appointment or retention of 'subversive' persons in state employment.
2
Appellants Hochfield and Maud were Assistant Professors of English, appellant Keyishian an instructor in English, and appellant Garver, a lecturer in Philosophy. Each of them refused to sign, as regulations then in effect required, a certificate that he was not a Communist, and that if he had ever been a Communist, he had communicated that fact to the President of the State University of New York. Each was notified that his failure to sign the certificate would require his dismissal. Keyishian's one-year-term contract was not renewed because of his failure to sign the certificate. Hochfield and Garver, whose contracts still had time to run, continue to teach, but subject to proceedings for their dismissal if the constitutionality of the New York plan is sustained. Maud has voluntarily resigned and therefore no longer has standing in this suit.
3
Appellant Starbuck was a nonfaculty library employee and part-time lecturer in English. Personnel in that classification were not required to sign a certificate but were required to answer in writing under oath the question, 'Have you ever advised or taught or were you ever a member of any society or group of persons which taught or advocated the doctrine that the Government of the United States or of any political subdivisions thereof should be overthrown or overturned by force, violence or any unlawful means?' Starbuck refused to answer the question and as a result was dismissed.
4
Appellants brought this action for declaratory and injunctive relief, alleging that the state program violated the Federal Constitution in various respects. A threejudge federal court held that the program was constitutional. 255 F.Supp. 981.2 We noted probable jurisdiction of appellants' appeal, 384 U.S. 998, 86 S.Ct. 1921, 16 L.Ed.2d 1012. We reverse.
I.
5
We considered some aspects of the constitutionality of the New York plan 15 years ago in Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517. That litigation arose after New York passed the Feinberg Law which added § 3022 to the Education Law, McKinney's Consol. Laws, c. 16.3 The Feinberg Law was enacted to implement and enforce two earlier statutes. The first was a 1917 law, now § 3021 of the Education Law, under which 'the utterance of any treasonable or seditious word or words or the doing of any treasonable or seditious act' is a ground for dismissal from the public school system. The second was a 1939 law which was § 12—a of the Civil Service Law when Adler was decided and, as amended, is now § 105 of that law, McKinney's Consol.Laws, c. 7. This law disqualifies from the civil service and from employment in the educational system any person who advocates the overthrow of government by force, violence, or any unlawful means, or publishes material advocating such overthrow or organizes or joins any society or group of persons advocating such doctrine.
6
The Feinberg Law charged the State Board of Regents with the duty of promulgating rules and regulations providing procedures for the disqualification or removal of persons in the public school system who violate the 1917 law or who are ineligible for appointment to or retention in the public school system under the 1939 law. The Board of Regents was further directed to make a list, after notice and hearing, of 'subversive' organizations, defined as organizations which advocate the doctrine of overthrow of government by force, violence, or any unlawful means. Finally, the Board was directed to provide in its rules and regulations that membership in any listed organization should constitute prima facie evidence of disqualification for appointment to or retention in any office or position in the public schools of the State.
7
The Board of Regents thereupon promulgated rules and regulations containing procedures to be followed by appointing authorities to discover persons ineligible for appointment or retention under the 1939 law, or because of violation of the 1917 law. The Board also announced its intention to list 'subversive' organizations after requisite notice and hearing, and provided that membership in a listed organization after the date of its listing should be regarded as constituting prima facie evidence of disqualification, and that membership prior to listing should be presumptive evidence that membership has continued, in the absence of a showing that such membership was terminated in good faith. Under the regulations, an appointing official is forbidden to make an appointment until after he has first inquired of an applicant's former employers and other persons to ascertain whether the applicant is disqualified or ineligible for appointment. In addition, an annual inquiry must be made to determine whether an appointed employee has ceased to be qualified for retention, and a report of findings must be filed.
8
Adler was a declaratory judgment suit in which the Court held, in effect, that there was no constitutional infirmity in former § 12-a or in the Feinberg Law on their faces and that they were capable of constitutional application. But the contention urged in this case that both § 3021 and § 105 are unconstitutionally vague was not heard or decided. Section 3021 of the Education Law was challenged in Adler as unconstitutionally vague, but because the challenge had not been made in the pleadings or in the proceedings in the lower courts, this Court refused to consider it. 342 U.S., at 496, 72 S.Ct., at 386. Nor was any challenge on grounds of vagueness made in Adler as to subdivisions 1(a) and (b) of § 105 of the Civil Service Law.4 Subdivision 3 of § 105 was not added until 1958. Appellants in this case timely asserted below the unconstitutionality of all these sections on grounds of vagueness and that question is now properly before us for decision. Moreover, to the extent that Adler sustained the provision of the Feinberg Law constituting membership in an organization advocating forceful overthrow of government a ground for disqualification, pertinent constitutional doctrines have since rejected the premises upon which that conclusion rested. Adler is therefore not dispositive of the constitutional issues we must decide in this case.
II.
9
A 1953 amendment extended the application of the Feinberg Law to personnel of any college or other institution of higher education owned and operated by the State or its subdivisions. In the same year, the Board of Regents, after notice and hearing, listed the Communist Party of the United States and of the State of New York as 'subversive organizations.' In 1956 each applicant for an appointment or the renewal of an appointment was required to sign the so-called 'Feinberg Certificate' declaring that he had read the Regents Rules and understood that the Rules and the statutes constituted terms of employment, and declaring further that he was not a member of the Communist Party, and that if he had ever been a member he had communicated that fact to the President of the State University. This was the certificate that appellants Hochfield, Maud, Keyishian, and Garver refused to sign.
10
In June 1965, shortly before the trial of this case, the Feinberg Certificate was rescinded and it was announced that no person then employed would be deemed ineligible for continued employment 'solely' because he refused to sign the certificate. In lieu of the certificate, it was provided that each applicant be informed before assuming his duties that the statutes, §§ 3021 and 3022 of the Education Law and § 105 of the Civil Service Law, constituted part of his contract. He was particularly to be informed of the disqualification which flowed from membership in a listed 'subversive' organization. The 1965 announcement further provides: 'Should any question arise in the course of such inquiry such candidate may request * * * a personal interview. Refusal of a candidate to answer any question relevant to such inquiry by such officer shall be sufficient ground to refuse to make or recommend appointment.' A brochure is also given new applicants. It outlines and explains briefly the legal effect of the statutes and invites any applicant who may have any question about possible disqualification to request an interview. The covering announcement concludes that 'a prospective appointee who does not believe himself disqualified need take no affirmative action. No disclaimer oath is required.'
11
The change in procedure in no wise moots appellants' constitutional questions raised in the context of their refusal to sign the now abandoned Feinberg Certificate. The substance of the statutory and regulatory complex remains and from the outset appellants' basic claim has been that they are aggrieved by its application.
III.
12
Section 3021 requires removal for 'treasonable or seditious' utterances or acts. The 1958 amendment to § 105 of the Civil Service Law, now subdivision 3 of that section, added such utterances or acts as a ground for removal under that law also.5 The same wording is used in both statutes—that 'the utterance of any treasonable or seditious word or words or the doing of any treasonable or seditious act or acts' shall be ground for removal. But there is a vital difference between the two laws. Section 3021 does not define the terms 'treasonable or seditious' as used in that section; in contrast, subdivision 3 of § 105 of the Civil Service Law provides that the terms 'treasonable word or act' shall mean 'treason' as defined in the Penal Law and the terms 'seditious word or act' shall mean 'criminal anarchy' as defined in the Penal Law.
13
Our experience under the Sedition Act of 1798, 1 Stat. 596, taught us that dangers fatal to First Amendment freedoms inhere in the word 'seditious.' See New York Times Co. v. Sullivan, 376 U.S. 254, 273—276, 84 S.Ct. 710, 722—724, 11 L.Ed.2d 686. And the word 'treasonable,' if left undefined, is no less dangerously uncertain. Thus it becomes important whether, despite the omission of a similar reference to the Penal Law in § 3021, the words as used in that section are to be read as meaning only what they mean in subdivision 3 of § 105. Or are they to be read more broadly and to constitute utterances or acts 'seditious' and 'treasonable' which would not be so regarded for the purposes of § 105?
14
Even assuming that 'treasonable' and 'seditious' in § 3021 and § 105, subd. 3 have the same meaning, the uncertainty is hardly removed. The definition of 'treasonable' in the Penal Law presents no particular problem. The difficulty centers upon the meaning of 'seditious.' Subdivision 3 equates the term 'seditious' with 'criminal anarchy' as defined in the Penal Law. Is the reference only to Penal Law, McKinney's Consol.Laws c. 40, § 160, defining criminal anarchy as 'the doctrine that organized government should be overthrown by force or violence, or by assassination of the executive head or of any of the executive officials of government, or by any unlawful means'? But that section ends with the sentence 'The advocacy of such doctrine either by word of mouth or writing is a felony.' Does that sentence draw into § 105, Penal Law § 161, proscribing 'advocacy of criminal anarchy'? If so, the possible scope of 'seditious' utterances or acts has virtually no limit. For under Penal Law § 161, one commits the felony of advocating criminal anarchy if he '* * * publicly displays any book * * * containing or advocating, advising or teaching the doctrine that organized government should be overthrown by force, violence or any unlawful means.'6 Does the teacher who carries a copy of the Communist Manifesto on a public street thereby advocate criminal anarchy? It is no answer to say that the statute would not be applied in such a case. We cannot gainsay the potential effect of this obscure wording on 'those with a conscientious and scrupulous regard for such undertakings.' Baggett v. Bullitt, 377 U.S. 360, 374, 84 S.Ct. 1316, 1323, 12 L.Ed.2d 377. Even were it certain that the definition referred to in § 105 was solely Penal Law § 160, the scope of § 105 still remains indefinite. The teacher cannot know the extent, if any, to which a 'seditious' utterance must transcend mere statement about abstract doctrine, the extent to which it must be intended to and tend to indoctrinate or incite to action in furtherance of the defined doctrine. The crucial consideration is that no teacher can know just where the line is drawn between 'seditious' and nonseditious utterances and acts.
15
Other provisions of § 105 also have the same defect of vagueness. Subdivision 1(a) of § 105 bars employment of any person who 'by word of mouth or writing wilfully and deliberately advocates, advises or teaches the doctrine' of forceful overthrow of government. This provision is plainly susceptible of sweeping and improper application. It may well prohibit the employment of one who merely advocates the doctrine in the abstract without any attempt to indoctrinate others, or incite others to action in furtherance of unlawful aims.7 See Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066; Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356; Noto v. United States, 367 U.S. 290, 81 S.Ct. 1517, 6 L.Ed.2d 836; Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782. And in prohibiting 'advising' the 'doctrine' of unlawful overthrow does the statute prohibit mere 'advising' of the existence of the doctrine, or advising another to support the doctrine? Since 'advocacy' of the doctrine of forceful overthrow is separately prohibited, need the person 'teaching' or 'advising' this doctrine himself 'advocate' it? Does the teacher who informs his class about the precepts of Marxism or the Declaration of Independence violate this prohibition?
16
Similar uncertainty arises as to the application of subdivision 1(b) of § 105. That subsection requires the disqualification of an employee involved with the distribution of written material 'containing or advocating, advising or teaching the doctrine' of forceful overthrow, and who himself 'advocates, advises, teaches, or embraces the duty, necessity or propriety of adopting the doctrine contained therein.' Here again, mere advocacy of abstract doctrine is apparently included.8 And does the prohibition of distribution of matter 'containing' the doctrine bar histories of the evolution of Marxist doctrine or tracing the background of the French, American, or Russian revolutions? The additional requirement, that the person participating in distribution of the material be one who 'advocates, advises, teaches, or embraces the duty, necessity or propriety of adopting the doctrine' of forceful overthrow, does not alleviate the uncertainty in the scope of the section, but exacerbates it. Like the language of § 105, subd. 1(a), this language may reasonably be construed to cover mere expression of belief. For example, does the university librarian who recommends the reading of such materials thereby 'advocate * * * the * * * propriety of adopting the doctrine contained therein'?
17
We do not have the benefit of a judicial gloss by the New York courts enlightening us as to the scope of this complicated plan.9 In light of the intricate administrative machinery for its enforcement, this is not surprising. The very intricacy of the plan and the uncertainty as to the scope of its proscriptions make it a highly efficient in terrorem mechanism. It would be a bold teacher who would not stay as far as possible from utterances or acts which might jeopardize his living by enmeshing him in this intricate machinery. The uncertainty as to the utterances and acts proscribed increases that caution in 'those who believe the written law means what it says.' Baggett v. Bullitt, supra, 377 U.S., at 374, 84 S.Ct., at 1324. The result must be to stifle 'that free play of the spirit which all teachers ought especially to cultivate and practice * * *.'10 That probability is enhanced by the provisions requiring an annual review of every teacher to determine whether any utterance or act of his, inside the classroom or out, came within the sanctions of the laws. For a memorandum warns employees that under the statutes 'subversive' activities may take the form of '(t)he writing of articles, the distribution of pamphlets, the endorsement of speeches made or articles written or acts performed by others,' and reminds them 'that it is a primary duty of the school authorities in each school district to take positive action to eliminate from the school system any teacher in whose case there is evidence that he is guilty of subversive activity. School authorities are under obligation to proceed immediately and conclusively in every such case.'
18
There can be no doubt of the legitimacy of New York's interest in protecting its education system from subversion. But 'even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.' Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231. The principle is not inapplicable because the legislation is aimed at keeping subversives out of the teaching ranks. In De Jonge v. State of Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 260, 81 L.Ed. 278, the Court said:
19
'The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.' Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. 'The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.' Shelton v. Tucker, supra, 364 U.S., at 487, 81 S.Ct., at 251. The classroom is peculiarly the 'marketplace of ideas.' The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues, (rather) than through any kind of authoritative selection.' United States v. Associated Press, D.C., 52 F.Supp. 362, 372. In Sweezy v. State of New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1211, 1 L.Ed.2d 1311, we said:
20
'The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.'
21
We emphasize once again that '(p)recision of regulation must be the touchstone in an area so closely touching our most precious freedoms,' N.A.A.C.P. v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405; '(f)or standards of permissible statutory vagueness are strict in the area of free expression. * * * Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.' Id., at 432—433, 83 S.Ct., at 337—338. New York's complicated and intricate scheme plainly violates that standard. When one must guess what conduct or utterance may lose him his position, one necessarily will 'steer far wider of the unlawful zone * * *.' Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460. For '(t)he threat of sanctions may deter * * * almost as potently as the actual application of sanctions.' N.A.A.C.P. v. Button, supra, 371 U.S., at 433, 83 S.Ct., at 338. The danger of that chilling effect upon the exercise of vital First Amendment rights must be guarded against by sensitive tools which clearly inform teachers what is being proscribed. See Stromberg v. People of State of California, 283 U.S. 359, 369, 51 S.Ct. 532, 535, 75 L.Ed. 1117; Cramp v. Board of Public Instruction, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285; Baggett v. Bullitt, supra.
22
The regulatory maze created by New York is wholly lacking in 'terms susceptible of objective measurement.' Cramp v. Board of Public Instruction, supra, at 286, 82 S.Ct., at 280. It has the quality of 'extraordinary ambiguity' found to be fatal to the oaths considered in Cramp and Baggett v. Bullitt. '(M)en of common intelligence must necessarily guess at its meaning and differ as to its application * * *.' Baggett v. Bullitt, supra, 377 U.S., at 367, 84 S.Ct., at 1320. Vagueness of wording is aggravated by prolixity and profusion of statutes, regulations, and administrative machinery, and by manifold cross-references to interrelated enactments and rules.
23
We therefore hold that § 3021 of the Education Law and subdivisions 1(a), 1(b) and 3 of § 105 of the Civil Service Law as implemented by the machinery created pursuant to § 3022 of the Education Law are unconstitutional.
IV.
24
Appellants have also challenged the constitutionality of the discrete provisions of subdivision 1(c) of § 105 and subdivision 2 of the Feinberg Law, which make Communist Party membership, as such, prima facie evidence of disqualification. The provision was added to subdivision 1(c) of § 105 in 1958 after the Board of Regents, following notice and hearing, listed the Communist Party of the United States and the Communist Party of the State of New York as 'subversive' organizations. Subdivision 2 of the Feinberg Law was, however, before the Court in Adler and its constitutionality was sustained. But constitutional doctrine which has emerged since that decision has rejected its major premise. That premise was that public employment, including academic employment, may be conditioned upon the surrender of constitutional rights which could not be abridged by direct government action. Teachers, the Court said in Adler, 'may work for the school system upon the reasonable terms laid down by the proper authorities of New York. If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere.' 342 U.S., at 492, 72 S.Ct., at 385. The Court also stated that a teacher denied employment because of membership in a listed organization 'is not thereby denied the right of free speech and assembly. His freedom of choice between membership in the organization and employment in the school system might be limited, but not his freedom of speech or assembly, except in the remote sense that limitation is inherent in every choice.' Id., at 493, 72 S.Ct., at 385.
25
However, the Court of Appeals for the Second Circuit correctly said in an earlier stage of this case, '* * * the theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.' Keyishian v. Board of Regents, 345 F.2d 236, 239. Indeed, that theory was expressly rejected in a series of decisions following Adler. See Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216; Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692; Cramp v. Board of Public Instruction, supra; Baggett v. Bullitt, supra; Shelton v. Tucker, supra; Speiser v. Randall, supra; see also Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796; Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982. In Sherbert v. Verner, 374 U.S. 398, 404, 83 S.Ct. 1790, 1794, 10 L.Ed.2d 965, we said: 'It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege.'
26
We proceed then to the question of the validity of the provisions of subdivision 1 of § 105 and subdivision 2 of § 3022, barring employment to members of listed organizations. Here again constitutional doctrine has developed since Adler. Mere knowing membership without a specific intent to further the unlawful aims of an organization is not a constitutionally adequate basis for exclusion from such positions as those held by appellants.
27
In Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321, we said, '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.' Id., at 17, 86 S.Ct., at 1241. We there struck down a statutorily required oath binding the state employee not to become a member of the Communist Party with knowledge of its unlawful purpose, on threat of discharge and perjury prosecution if the oath were violated. We found that '(a)ny 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.' Elfbrandt v. Russell, supra, at 16, 86 S.Ct., at 1240. In Aptheker we held that Party membership, without knowledge of the Party's unlawful purposes and specific intent to further its unlawful aims, could not constitutionally warrant deprivation of the right to travel abroad. As we said in Schneiderman v. United States, 320 U.S. 118, 136, 63 S.Ct. 1333, 1342, 87 L.Ed. 1796, '(U)nder our traditions beliefs are personal and not a matter of mere association, and * * * men in adhering to a political party or other organization * * * do not subscribe unqualifiedly to all of its platforms or asserted principles.' '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.' Elfbrandt, supra, at 19, 86 S.Ct., at 1242. Thus mere Party membership, even with knowledge of the Party's unlawful goals, cannot suffice to justify criminal punishment, see 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; Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356;11 nor may it warrant a finding of moral unfitness justifying disbarment. Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796.
28
These limitations clearly apply to a provision, like § 105, subd. 1(c), which blankets all state employees, regardless of the 'sensitivity' of their positions. But even the Feinberg Law provision, applicable primarily to activities of teachers, who have captive audiences of young minds, are subject to these limitations in favor of freedom of expression and association; the stifling effect on the academic mind from curtailing freedom of association in such manner is manifest, and has been documented in recent studies.12 Elfbrandt and Aptheker state the governing standard: legislation which sanctions membership unaccompanied by specific intent to further the unlawful goals of the organization or which is not active membership violates constitutional limitations.
29
Measured against this standard, both Civil Service Law § 105, subd. 1(c), and Education Law § 3022, subd. 2 sweep overbroadly into association which may not be proscribed. The presumption of disqualification arising from proof of mere membership may be rebutted, but only by (a) a denial of membership, (b) a denial that the organization advocates the overthrow of government by force, or (c) a denial that the teacher has knowledge of such advocacy. Lederman v. Board of Education, 276 App.Div. 527, 96 N.Y.S.2d 466, aff'd 301 N.Y. 476, 95 N.E.2d 806.13 Thus proof of nonactive membership or a showing of the absence of intent to further unlawful aims will not rebut the presumption and defeat dismissal. This is emphasized in official administrative interpretations. For example, it is said in a letter addressed to prospective appointees by the President of the State University, 'You will note that * * *both the Law and regulations are very specifically directed toward the elimination and nonappointment of 'Communist' from or to our teaching ranks * * *.' The Feinberg Certificate was even more explicit: 'Anyone who is a member of the Communist Party or of any organization that advocates the violent overthrow of the Government of the United States or of the State of New York or any political subdivision thereof cannot be employed by the State University.' (Emphasis supplied.) This official administrative interpretation is supported by the legislative preamble to the Feinberg Law, § 1, in which the legislature concludes as a result of its findings that 'it is essential that the laws prohibiting persons who are members of subversive groups, such as the communist party and its affiliated organizations, from obtaining or retaining employment in the public schools, be rigorously enforced.' (Emphasis supplied.)
30
Thus § 105, subd. 1(c), and § 3022, subd. 2, suffer from impermissible 'overbreadth.' Elfbrandt v. Russell, supra, 384 U.S. at 19, 86 S.Ct. at 1242; Aptheker v. Secretary of State, supra; N.A.A.C.P. v. Button, supra; Saia v. People of State of New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574; Schneider v. State of New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; cf. Hague v. C.I.O., 307 U.S. 496, 515—516, 59 S.Ct. 954, 963—964, 83 L.Ed. 1423; see generally Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120, 14 L.Ed.2d 22. They seek to bar employment both for association which legitimately may be proscribed and for association which may not be proscribed consistently with First Amendment rights. Where statutes have an overbroad sweep, just as where they are vague, 'the hazard of loss or substantial impairment of those precious rights may be critical,' Dombrowski v. Pfister, supra, at 486, 85 S.Ct., at 1120, since those covered by the statute are bound to limit their behavior to that which is unquestionably safe. As we said in Shelton v. Tucker, supra, 364 U.S., at 488, 81 S.Ct., at 252, 'The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.'
31
We therefore hold that Civil Service Law § 105, subd. 1(c), and Education Law § 3022, subd. 2, are invalid insofar as they proscribe mere knowing membership without any showing of specific intent to further the unlawful aims of the Communist Party of the United States or of the State of New York.
32
The judgment of the District Court is reversed and the case is remanded for further proceedings consistent with this opinion.
33
Reversed and remanded.
APPENDIX TO OPINION OF THE COURT.
34
CIVIL SERVICE LAW.
35
s 105. Subversive activities; disqualification
36
1. Ineligibility of persons advocating overthrow of government by force or unlawful means. No person shall be appointed to any office or position in the service of the state or of any civil division thereof, nor shall any person employed in any such office or position be continued in such employment, nor shall any person be employed in the public service as superintendent, principal or teacher in a public school or academy or in a state college or any other state educational institution who:
37
(a) by word of mouth or writing wilfully and deliberately advocates, advises or teaches the doctrine that the government of the United States or of any state or of any political subdivision thereof should be overthrown or overturned by force, violence or any unlawful means; or
38
(b) prints, publishes, edits, issues or sells any book, paper, document or written or printed matter in any form containing or advocating, advising or teaching the doctrine that the government of the United States or of any state or of any political subdivision thereof should be overthrown by force, violence or any unlawful means, and who advocates, advises, teaches, or embraces the duty, necessity or propriety of adopting the doctrine contained therein; or (c) organizes or helps to organize or becomes a member of any society or group of persons which teaches or advocates that the government of the United States or of any state or of any political subdivision thereof shall be overthrown by force or violence, or by any unlawful means.
39
For the purposes of this section, membership in the communist party of the United States of America or the communist party of the state of New York shall constitute prima facie evidence of disqualification for appointment to or retention in any office or position in the service of the state or of any city or civil division thereof.
40
2. A person dismissed or declared ineligible pursuant to this section may within four months of such dismissal or declaration of ineligibility be entitled to petition for an order to show cause signed by a justice of the supreme court, why a hearing on such charges should not be had. Until the final judgment on said hearing is entered, the order to show cause shall stay the effect of any order of dismissal or ineligibility based on the provisions of this section; provided, however, that during such stay a person so dismissed shall be suspended without pay, and if the final determination shall be in his favor he shall be restored to his position with pay for the period of such suspension less the amount of compensation which he may have earned in any other employment or occupation and any unemployment insurance benefits he may have received during such period. The hearing shall consist of the taking of testimony in open court with opportunity for cross examination. The burden of sustaining the validity of the order of dismissal or ineligibility by a fair preponderance of the credible evidence shall be upon the person making such dismissal or order or ineligibility.
41
3. Removal for treasonable or seditious acts or utterances. A person in the civil service of the state or of any civil division thereof shall be removable therefrom for the utterance of any treasonable or seditious word or words or the doing of any treasonable or seditious act or acts while holding such position. For the purpose of this subdivision, a treasonable word or act shall mean 'treason', as defined in the penal law; a seditious word or act shall mean 'criminal anarchy' as defined in the penal law.
42
EDUCATION LAW.
43
s 3021. Removal of superintendents, teachers and employees for treasonable or seditious acts or utterances
44
A person employed as superintendent of schools, teacher or employee in the public schools, in any city or school district of the state, shall be removed from such position for the utterance of any treasonable or seditious word or words or the doing of any treasonable or seditious act or acts while holding such position.
45
s 3022. Elimination of subversive persons from the public school system
46
1. The board of regents shall adopt, promulgate, and enforce rules and regulations for the disqualification or removal of superintendents of schools, teachers or employees in the public schools in any city or school district of the state and the faculty members and all other personnel and employees of any college or other institution of higher education owned and operated by the state or any subdivision thereof who violate the provisions of section three thousand twenty-one of this article or who are ineligible for appointment to or retention in any office or position in such public schools or such institutions of higher education on any of the grounds set forth in section twelve-a of the civil service law and shall provide therein appropriate methods and procedure for the enforcement of such sections of this article and the civil service law.
47
2. The board of regents shall, after inquiry, and after such notice and hearing as may be appropriate, make a listing of organizations which it finds to be subversive in that they advocate, advise, teach or embrace the doctrine that the government of the United States or of any state or of any political subdivision thereof shall be overthrown or overturned by force, violence or any unlawful means, or that they advocate, advise, teach or embrace the duty, necessity or propriety of adopting any such doctrine, as set forth in section twelve-a of the civil service law. Such listings may be amended and revised from time to time. The board, in making such inquiry, may utilize any similar listings or designations promulgated by any federal agency or authority authorized by federal law, regulation or executive order, and for the purposes of such inquiry, the board may request and receive from such federal agencies or authorities any supporting material or evidence that may be made available to it. The board of regents shall provide in the rules and regulations required by subdivision one hereof that membership in any such organization included in such listing made by it shall constitute prima facie evidence of disqualification for appointment to or retention in any office or position in the public schools of the state.
48
3. The board of regents shall annually, on or before the fifteenth day of February, by separate report, render to the legislature, a full statement of measures taken by it for the enforcement of such provisions of law and to require compliance therewith. Such reports shall contain a description of surveys made by the board of regents, from time to time, as may be appropriate, to ascertain the extent to which such provisions of law have been enforced in the city and school districts of the state.
RULES OF THE BOARD OF REGENTS.
49
(Adopted July 15, 1949.)
50
ARTICLE XVIII.
51
SUBVERSIVE ACTIVITIES.
52
Section 244 Disqualification or removal of superintendents, teachers and other employes.
53
1. The school authorities of each school district shall take all necessary action to put into effect the following procedures for disqualification or removal of superintendents, teachers or other employes who violate the provisions of section 3021 of the Education Law or section 12-a* of the Civil Service Law.
54
a. Prior to the appointment of any superintendent, teacher or employe, the nominating official, in addition to making due inquiry as to the candidate's academic record, professional training, experience and personal qualities, shall inquire of prior employers, and such other persons as may be in a position to furnish pertinent information, as to whether the candidate is known to have violated the aforesaid statutory provisions, including the provisions with respect to membership in organizations listed by the Board of Regents as subversive in accordance with paragraph 2 hereof. No person who is found to have violated the said statutory provisions shall be eligible for employment.
55
b. The school authorities shall require one or more of the officials in their employ, whom they shall designate for such purpose, to submit to them in writing not later than October 31, 1949, and not later than September 30th of each school year thereafter, a report on each teacher or other employe. Such report shall either (1) state that there is no evidence indicating that such teacher or other employe has violated the statutory provisions herein referred to, including the provisions with respect to membership in organizations listed by the Regents as subversive in accordance with paragraph 2 hereof; or (2) where there is evidence indicating a violation of said statutory provisions, including membership in such a subversive organization, recommend that action be taken to dismiss such teacher or other employe, on the ground of a specified violation or violations of the law.
56
c. The school authorities shall themselves prepare such reports on the superintendent of schools and such other officials as may be directly responsible to them, including the officials designated by them in accordance with subdivision b of this paragraph.
57
d. The school authorities shall proceed as promptly as possible, and in any event within 90 days after the submission of the recommendations required in subdivision b of this paragraph, either to prefer formal charges against superintendents, teachers or other employes for whom the evidence justifies such action, or to reject the recommendations for such action.
58
e Following the determination required in subdivision d of this paragraph, the school authorities shall immediately institute proceedings for the dismissal of superintendents, teachers or other employes in those cases in which in their judgment the evidence indicates violation of the statutory provisions herein referred to. In proceedings against persons serving on probation or those having tenure, the appropriate statutory procedure for dismissal shall be followed. In proceedings against persons serving under contract and not under the provisions of a tenure law, the school authorities shall conduct such hearings on charges as they deem the exigencies warrant, before taking final action on dismissal. In all cases all rights to a fair trial, representation by counsel and appeal or court review as provided by statute or the Constitution shall be scrupulously observed.
59
2. Pursuant to chapter 360 of the Laws of 1949, the Board of Regents will issue a list, which may be amended and revised from time to time, of organizations which the Board finds to be subversive in that they advocate, advise, teach or embrace the doctrine that the Government of the United States, or of any state or of any political subdivision thereof, shall be overthrown or overturned by force, violence or any unlawful means, or that they advocate, advise, teach or embrace the duty, necessity or propriety of adopting any such doctrine, as set forth in section 12-a* of the Civil Service Law. Evidence of membership in any organization so listed on or after the tenth day subsequent to the date of official promulgation of such list shall constitute prima facie evidence of disqualification for appointment to or retention of any office or position in the school system. Evidence of membership in such an organization prior to said day shall be presumptive evidence that membership has continued, in the absence of a showing that such membership has been terminated in good faith.
60
3. On or before the first day of December of each year, the school authorities of each school district shall render to the Commissioner of Education a full report, officially adopted by the school authorities and signed by their presiding officer, of the measures taken by them for the enforcement of these regulations during the calendar year ending on the 31st day of October preceding. Such report shall include a statement as to (a) the total number of superintendents, teachers and other employes in the employ of the school district; (b) the number of superintendents, teachers and other employes as to whom the school authorities and/or the officials designated by them have reported that there is no evidence indicating that such employes have violated the statutory provisions herein referred to, including the provisions with respect to membership in organizations listed by the Regents as subversive; and (c) the number of superintendents, teachers and other employes in whose cases the school authorities and/or the officials designated by them have recommended that action be taken to dismiss the employes in question, on the grounds of specified violations of the law or evidence of membership in a subversive organization. Such report shall also include, for the group listed under (c) above, a statement of (d) the number of cases in which charges have been or are to be preferred and the status or final disposition of each of these cases; (e) the number of cases in which the school authorities have concluded that the evidence reported by the designated officials does not warrant the preferring of charges; and (f) the number of cases in which the school authorities have not determined, as of October 31st of the school year in question, on the action to be taken.
61
4. Immediately upon the finding by school authorities that any person is disqualified for appointment or retention in employment under these regulations, said school authorities shall report to the Commissioner of Education the name of such person and the evidence supporting his disqualification, including a transcript of the official records of hearings on charges, if any, which have been conducted.
62
PENAL LAW.
63
s 160. Criminal anarchy defined
64
Criminal anarchy is the doctrine that organized government should be overthrown by force or violence, or by assassination of the executive head or of any of the executive officials of government, or by any unlawful means. The advocacy of such doctrine either by word of mouth or writing is a felony. s 161. Advocacy of criminal anarchy
Any person who:
65
1. By word of mouth or writing advocates, advises or teaches the duty, necessity or propriety of overthrowing or overturning organized government by force or violence, or by assassination of the executive head or of any of the executive officials of government, or by any unlawful means; or,
66
2. Prints, publishes, edits, issues or knowingly circulates, sells, distributes or publicly displays any book, paper, document, or written or printed matter in any form, containing or advocating, advising or teaching the doctrine that organized government should be overthrown by force, violence or any unlawful means; or,
67
3. Openly, wilfully and deliberately justifies by word of mouth or writing the assassination or unlawful killing or assaulting of any executive or other officer of the United States or of any state or of any civilized nation having an organized government because of his official character, or any other crime, with intent to teach, spread or advocate the propriety of the doctrines of criminal anarchy; or,
68
4. Organizes or helps to organize or becomes a member of or voluntarily assembles with any society, group or assembly of persons formed to teach or advocate such doctrine.
69
Is guilty of a felony and punishable by imprisonment for not more than ten years, or by a fine of not more than five thousand dollars, or both.
70
RESOLUTIONS OF THE BOARD OF TRUSTEES OF THE STATE UNIVERSITY OF NEW YORK
71
Resolved that Resolution 65—100 adopted May 13, 1965, be and the same hereby is, amended to read as follows:
72
Resolved that Resolution No. 56—98 adopted on October 11, 1956, incorporated into the Policies of the Board of Trustees as Section 3 of Title B of Article XI thereof, and the Procedure on New Academic Appointments therein referred to, be, and the same hereby are, Rescinded, and
73
Further Resolved that Title B of Article XI of the Policies of the Board of Trustees be amended by adding a new Section 3 thereto to read as follows:
74
s 3. Procedure for appointments.
75
Before any initial appointment shall hereafter be made to any position certified to be in the professional service of the University pursuant to Section 35 of the Civil Service Law the officer authorized to make such appointment or to make the initial recommendation therefor shall send or give to the prospective appointee a statement prepared by the President concisely explaining the disqualification imposed by Section 105 of the Civil Service Law and by Section 3022 of the Education Law and the Rules of the Board of Regents thereunder, including the presumption of such disqualification by reason of membership in organizations listed by the Board of Regents. Such officer, in addition to due inquiry as to the candidate's record, professional training, experience and personal qualities, shall make or cause to be made such further inquiry as may be needed to satisfy him as to whether or not such candidate is disqualified under the provisions of such statute and rules. Should any question arise in the course of such inquiry such candidate may request or such officer may require a personal interview. Refusal of a candidate to answer any question relevant to such inquiry by such officers shall be sufficient ground to refuse to make or recommend appointment. An appointment or recommendation for appointment shall constitute a certification by the appointing or recommending officer that due inquiry has been made and that he finds no reason to believe that the candidate is disqualified for the appointment.
76
Further Resolved that this resolution shall become effective July 1, 1965, provided, however, that this resolution shall become effective immediately with respect to appointments made or recommended prior to July 1, 1965 to take effect on or after that date.
77
Resolved that any person presently employed or heretofore employed by the University who has failed to sign the certificate required by the Procedure on New Academic Appointments adopted on October 11, 1956, shall not be deemed disqualified or ineligible solely by reason of such failure, for appointment or reappointment in the professional service of the University in the manner provided in new Section 3 of Title B of Article XI of the Policies of the Board of Trustees as adopted by resolution this day; and
78
Further Resolved that any person presently employed by the University shall not be deemed ineligible or disqualified for continuance in his employment during the prescribed term thereof, nor be subject to charges of misconduct, solely by reason of such failure, provided he is found qualified for such continuance by the Chief Administrative officer of the institution at which he is employed in accordance with the procedures prescribed in said new Section 3 of Title B of Article XI of the Policies of the Board of Trustees.
79
Mr. Justice CLARK, with whom Mr. Justice HARLAN, Mr. Justice STEWART and Mr. Justice WHITE join, dissenting.
80
The blunderbuss fashion in which the majority couches 'its artillery of words,' together with the morass of cases it cites as authority and the obscurity of their application to the question at hand, makes it difficult to grasp the true thrust of its decision. At the outset, it is therefore necessary to focus on its basis.
81
This is a declaratory judgment action testing the application of the Feinberg Law to appellants. The certificate and statement once required by the Board of Trustees of the State University and upon which appellants base their attack were, before the case was tried, abandoned by the Board and are no longer required to be made. Despite this fact the majority proceeds to its decision striking down New York's Feinberg Law and other statutes as applied to appellants on the basis of the old certificate and statement. It does not explain how the statute can be applied to appellants under procedures which have been for almost two years a dead letter. The issues posed are, therefore, purely abstract and entirely speculative in character. The Court under such circumstances has in the past refused to pass upon constitutional questions. In addition, the appellants have neither exhausted their administrative remedies, nor pursued the remedy of judicial review of agency action as provided earlier by subdivision (d) of § 12—a of the Civil Service Law. Finally, one of the sections stricken, § 105, subd. 3, has been amended by a revision which under its terms will not become effective until September 1, 1967. (Laws 1965, c. 1030, § 240.15, Revised Penal Law of 1965.)
I.
82
The old certificate upon which the majority operates required all of the appellants, save Starbuck, to answer the query whether they were Communists, and if they were, whether they had communicated that fact to the President of the State University. Starbuck was required to answer whether he had ever advised, taught, or been a member of a group which taught or advocated the doctrine that the Government of the United States, or any of its political subdivisions, should be overthrown by force, violence, or any unlawful means. All refused to comply. It is in this nonexistent frame of reference that the majority proceeds to act.
83
It is clear that the Feinberg Law, in which this Court found 'no constitutional infirmity' in 1952, has been given its death blow today. Just as the majority here finds that there 'can be no doubt of the legitimacy of New York's interest in protecting its education system from subversion' there can also be no doubt that 'the be-all and end-all' of New York's effort is here. And, regardless of its correctness, neither New York nor the several States that have followed the teaching of Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517, for some 15 years, can ever put the pieces together again. No court has ever reached out so far to destroy so much with so little.
84
The section (§ 3021 of the Education Law) which authorizes the removal of superintendents, teachers, or employees in the public schools in any city or school district of New York for the utterance of any treasonable or seditious word or words is also struck down, even though it does not apply to appellants, as we shall discuss below.
85
Also declared unconstitutional are the subdivisions (1(a), 1(b) and 1(c) of § 105 of the Civil Service Law) which prevent the appointment and authorize the discharge of any superintendent, principal, or teacher in any part of New York's public education establishment who wilfully advocates, advises, or teaches the doctrine that the Government of the United States, or of any State or any political subdivision thereof should be overthrown by force, violence, or any other unlawful means (1(a)); or who prints, publishes, edits, issues, or sells any book, paper, document, or written or printed matter, in any form, containing such doctrine and 'who advocates, advises, teaches, or embraces the duty, necessity or propriety of adopting the doctrine contained therein' (1(b)); or who organizes or helps to organize or becomes a member of any society or group which teaches or advocates such doctrine (1(c)). This latter provision was amended in 1958, while still part of § 12-a of the Civil Service Law, to make membership in the Communist Party prima facie proof of disqualification. The language 'advocate, advise, teach,' etc., obviously springs from federal statutes, particularly the Smith Act, § 2(a)(1), (2) and (3), 54 Stat. 671, which was approved by this Court in Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951). State statutes of similar character and language have been approved by this Court. See Garner v. Board of Public Works of Los Angeles, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317 (1951); Beilan v. Board of Education, School District of Philadelphia, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414 (1958).
86
Lastly stricken is the subdivision (3 of § 105) which authorizes the discharge of any person in the civil servic of the State or any civil division thereof who utters any treasonable or seditious word or commits any treasonable or seditious act, although this subdivision is not and never has been a part of the Feinberg Law and New York specifically disclaims its applicability to the appellants. In addition, how can the Court pass upon this law as applied when the State has never attempted to and now renounces its application to appellants?
II.
87
This Court has again and again, since at least 1951, approved procedures either identical or at the least similar to the ones the Court condemns today. In Garner v. Board of Public Works of Los Angeles, supra, we held that a public employer was not precluded, simply because it was an agency of the State, 'from inquiring of its employees as to matters that may prove relevant to their fitness and suitability for the public service.' 341 U.S., at 720, 71 S.Ct., at 912. The oath there used practically the same language as the Starbuck statement here and the affidavit reflects the sam type of inquiry as was made in the old certificate condemned here. Then in 1952, in Adler v. Board of Education, supra, this Court passed upon the identical statute condemned here. It, too, was a declaratory judgment action—as in this case. However, there the issues were not so abstractly framed. Our late Brother Minton wrote for the Court:
88
'A teacher works in a sensitive area in a schoolroom. There he shapes the attitude of young minds towards the society in which they live. In this, the state has a vital concern. It must preserve the integrity of the schools. That the school authorities have the right and the duty to screen the officials, teachers, and employees as to their fitness to maintain the integrity of the schools as a part of ordered society cannot be doubted.' At 493 of 342 U.S., at 385 of 72 S.Ct.
89
And again in 1958 the problem was before us in Beilan v. Board of Education, School District of Philadelphia, supra. There our late Brother Burton wrote for the Court:
90
'By engaging in teaching in the public schools, petitioner did not give up his right to freedom of belief, speech or association. He did, however, undertake obligations of frankness, candor and cooperation in answering inquiries made of him by his employing Board examining into his fitness to serve it as a public school teacher.' 357 U.S., at 405, 78 S.Ct. at 1321.
91
And on the same day in Lerner v. Casey, 357 U.S. 468, 78 S.Ct. 1311, 2 L.Ed.2d 1423 our Brother Harlan again upheld the severance of a public employee for his refusal to answer questions concerning his loyalty. And also on the same day my Brother Brennan himself cited Garner with approval in Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958).
92
Since that time the Adler line of cases has been cited again and again with approval: Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960), in which both Adler and Beilan were quoted with approval, and Garner and Lerner were cited in a like manner; likewise in Cramp v. Board of Public Instruction, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961), Adler was quoted twice with approval; and, in a related field where the employee was discharged for refusal to answer questions as to his loyalty after being ordered to do so, Nelson v. Los Angeles County, 362 U.S. 1, 80 S.Ct. 527, 4 L.Ed.2d 494 (1960), the Court cited with approval all of the cases which today it says have been rejected, i.e., Garner, Adler, Beilan and Lerner. Later Konigsberg v. State Bar, 366 U.S. 36 (1961), likewise cited with approval both Beilan and Garner. And in our decision in In re Anastaplo, 366 U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135 (1961), Garner, Beilan and Lerner were all referred to. Finally, only three Terms ago my Brother White relied upon Cramp, which in turn cited Adler with approval twice. See Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964).
93
In view of this long list of decisions covering over 15 years of this Court's history, in which no opinion of this Court even questioned the validity of the Adler line of cases, it is strange to me that the Court now finds that the 'constitutional doctrine which has emerged since * * * has rejected (Adler's) major premise.' With due respect, as I read them, our cases have done no such thing.
III.
94
The majority also finds that Adler did not pass upon § 3021 of the Education Law, nor subdivision 3 of § 105 of the Civil Service Law nor upon the vagueness questions of subdivisions 1(a), 1(b) and 1(c) of § 105. I will now discuss them.
95
1. Section 3021 is not applicable to these appellants. As Attorney General Lefkowitz of New York says on behalf of the State, the Board of Regents and the Civil Service Commission, this section by its own terms applies only to superintendents, teachers and employees in the 'public schools, in any city or school district of the state * * *.' It does not apply to teachers in the State University at all.*
96
2. Likewise subdivision 3 of § 105 is also inapplicable. It was derived from § 23—a of the Civil Service Law. The latter provision was on the books at the time of the Feinberg Law as well as when Adler was decided. The Feinberg Law referred only to § 12 a of the Civil Service Law, not § 23—a. Section 12—a was later recodified as subdivisions 1(a), (b) and (c) of § 105 of the Civil Service Law. Section 23—a (now § 105, subd. 3) deals only with the civil divisions of the civil service of the State. As the Attorney General tells us, the law before us has to do with the qualifications of college level personnel not covered by civil service. The Attorney General also advises that no superintendent, teacher, or employee of the educational system has ever been charged with violating § 105, subd. 3. The Court seems to me to be building straw men.
97
3. The majority also says that no challenge or vagueness points were passed upon in Adler. A careful examination of the Briefs in that case casts considerable doubt on this conclusion. In the appellants' brief, point 3, in Adler, the question is stated in this language: 'The statutes and the regulations issued thereunder violate the due process clause of the Fourteenth Amendment because of their vagueness.' Certainly the word 'subversive' is attacked as vague and the Court finds that it 'has a very definite meaning, namely, an organization that teaches and advocates the overthrow of government by force or violence.' 342 U.S., at 496, 72 S.Ct., at 387. Significantly this is the language of subdivisions 1(a) and (b) which the majority now finds vague, as covering one 'who merely advocates the doctrine in the abstract * * *' citing such criminal cases as Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066 (1937), which was on our books long before the Adler line of cases. Also significant is the fact that the Adler opinion's last sentence is 'We find no constitutional infirmity in § 12—a (now subdivisions 1(a), 1(b) and 1(c) of § 105) of the Civil Service Law of New York or in the Feinberg Law which implemented it * * *.' At 496 of 342 U.S., at 387 of 72 S.Ct.
IV.
98
But even if Adler did not decide these questions I would be obliged to answer them in the same way. The only portion of the Feinberg Law which the majority says was not covered there and is applicable to appellants is § 105, subd. 1(a), 1(b) and 1(c). These have to do with teachers who advocate, advise, or teach the doctrine of overthrow of our Government by force and violence, either orally or in writing. This was the identical conduct that was condemned in Dennis v. United States, supra. There the Court found the exact verbiage not to be unconstitutionally vague, and that finding was of course not affected by the decision of this Court in Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356. The majority makes much over the horribles that might arise from subdivision 1(b) of § 105 which condemns the printing, publishing, selling, etc., of matter containing such doctrine. But the majority fails to state that this action is condemned only when and if the teacher also personally advocates, advises, teaches, etc., the necessity or propriety of adopting such doctrine. This places this subdivision on the same footing as 1(a). And the same is true of subdivision 1(c) where a teacher organizes, helps to organize or becomes a member of an organization which teaches or advocates such doctrine, for scienter would also be a necessary ingredient under our opinion in Garner, supra. Moreover, membership is only prima facie evidence of disqualification and could be rebutted, leaving the burden of proof on the State. Furthermore, all of these procedures are protected by an adversary hearing with full judicial review.
99
In the light of these considerations the strained and unbelievable suppositions that the majority poses could hardly occur. As was said in Dennis, supra, 'we are not convinced that because there may be borderline cases' the State should be prohibited the protections it seeks. At 516 of 341 U.S., at 871 of 71 S.Ct. Where there is doubt as to one's intent or the nature of his activities we cannot assume that the administrative boards will not give him offended full protection. Furthermore, the courts always sit to make certain that this is done.
100
The majority says that the Feinberg Law is bad because it has an 'overbroad sweep.' I regret to say—and I do so with deference that the majority has by its broadside swept away one of our most precious rights, namely, the right of self-preservation. Our public educational system is the genius of our democracy. The minds of our youth are developed there and the character of that development will determine the future of our land. Indeed, our very existence depends upon it. The issue here is a very narrow one. It is not freedom of speech, freedom of thought, freedom of press, freedom of assembly, or of association, even in the Communist Party. It is simply this: May the State provide that one who, after a hearing with full judicial review, is found to have wilfully and deliberately advocated, advised, or taught that our Government should be overthrown by force or violence or other unlawful means; or to have wilfully and deliberately printed, published, etc., any book or paper that so advocated and to have personally advocated such doctrine himself; or to have wilfully and deliberately become a member o an organization that advocates such doctrine, is prima facie disqualified from teaching in its university? My answer, in keeping with all of our cases up until today, is 'Yes'!
101
I dissent.
1
The text of the pertinent statutes and administrative regulations in effect at the time of trial appears in the Appendix to the opinion.
2
The District Court initially refused to convene a three-judge court, 233 F.Supp. 752, and was reversed by the Court of Appeals for the Second Circuit. 345 F.2d 236.
3
For the history of New York loyalty-security legislation, including the Feinberg Law, see Chamberlain, Loyalty and Legislative Action, and that author's article in Gellhorn, The States and Subversion 231.
4
The sole 'vagueness' contention in Adler concerned the word 'subversive,' appearing in the preamble to and caption of § 3022. 342 U.S., at 496, 72 S.Ct., at 387.
5
There is no merit in the suggestion advanced by the Attorney General of New York for the first time in his brief in this Court that § 3021 of the Education Law and § 105, subd. 3 of the Civil Service Law are not 'pertinent to our inquiry.' Section 3022 of the Education Law incorporates by reference the provisions of both, thereby rendering them applicable to faculty members of all colleges and institutions of higher education. One of the reasons why the Court of Appeals ordered the convening of a three-judge court was that a substantial federal question was presented by the fact that 'Adler * * * refused to pass upon the constitutionality of section 3021 * * * (and that) several statutory amendments, such as Section 105(3) of the Civil Service Law, are all subsequent to Adler.' 345 F.2d 236, 238. The three-judge court also properly found these provisions applicable to appellants in holding them constitutional. It is significant that appellees consistently defended the constitutionality of these sections in the courts below. Moreover, the three-judge court rendered its decision upon the basis of a 'Stipulation of Fact,' paragraph 20 of which recites:
'Section 3022 incorporates in full by reference and implements Section 105 of the Civil Service Law and Section 3021 of the New York State Education Law as follows: Subdivision (1) of Section 3022, as amended * * * directs the Board of Regents to adopt and enforce rules and regulations for the elimination of persons barred from employment in the public school system or any college or institution of higher education owned by the State of New York or any political subdivision thereof, by reason of violation of any of the provisions of Section 105 of the Civil Service Law or Section 3021 of the New York State Education Law.'
6
Penal Law §§ 160—161 are to be replaced effective September 1, 1967, by a single provision entitled 'criminal advocacy.'
7
The New York State Legislative Committee on Public Employee Security Procedures, in describing this provision, noted:
'In disqualifying for employment those who advocate or teach the 'doctrine' of the violent overthrow of government, (§ 105) is to be distinguished from the language of the Smith Act (18 U.S.C. §§ 371, 2385), which has been construed by the Supreme Court to make it criminal to incite to 'action' for the forcible overthrow of government, but not to teach the 'abstract doctrine' of such forcible overthrow. Yates v. United States, 354 U.S. 298 (77 S.Ct. 1064, 1 L.Ed.2d 1356) (1957).' 1958 N.Y. State Legis. Annual 70, n. 1.
8
Compare the Smith Act, 18 U.S.C. § 2385, which punishes one who 'prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of' unlawful overthrow, provided he is shown to have an 'intent to cause the overthrow or destruction of any such government.'
9
This is not a case where abstention pending state court interpretation would be appropriate, Baggett v. Bullitt, supra, at 375—379, 84 S.Ct., at 1324—1327; Dombrowski v. Pfister, 380 U.S. 479, 489—490, 85 S.Ct. 1116, 1122—1123, 14 L.Ed.2d 22.
10
Wieman v. Updegraff, 344 U.S. 183, 195, 73 S.Ct. 215, 221, 97 L.Ed.2d 216 (Frankfurter, J., concurring).
11
Whether or not loss of public employment constitutes 'punishment,' cf. United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252, there can be no doubt that the repressive impact of the threat of discharge will be no less direct or substantial.
12
See Lazarsfeld & Thielens, The Academic Mind 92—112, 192 217; Biddle, The Fear of Freedom 155 et seq.; Jahoda & Cook, Security Measures and Freedom of Thought: An Exploratory Study of the Impact of Loyalty and Security Programs, 61 Yale L.J. 295 (1952). See generally, MacIver, Academic Freedom in Our Time; Hullfish, Educational Freedom in an Age of Anxiety; Konvitz, Expanding Liberties 86—108; Morris, Academic Freedom and Loyalty Oaths, 28 Law & Contemp.Prob. 487 (1963).
13
In light of our disposition, we need not consider appellants' contention that the burden placed on the employee of coming forward with substantial rebutting evidence upon proof of membership in a listed organization is constitutionally impermissible. Compare Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460.
*
Now section 105.
*
Now section 105.
*
The Court points to a stipulation of counsel that § 3022 incorporates § 3021 into the Feinberg Law. However, Attorney General Lefkowitz did not sign the stipulation itself, but in an addendum thereto, agreed only that it constituted the record of fact—not of law. His brief contends that § 3021 is not incorporated into the law. The legislature, of course, is the only body that could incorporate § 3021 into the Feinberg Law. It has not done so.
| 23
|
386 U.S. 16
87 S.Ct. 848
17 L.Ed.2d 697
William Kirvin BARLOWv.TEXAS.
No. 109.
Supreme Court of the United States
February 13, 1967
Alto B. Cervin, for appellant.
Waggoner Carr, Atty. Gen. of Texas, Hawthorne Phillips, First Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., and Howard M. Fender and Charles B. Swanner, Asst. Attys. Gen., for appellee.
PER CURIAM.
1
The motion to dismiss is granted and the appeal is dismissed.
2
THE CHIEF JUSTICE, Mr., Justice DOUGLAS, and Mr. Justice FORTAS would reverse the judgment of the court below for the reasons stated in the opinion of The Chief Justice in Spencer v. State of Texas, 385 U.S. 554, 569, 87 S.Ct. 648, 656.
| 01
|
386 U.S. 14
87 S.Ct. 847
17 L.Ed.2d 695
Alfred T. RUNDLE, Correctional Superintendentv.James Morris JOHNSON.
No. 14.
Supreme Court of the United States
February 13, 1967
Frank P. Lawley, Jr., for petitioner.
Leonard J. D. Myers, for respondent.
On Petition for Writ of Certiorari to the United States Court of Appeals for the Third Circuit.
PER CURIAM.
1
The motion of respondent for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment of the United States Court of Appeals for the Third Circuit is reversed, Spencer v. State of Texas, 385 U.S. 554, 87 S.Ct. 648, and the case is remanded to that court for consideration of the unresolved issues.
2
Mr. Justice DOUGLAS dissents from the reversal of the Court of Appeals in United States v. Rundle, 3 Cir., 349 F.2d 416, which affirmed United States v. Rundle, D.C., 243 F.Supp. 695, 700, where the District Court granted the petition for habeas corpus since the introduction of the accused's 'prior criminal record for obstructing a railroad was so fundamentally unfair as to deny him due process of law.'
| 01
|
386 U.S. 15
87 S.Ct. 847
17 L.Ed.2d 696
Landon ZUCKERMAN et al.v.Samuel GREASON.
No. 71.
Supreme Court of the United States
February 13, 1967
Rehearing Denied March 13, 1967.
See 386 U.S. 969, 87 S.Ct. 1016.
Leonard Feldman, for petitioners.
Samuel Greason, pro se.
On Petition for Writ of Certiorari to the Appellate Division of the Supreme Court of New York, Second Judicial Department.
PER CURIAM.
1
The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the Appellate Division of the Supreme Court of New York, Second Judicial Department, for reconsideration in light of Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625.
2
Mr. Justice CLARK, Mr. Justice HARLAN, and Mr. Justice STEWART would affirm the judgment below for the reasons set forth in Mr. Justice HARLAN'S dissenting opinion in Spevack v. Klein, 385 U.S., at 520, 87 S.Ct., at 631.
3
Mr. Justice WHITE, dissents for the reasons stated in his dissenting opinion in Garrity v. State of New Jersey, and Spevack v. Klein, 385 U.S., at 530, 87 S.Ct., at 636.
| 01
|
386 U.S. 17
87 S.Ct. 848
17 L.Ed.2d 698
Louis KAYEv.CO-ORDINATING COMMITTEE ON DISCIPLINE OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK.
No. 300.
Supreme Court of the United States
February 13, 1967
Morton Liftin, for petitioner.
Angelo T. Cometa, for respondent.
On Petition for Writ of Certiorari to the Appellate Division of the Supreme Court of New York, First Judicial Department.
PER CURIAM.
1
The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the Appellate Division of the Supreme Court of New York, First Judicial Department, for reconsideration in light of Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625.
2
Mr. Justice CLARK, Mr. Justice HARLAN, and Mr. Justice STEWART would affirm the judgment below for the reasons stated in the dissenting opinions of Mr. Justice Harlan in Spevack v. Klein, 385 U.S., at 520, 87 S.Ct., at 631, and Garrity v. State of New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 636.
3
Mr. Justice WHITE dissents for the reasons stated in his dissenting opinion in Garrity v. State of New Jersey, and Spevack v. Klein, 385 U.S., at 530, 87 S.Ct., at 636.
| 01
|
386 U.S. 1
87 S.Ct. 785
17 L.Ed.2d 690
Lloyd Eldon MILLER, Jr., Petitioner,v.Frank J. PATE, Warden.
No. 250.
Argued Jan. 11 and 12, 1967.
Decided Feb. 13, 1967.
Willard J. Lassers, Chicago, Ill., for petitioner.
Richard A. michael, Chicago, Ill., for respondent.
Maurice Rosenfield, Chicago, Ill., for Radio Station WAIT and others, as amici curiae.
Mr. Justice STEWART delivered the opinion of the Court.
1
On November 26, 1955, in Canton, Illinois, an eight-year-old girl died as the result of a brutal sexual attack. The petitioner was charged with her murder.
2
Prior to his trial in an Illinois court, his counsel filed a motion for an order permitting a scientific inspection of the physical evidence the prosecution intended to introduce.1 The motion was resisted by the prosecution and denied by the court. The jury trial ended in a verdict of guilty and a sentence of death. On appeal the judgment was affirmed by the Supreme Court of Illinois.2 On the basis of leads developed at a subsequent unsuccessful state clemency hearing, the petitioner applied to a federal district court for a writ of habeas corpus.3 After a hearing, the court granted the writ and ordered the petitioner's release or prompt retrial.4 The Court of Appeals reversed,5 and we granted certiorari to consider whether the trial that led to the petitioner's conviction was constitutionally valid.6 We have concluded that it was not.7
3
There were no eyewitnesses to the brutal crime which the petitioner was charged with perpetrating. A vital component of the case against him was a pair of men's underwear shorts covered with large, dark, reddish-brown stains—People's Exhibit 3 in the trial record. These shorts had been found by a Canton policeman in a place known as the Van Buren Flats three days after the murder. The Van Buren Flats were about a mile from the scene of the crime. It was the prosecution's theory that the petitioner had been wearing hese shorts when he committed the murder, and that he had afterwards removed and discarded them at the Van Buren Flats.
4
During the presentation of the prosecution's case, People's Exhibit 3 was variously described by witnesses in such terms as the 'bloody shorts' and 'a pair of jockey shorts stained with blood.' Early in the trial the victim's mother testified that her daughter 'had type 'A' positive blood.' Evidence was later introduced to show that the petitioner's blood 'was of group 'O'.'
5
Against this background the jury heard the testimony of a chemist for the State Bureau of Crime Identification. The prosecution established his qualifications as an expert, whose 'duties include blood identification, grouping and typing both dry and fresh stains,' and who had 'made approximately one thousand blood typing analyses while at the State Bureau.' His crucial testimony was as follows:
6
'I examined and tested 'People's Exhibit 3' to determine the nature of the staining material upon it. The result of the first test was that this material upon the shorts is blood. I made a second examination which disclosed that the blood is of human origin. I made a further examination which disclosed that the blood is of group 'A'.'
7
The petitioner, testifying in his own behalf, denied that he had ever owned or worn the shorts in evidence as People's Exhibit 3. He himself referred to the shorts as having 'dried blood on them.'
8
In argument to the jury the prosecutor made the most of People's Exhibit 3:
9
'Those shorts were found in the Van Buren Flats, with blood. What type blood? Not 'O' blood as the defendant has, but 'A' type 'A."
10
And later in his argument he said to the jury:
11
'And, if you will recall, it has never been contradicted the blood type of Janice May was blood type 'A' positive. Blood type 'A'. Blood type 'A' on these shorts. It wasn't 'O' type as the defendant has. It is 'A' type, what the little girl had.'
12
Such was the state of the evidence with respect to People's Exhibit 3 as the case went to the jury. And such was the state of the record as the judgment of conviction was reviewed by the Supreme Court of Illinois. The 'blood stained shorts' clearly played a vital part in the case for the prosecution. They were an important link in the chain of circumstantial evidence against the petitioner,8 and, in the context of the revolting crime with which he was charged, their gruesomely emotional impact upon the jury was incalculable.9
13
So matters stood with respect to People's Exhibit 3, until the present habeas corpus proceeding in the Federal District Court.10 In this proceeding the State was ordered to produce the stained shorts, and they were admitted in evidence. It was established that their appearance was the same as when they had been introduced at the trial as People's Exhibit 3. The petitioner was permitted to have the shorts examined by a chemical microanalyst. What the microanalyst found cast an extraordinary new light on People's Exhibit 3. The reddish-brown stains on the shorts were not blood, but paint.
14
The witness said that he had tested threads from each of the 10 reddish-brown stained areas on the shorts, and that he had found that all of them were encrusted with mineral pigments '* * * which one commonly uses in the preparation of paints.' He found 'no traces of human blood.'11 The State did not dispute this testimony, its counsel contenting himself with prevailing upon the witness to concede on cross-examination that he could not swear that there had never been any blood on the shorts.12
15
It was further established that counsel for the prosecution had known at the time of the trial that the shorts were stained with paint. The prosecutor even admitted that the Canton police had prepared a memorandum attempting to explain 'how this exhibit contains all the paint on it.'
16
In argument at the close of the habeas corpus hearing counsel for the State contended that '(e)verybody' at the trial had known that the shorts were stained with paint.13 That contention is totally belied by the record. The microanalyst correctly described the appearance of the shorts when he said, 'I assumed I was dealing * * * with a pair of shorts which wa heavily stained with blood. * * * (I)t would appear to a layman * * * that what I see before me is a garment heavily stained with blood.'14 The record of the petitioner's trial reflects the prosecution's consistent and repeated misrepresentation that People's Exhibit 3 was, indeed, 'a garment heavily stained with blood.' The prosecution's whole theory with respect to the exhibit depended upon that misrepresentation. For the theory was that the victim's assailant had discarded the shorts because they were stained with blood. A pair of paint-stained shorts, found in an abandoned building a mile away from the scene of the crime, was virtually valueless as evidence against the petitioner.15 The prosecution deliberately misrepresented the truth.
17
More than 30 years ago this Court held that the Fourteenth Amendment cannot tolerate a state criminal conviction obtained by the knowing use of false evidence. Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791. There has been no deviation from that established principle. Napue v. People of State of Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217; Pyle v. State of Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214; cf. Alcorta v. State of Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9. There can be no retreat from that principle here.
18
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.
19
Reversed and remanded.
1
'Comes now the defendant, Lloyd Eldon Miller Junior, by William H. Malmgren, his attorney, and hereby moves the Court to enter an order permitting defendant to make, or cause to be made, upon such terms and conditions as to the court seems necessary to adequately insure the interests of the parties, a scientifice (sic) examination of the physical evidence to be introduced by the People in this cause and, to that end, enter an order requiring the People, by their attorney, to produce and make available all of said evidence for such an examination.
'For cause, movant says that such an examination is necessary to adequately prepare the defense herein.'
2
People v. Miller, 13 Ill.2d 84, 148 N.E.2d 455.
3
An earlier federal habeas corpus application had been unsuccessful. Miller v. Pate, 7 Cir., 300 F.2d 414.
4
226 F.Supp. 541.
5
342 F.2d 646.
6
384 U.S. 998, 86 S.Ct. 1935, 16 L.Ed.2d 1013.
7
The petitioner has relied upon several different grounds for reversal of the judgment of the Court of Appeals. In deciding the case upon only one of those grounds, we intimate no view as to the merits of the others.
8
In affirming the petitioner's conviction, the Supreme Court of Illinois stated that 'it was determined' that the shorts 'were stained with human blood from group A,' and referred to the petitioner's 'bloody shorts.' 13 Ill.2d, at 89 and 106, 148 N.E.2d, at 458 and 467.
9
People's Exhibit 3 was forwarded here as part of the record, and we have accordingly had an opportunity to see it with our own eyes.
10
At the state clemency hearing, some additional evidence was adduced to show that the shorts had not belonged to the petitioner.
11
There were two other discolored areas on the shorts, one black and the other 'a kind of yellowish color.' A thread from the first of these areas contained material 'similar to a particle of carbon.' '(N)o particulates showed up' on the thread taken from the other.
12
The witness pointed out, however, that 'blood substances are detectable over prolonged periods. That is, there are records of researches in which substances extracted from Egyptian mummies have been identified as blood.'
13
'Now, then, concerning the paint on the shorts, the petitioner yesterday introduced scientific evidence to prove that there was paint on the shorts, a fact that they knew without scientific evidence. Everybody knew, in connection with the case, whoever looked at the shorts, and I think that the Court can look at them now and know there is paint on them. This is not anything that was not disclosed to anybody. It is very obvious by merely looking at them * * *.'
14
See n. 9, supra.
15
The petitioner was not a painter but a taxi driver.
| 01
|
386 U.S. 66
87 S.Ct. 793
17 L.Ed.2d 737
James V. GILES et al., Petitioners,v.STATE OF MARYLAND.
No. 27.
Argued Oct. 12, 1966.
Decided Feb. 20, 1967.
Joseph Forer, Washington, D.C., for petitioners.
Donald Needle and Robert C. Murphy, Baltimore, Md., for respondent.
Mr. Justice BRENNAN announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE and Mr. Justice DOUGLAS join.
1
In December 1961, petitioners, who are brothers, were convicted of rape of a 16-year-old girl after trial by jury in the Circuit Court for Montgomery County, Maryland. In May 1964, petitioners brought this proceeding under Maryland's Post-Conviction Procedure Act, Md.Ann.Code Art. 27, § 645A et seq. (1966 Supp.).1 Their petition alleged that the prosecution denied them due process of law in violation of the Fourteenth Amendment by suppressing evidence favorable to them, and by the knowing use of prejured testimony against them. An evidentiary hearing was had before Montgomery Circuit Judge Moorman who, in an unreported opinion, rule that the proofs did not sustain the allegation of bad faith or knowing use of perjured testimony by the prosecution, but did establish the suppression of evidence which, although not in bad faith, constituted a denial of due process. He therefore ordered a new trial. The Court of Appeals of Maryland, sitting en banc, reversed, two judges dissenting. State v. Giles, 239 Md. 458, 212 A.2d 101. We granted certiorari. 383 U.S. 941, 86 S.Ct. 1194, 16 L.Ed.2d 205. We would vacate the judgment of the Maryland Court of Appeals and remand to that court for further proceedings.
2
The rape allegedly occurred about midnight, July 20, 1961, near Rocky Gorge, a swimming and fishing spot on the Patuxent River, in a secluded, wooded area of Montgomery County. The petitioners swam and fished there from early evening with Joseph Johnson2 and John Bowie. The prosecutrix came there by automobile shortly before midnight with her date, Stewart Foster, and two other young men. Their car ran out of gasoline near Bowie's parked car. The girl and Foster remained in the car while the other young men went for gasoline.
3
The girl and Foster were the State's principal witnesses. They testified that they had been sitting in the back seat of the car for some 15 minutes after the two young men left when a noise near Bowie's car attracted their attention. They saw petitioners and their companions loading something into Bowie's car. Bowie drove away and petitioners and Johnson approached the stranded car. Foster rolled up the windows and locked the doors. The girl and Foster testified that the three demanded his money and his girl and smashed the car windows with rocks to open the car doors. Foster unlocked the door on his side and told the girl to get out her side and run while he held off the three. Foster was knocked unconscious when he left the car. The girl ran into the woods followed by John Giles who caught up with her when she tripped and fell. Petitioner James Giles and Johnson joined them a few minutes later. She testified that, when one of the trio attempted to remove her clothes, she disrobed herself below the waist and submitted to all three youths without resistance because of fear.
4
Both petitioners testified in their own defense. Their version of the events was that the three young men approached the car and asked Foster for a cigarette, that Foster responded with epithets and reached down as if to pick up a gun or other weapon, and that they broke the windows to prevent his getting it. They said that they did not know it was a girl who fled into the woods. Petitioner John Giles testified that when he caught up with her, she offered to submit to him if he would help her escape from the others but that he declined. Petitioner James Giles testified that when he and Johnson joined the couple, the girl told the three that she had had relations with 16 or 17 boys that week and two or three more wouldn't make any difference, that she disrobed herself and invited all three of them to have relations with her, and that he and Johnson, but not petitioner John Giles, had relations with her. Both petitioners testified that the girl said that if they were caught in the woods she would have to say she had been raped because 'she was on a year's probation' and 'was in trouble.'
5
The credibility of the witnesses was thus important to the outcome of the case. The Court of Appeals recognized this in affirming the convictions on direct review: 'There was some evidence tending to indicate consent on the part of the prosecuting witness, which, if believed by the trier of facts, would have been a complete defense to the charge of rape.' Giles v. State, 229 Md., at 381, 183 A.2d, at 364.3 Credibility was also critical on the issue whether, in any event, petitioner John Biles had relations with her, as she testified, or had not, as the petitioners testified.
6
The evidence allegedly suppressed consisted first, of the fact that in a proceeding pending on June 20 in the Juvenile Court for Prince George's County, a caseworker had recommended probation for the girl because she was beyond parental control. Also allegedly suppressed were the facts concerning an occurrence in Prince George's County at a party on the night of August 26, 1961, five weeks after the alleged rape, and over three months before the trial. The girl had sexual relations with two men at the party, and later that night took an overdose of pills and was hospitalized in a psychiatric ward of Prince George's General Hospital for nine days as an attempted suicide. She told a friend who visited her at the hospital that the two men had raped her. The friend told her parents who reported this to Montgomery County Police Lieutenant Whalen, head of the investigation for the State's Attorney into the charge against petitioners. Lieutenant Whalen advised the mother that he had no jurisdiction of Prince George's County offenses, after which the girl's father filed a formal charge of rape against the two men with the Prince George's County authorities. A Prince George's County police officer, Sergeant Wheeler, interviewed the girl at the hospital. She refused to say she had been raped. She told the officer she had previously had relations with one of the men and also that in the previous two years she had had sexual relations with numerous boys and men, some of whom she did not know.
7
Finally, the prosecution allegedly suppressed facts concerning a hearing conducted in the Montgomery County Juvenile Court on September 5, 1961, apparently the day after the girl's release from her nine-day confinement in the psychiatric ward at Prince George's General Hospital, and three months before the trial. The hearing resulted in the commitment of the girl to the Montrose School for Girls where she remained for some time. Lieutenant Whalen testified that he had arranged this hearing with the Montgomery County Juvenile Court authorities, although the girl was a resident of Prince George's County. He testified that the girl's mother had complained to him that 'the boys in Prince George's County were harassing the girl, driving back and forth past the house all hours,' and that he arranged the proceeding 'to place the girl in some place for protective custody.' The Montgomery Juvenile Court record discloses, however, that the hearing also inquired into the necessity for the girl's confinement as a juvenile 'out of parental control and living in circumstances endangering her well-being.' The girl testified at the hearing that she had taken pills because she felt that 'she wanted to die and there was nothing to live for.'
8
The petitioners' contention was that all of this evidence tended to support their testimony and discredit that of the girl and Foster and might, therefore, have produced an acquittal or, at least, a reduction of penalty.4 They also argued that knowledge of it by the defense would have provided valuable leads to evidence supporting a conclusion that the girl testified falsely in denying that she consented to relations.
9
The petitioners were represented at the trial by appointed counsel.5 He testified at the post-conviction proceeding that he knew nothing before the trial of the incidents of August 26, the girl's suicide attempt, her confinement in the hospital, the psychiatrist's diagnosis of her mental illness, or of her commitment to the Montrose School for Girls. He testified that he had tried, before August 26, to interview the girl at her home but that her mother told him 'she talked to Lt. Whalen and he told her not to discuss the case with us.' He also testified that, based on petitioners' story to him that the girl had told them she was on probation, he inquired of the Juvenile Courts of both Prince George's County and Montgomery County whether there were any proceedings in those courts concerning the girl and was told records of such proceedings were not released.
10
Judge Moorman found 'that the State withheld from the defense and suppressed both the evidence concerning the second rape complaint of the prosecutrix and the evidence relative to her alleged attempted suicide and emotional disturbance.' He ordered a new trial, despite the absence of a pretrial request by defense counsel for disclosure of the evidence suppressed. See Brady v. State of Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215.
11
The Court of Appeals read Judge Moorman's opinion to hold that nondisclosure of evidence by the prosecution denies the accused due process if the evidence could reasonably be considered admissible and useful to the defense. The Court of Appeals viewed that formulation to be incomplete, holding that 'for the nondisclosure of evidence to amount to a denial of due process it must be such as is material and capable of clearing or tending to clear the accused of guilt or of substantially affecting the punishment to be imposed in addition to being such as could reasonably be considered admissible and useful to the defense.' 239 Md., at 469—470, 212 A.2d, at 108. The court found the evidence allegedly suppressed did not meet that test and held that in any event 'the failure of the prosecution to disclose the information relating to the alleged rape of August 26th and the subsequent suicidal attempt was not prejudicial to * * * (petitioners) and did not therefore warrant the granting of a new trial on the basis of the denial of due process.' 239 Md., at 471, 212 A.2d, at 109.
12
The facts found by Judge Moorman do not include elements present in earlier decisions which determined that the suppression of evidence constituted the denial of due process of law. See Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791; Pyle v. State of Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214; Alcorta v. State of Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9; Napue v. People of State of Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217; Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690; compare United States ex rel. Almeida v. Baldi, 3 Cir., 195 F.2d 815, 33 A.L.R.2d 1407; United States ex rel. Thompson v. Dye, 3 Cir., 221 F.2d 763; Barbee v. Warden, 4 Cir., 331 F.2d 842. Thus the case presents the broad questions whether the prosecution's constitutional duty to disclose extends to all evidence admissible and useful to the defense, and the degree of prejudice which must be shown to make necessary a new trial. We find, however, that it is unnecessary, and therefore inappropriate, to examine those questions. In Napue v. People of State of Illinois, supra, 360 U.S., at 269, 79 S.Ct., at 1177, we held that a conviction must fall under the Fourteenth Amendment when the prosecution 'although not soliciting false evidence, allows it to go uncorrected when it appears,' even though the testimony may be relevant only to the credibility of a witness. We now have evidence before us, which neither Judge Moorman nor the Court of Appeals considered, which in our view justifies a remand to the Court of Appeals for its consideration whether that court should order an inquiry to determine whether such a situation arose at petitioners' trial. The evidence consists of two police reports, not part of the record, which came to our attention when the State at our request supplied the material considered by the trial judge in imposing sentence.
13
On the morning after the alleged rape, July 21, 1961, Montgomery County police officers, including Lieutenant Whalen and Detective Collins, conducted interviews with the girl and Foster. The interviews were written up in one of the police reports. In an effort to prove the allegations of the petition, defense counsel moved during the post-conviction proceedings that Lieutenant Whalen be directed to produce the report for inspection. The motion was denied; Judge Moorman ruled the report was a police 'work product' and therefore not producible under Maryland's Rules of Procedure.
14
There can be little doubt that the defense might have made effective use of the report at the trial or in obtaining further evidence. In the first place, the report attributes statements to the girl and Foster that appear inconsistent with their trial testimony. The report quotes both as stating they were engaged in sexual relations when they were distracted by the noise at Bowie's car, and that the girl dressed before petitioners and Johnson approached. They testified at trial, however, that they were merely 'sitting' in the back seat of the car from the time their companions left until their attention was drawn to the presence of the four men at Bowie's car, and Foster buttressed this testimony on cross-examination by answering 'No' to the question whether he 'didn't take her out there to have sexual relations with her, yourself * * *?' Finally, neither Lieutenant Whalen nor Detective Collins mentioned, in their summaries at trial of what each person involved in the incident had told them, the fact that the girl and Foster had stated they were engaged in sexual relations when they heard the three men.
15
The testimony of the girl and Foster is open to the construction that these key witnesses deliberately concealed from the judge, jury, and defense counsel evidence of the girl's promiscuity.6 While under the law of Maryland specific acts of misconduct are inadmissible to impeach a witness' credibility, Rau v. State, 133 Md. 613, 105 A. 867, and specific acts of intercourse are inadmissible to establish the prosecutrix' consent. Humphreys v. State, 227 Md. 115, 175 A.2d 777, prior inconsistent statements and evidence of general reputation for unchastity are admissible to impeach a witness' credibility, see Giles v. State, 229 Md. 370, 183 A.2d 359. And to the extent credibility could have been effectively attacked in this case, resolution of the issue of consent necessarily would have been affected since it turned wholly on credibility.
16
The report could also have been used in connection with an issue which has been in this case from its inception. At the original trial, counsel sought in numerous ways to establish that John Giles had not had intercourse with the victim. At the trial the girl said all three had raped her. She admitted, however, that she had testified at the preliminary hearing and had told the police immediately after being attacked that only two of the three had intercourse with her. Detective Collins testified, on the other hand, that he 'questioned the girl at the station and she said all three of the boys had intercourse with her.' With specific reference to John Giles, Collins stated that the girl 'was asked if she knew anybody in this line-up and she walked over and pointed to the defendant, John Giles, and stated to us, in his presence, that he was the first * * * that had intercourse with her * * *.' Lieutenant Whalen denied that the girl had told him 'that only two of these boys had intercourse with her on that evening * * *.'
17
Counsel at the post-conviction proceedings continued to attempt to prove John Giles was innocent of rape. He introduced newspaper articles from the Washington Evening Star and the Washington Post attributing to Lieutenant Whalen a story that the girl had said only two men had raped her. When Whalen said these stories were incorrect, counsel asked: 'would your interview report of this interview show what * * * (she) said about the number of men who sttacked her?' Whalen answered that it would. Counsel thereupon moved for the production of the report, but the court refused to allow him to see it because of the work-product rule. Counsel also asked the girl how many men she originally claimed had raped her and, unlike her testimony at trial, she said she had told the police all three had raped her.
18
In contrast to much of this testimony the police report states that, both when interviewed and at a police lineup later that day, the girl identified petitioner John Giles not as the first to have intercourse with her, as Detective Collins testified, but as 'the one that tried to have intercourse with her but was unable to do so,' 'the man that tried to rape her * * *.' The contents of the report thus go, not only to the credibility of the State's witnesses, but also to the issue at trial whether John Giles had raped the girl. Yet nothing appears in the trial transcript to show what, if any, action was taken by the prosecution to correct or explain the inconsistencies between the testimony of the state witnesses and the report.7
19
Only the most strained reading of the materials before us can explain away the questions raised by the report without the aid of further inquiry. A second report, filed by Sergeant Duvall who was first at the scene of the incident, far from proves that John Giles penetrated the girl. His report recites that the girl 'stated that two of the * * * males had entered her and that the third had tried but gave up when he saw lights coming.' While this statement would seem to indicate that John Giles, who was the first to attempt intercourse, penetrated the girl, it must be read in light of the fact that Duvall's report is a two-page, third-person summary, representing what had transpired during the tense and hectic moments immediately after the incident, when the girl was nearly hysterical according to police testimony. The other report, in contrast, is 22 pages long, was put together over at least a three-day period, and contains extensive quotations of the girl's story taken down in the relative calm of the police station after the girl had been treated and fed, including her reaction in personally identifying John Giles as the one who failed to have intercourse. Moreover, Duvall's report does state that the girl told him that only two of the men entered her, and therefore provides no explanation for the officers' testimony that she had said all three had entered her. In fact, far from explaining the police testimony, the report raises a serious question as to the accuracy of Sergeant Duvall's testimony at the original trial that he never discussed with the girl the number of boys who had had intercourse with her.8
20
The State attempted in the post-conviction proceedings to explain the girl's inconsistent statement at the preliminary hearing of contending that she was unaware of the difference between the meaning of intercourse and emission, which caused her to testify at first that only two of the men had had intercourse with her. The state witness who propounded this theory did not offer it at the original trial, in which he participated, although the girl's explanation then was that she was confused about the names of the defendants, not about the difference between intercourse and emission.9 And the report reveals no confusion on the latter point. She spoke there of intercourse as a 'process,' and at one point stated that the second of the youths 'had intercourse for about ten minutes and reached a climax.'10 She said of John Giles, not that he failed to reach a climax, but that he failed to 'insert' because he 'could not get' an erection. Of course it is possible that she was confused despite this evidence, and that John Giles achieved penetration. But it is not our place to decide these issues, either for or against petitioners; we need only determine that the evidence raises an issue of sufficient substance to justify remanding this case for reconsideration rather than deciding the broader constitutional question.11
21
Original trial counsel testified at the post-conviction proceeding that he had seen the prosecution's file before trial, including the police reports. Since the reports were not produced, it is pure speculation to conclude that trial counsel had in fact seen the reports now before us. And if it were proper to resolve this question against petitioners, the Court of Appeals might nevertheless regard an inquiry to be in order to ascertain trial counsel's reasons for not making use of the reports in support of the defense he was directing on behalf of petitioners. Finally, the determination of these questions against petitioners would still leave open the question whether the Court of Appeals might regard the situation as one in which the prosecution was under a duty to disclose the discrepancies to the trial judge; the court stated in its opinion that, where there is doubt as to what should be disclosed, 'the trial court should decide whether or not a duty to disclose exists.' 239 Md., at 471, 212 A.2d, at 109.
22
In relying upon material not part of the record as a reason for remand, we follow our practice of noticing supervening matter in order to avoid deciding constitutional questions by allowing state courts to take action which might dispose of the case. See for example, Patterson v. State of Alabama, 294 U.S. 600, 55 S.Ct. 575, 79 L.Ed. 1082; Bell v. State of Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822. We follow this practice under varying circumstances, but the principle behind it has always been the same. This Court has 'discretion as to the time and mode in which it will exert the powers conferred upon it. That discretion should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the States, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution.' Ex parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 740, 29 L.Ed. 868.
23
It is not for us to direct what the Maryland courts will do in this case. The Court of Appeals may, for all we know, determine that the additional evidence demonstrates prejudice to the degree necessary under its previously applied standard to warrant a new trial. It may remand for a hearing free of the 'work product' rule. It may reaffirm its judgment of reversal. Although relief may ultimately be denied, affording the state courts the opportunity to decide in the first instance is a course consistent with comity, cf. 28 U.S.C. § 2254, and a full and fair hearing in the state courts could make unnecessary further evidentiary proceedings in the federal courts. See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770. We would remand because of our conclusion that the police reports, considered in the context of the record before us, raise questions sufficient to justify avoiding decision of the broad constitutional issues presented by affording the opportunity to the Maryland Court of Appeals to decide whether a further hearing should be directed. See Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408.
24
The truism that our federal system entrusts the States with primary responsibility in the criminal area means more than merely 'hands off.' The States are bound by the Constitution's relevant commands but they are not limited by them. We therefore should not operate upon the assumption—especially inappropriate in Maryland's case in light of its demonstrated concern to afford post-conviction relief paralleling that which may be afforded by federal courts in habeas corpus proceedings12—that state courts would not be concerned to reconsider a case in light of evidence such as we have here, particularly where the result may avoid unnecessary constitutional adjudication and minimize federal-state tensions.
25
We would therefore vacate the judgment of the Court of Appeals and remand to that court for further proceedings.
26
Mr. Justice WHITE, concurring in the judgment.
27
I concur in the judgment of the Court, although I am unable to join the opinion of my Brother BRENNAN. In my view, there was no violation of the rule of Napue v. People of State of Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217. The argument is that at the trial the police officers testified that the complaining witness had said, all along, that three men had raped her, whereas the police reports supplied to the Court after oral argument clearly indicate that the complaining witness had told the officers at one point that only two men had raped her. Although the fact misstated by the police at trial bears primarily upon the credibility of the officers who testified, it might be argued that in addition the false testimony bore some relationship to the credibility of the prosecuting witness and to the question whether both of the petitioners had in fact committed rape. But these issues were not overlooked by petitioners' counsel at trial, who then confronted the complaining witness with the inconsistency in her allegations. Had petitioners' counsel been less diligent, the false testimony might rise to the level of a Napue violation.1
28
Concerning the testimony given by Foster as to why he was with the complaining witness on the evening of the alleged rape there can be no argument under Napue, a point made clear by the opinion of my Brother HARLAN.
29
Nevertheless, for the reasons which follow I concur in the judgment remanding the case to the Maryland Court of Appeals for further consideration.
30
Petitioners here were appellees in the Maryland Court of Appeals, having prevailed in the trial court in their post-conviction attempt to win a new trial. In the Maryland appellate court, they sought to sustain the judgment not only on the grounds stated by the Circuit Court—supression of evidence with respect to an alleged false rape claim and a suicide attempt but on the additional ground that the State had suppressed other evidence, including evidence with respect to the rape victim's reputation for promiscuity and evidence with respect to her mental condition. The Maryland Court of Appeals apparently considered it appropriate and important to dispose of these additional suppression claims. With respect to reputation for unchastity the court acknowledged the admissibility of such evidence where consent is an issue. The court held, however, that the prosecution could not be charged with withholding reputation evidence since the defense itself had ample knowledge of the promiscuous conduct of the prosecuting witness. As to her mental condition, the court cited with approval People v. Bastian, 330 Mich. 457, 47 N.W.2d 692 (1951), apparently conceding that evidence of 'nymphomania'—which the court referred to as a 'type of mental illness'—was admissible in a case such as this. But the court held (1) that the prosecution could be charged only with the knowledge that the mother of the victim had at one time taken her to a psychiatrist; (2) that there was nothing in the record to show that the victim was suffering from nymphomania; and (3) that even if she was so afflicted, 'there is nothing to show that this made her incompetent as a witness or that she consented to the acts for which the appellees were convicted.'
31
Of course, the court's ultimate result unavoidably followed from these factual determinations and it would appear that the evidence now in the record is consistent with these conclusions. But this does not end the matter in my view, if the inquiry permitted the petitioners in the trial court was not all that the Maryland law allows or that the constitution requires. And based on the record as it comes here, I am not at all sure that there has been a full airing of the suppression issue or that the petitioners are responsible for the obvious shortcomings in the evidence with respect to the mental condition of the rape victim and the prosecution's knowledge with respect to this matter. I am sufficiently unsure that I would remand for further consideration by the Maryland Court of Appeals.
32
To set in perspective those parts of the record which concern me, a brief summary of the facts is necessary. In chronological order, this case involves the alleged rape by petitioners, a subsequent occasion upon which the complaining witness experienced sexual intercourse with two young men (which led to the so-called false rape claim), a suicide attempt by the complaining witness followed by temporary hospitalization in a psychiatric ward, a juvenile court proceeding as a result of which the complaining witness was sent away from her home, and finally the trial at which the petitioners were convicted. While the complaining witness was hospitalized, she was subjected to a psychiatric examination by Dr. Doudoumopoulis, who related his opinion to Dr. Connor, who in turn spoke with the parents of the complaining witness. In addition, and highly relevant to the issue of suppression, the record of the juvenile court proceedings reflects the fact that Lieutenant Whalen of the Montgomery County Police Department had discussed the matter of confinement of the complaining witness with Dr. Connor and had arranged for and participated in the juvenile court hearing.
33
The following excerpts from the post-conviction hearing transcript are the source of my concern with the record as it comes to us.
34
Dr. Connor testified that he had seen the complaining witness daily during her hospitalization following the suicide attempt.
35
'Q. And on the subsequent days could you tell us what part of the hospital you saw her, which ward?
36
'A. I saw her on A Wing, which is the psychiatric ward.
37
'Q. Did you request Dr. Doudoumopoulis to make a psychiatric evaluation of Miss Roberts?
38
'A. Yes, I did.
39
'Q. And did he report to you his evaluation or diagnosis of her case?
40
'A. Yes, he did.
41
'Q. Did you concur with him?
42
'A. Yes, I did.
43
'Q. Could you tell us what that disgnosis or evaluation was?
44
'Mr. Kardy: Just a minute, doctor. Object, Your Honor.
45
'The Court: Objection sustained.'
46
Subsequently, Dr. Connor, who had not performed the psychiatric examination, was allowed to testify concerning his nonpsychiatric diagnosis of the patient, and his conclusion was 'adolescent reaction.' The failure of the hearing to produce, through Dr. Connor, any meaningful testimony regarding the psychiatric condition of the complaining witness might have been presaged by the testimony the same Doctor was allowed to give on deposition2 prior to the post-conviction hearing, the contents of which follow:
47
'Q. Did you see (Joyce Carol Roberts) during the hospitalization?
48
'A. During the hospitalization, yes.
49
'Q. At that time did you have occassion to speak to Lieutenant Whalen of the Montgomery County Police Department about Joyce?
50
'A. I spoke to someone from the Montgomery County Police Department during that period. I don't know just exactly who it was or the exact date, but I do recall talking to someone about her.
51
'Q. And where did that conversation take place?
52
'A. I believe it was in my office at 4713 Berwyn Road, in College Park. My office was there.
53
'Q. Will you state the substance of that conversation?
54
'Mr. Kardy: I object.
55
'The Court: The objection is sustained.
56
'Mr. Witt: Your Honor, we are seeking to find out what information was given to the State about the credibility of this witness.
57
'The Court: He has not testified that he talked to anyone from the State; he said he talked to someone in Montgomery County.
58
'Mr. Witt: Montgomery County Police Department, Your Honor.
59
'The Court: He said 'to someone,' as I heard his answer.
60
'Mr. Witt: Can we have the answer read back?
61
'The Court: Doctor, can you identify the person to whom you talked?
62
'The Witness: No, sir; I cannot. I recall there was someone from the police department.
63
'Mr. Kardy: Of Montgomery County?
64
'The Witness: Of Montgomery County.
65
'The Court: Counsel, do you proffer to show that from that conversation the State's Attorney had knowledge that there was evidence suppressed which would have been a defense to the crime?
66
'Mr. Witt: Yes, Your Honor.
67
'The Court: What specifically do you proffer to show?
68
'Mr. Witt: We proffer to show that State had knowledge of this girl's psychiatric condition at the time.
69
'The Court: What difference would that make?
70
'Mr. Witt: It is under Napue against Illinois. Evidence respecting the credibility of a witness which is in the possession of the State at the time of the trial and which is suppressed by State is a violation of due process.
71
'The Court: I will sustain the objection.
72
'Q. Did you at that time have occasion to speak to either or both of Joyce's parents?
73
'A. Well, I was speaking to her mother on frequent occasions, and I spoke to her father on one or more occasions, I don't recall how often.
74
'Q. And did you discuss with them what should be done for Joyce?
75
'A. Yes.
76
'Q. Will you state what was said?
77
'Mr. Kardy: Just a minute, Doctor. I object.
78
'The Court: Objection is sustained.
79
'Q. Did either of them tell you about any other alleged rape of Joyce?
80
'Mr. Kardy: I object.
81
'The Court: Sustained.
82
'Q. Did any member of Joyce's family tell you about any other alleged rape of Joyce?
83
'Mr. Kardy: I object.
84
'The Court: Sustained.
85
'Q. In the course of your treatment of Joyce during this period, did you have occasion to call in another doctor?
86
'A. Are you referring to hospitalization?
87
'Q. Yes.
88
'A. Yes, I did.
89
'Q. And who was that doctor?
90
'A. Dr. Doudoumopoulis.
91
'Q. Did you discuss Joyce with him after he had seen her?
92
'A. Yes, i did.
93
'Q. Did he diagnose her as a juvenile schizophrenic?
94
'Mr. Kardy: Just a minute; don't answer that. I object.
95
'The Court: The objection is sustained.
96
'Q. Did you discuss with Dr. Doudoumopoulis what treatment Joyce should receive?
97
'Mr. Kardy: I object. * * *
98
'The Court: I think it is immaterial. I will sustain the objection.'
99
Immediately after Dr. Connor's deposition was taken, Lieutenant Whalen of the Montgomery County Police Department was put under oath. Lieutenant Whalen testified that he had contacted Mr. Kardy, the prosecutor, and that they arranged for a hearing in the juvenile court in Montgomery County on September 5, 1961. The reason for seeking protective custody for the girl was that, in Whalen's words: '(T)he boys in the area were harassing the girl so bad that she (the mother) would like to get some help for the girl. * * *'
100
'Q. Were you present throughout that juvenile court hearing of September 5, 1961?
101
'A. I was in and out of the courtroom. I was not there every second.
102
'Q. Let me go back a minute; isn't it a fact that prior to this hearing you had talked to Dr. Connor with respect to Joyce Roberts' mental condition?
103
'Mr. Kardy: I object.
104
'Mr. Forer: * * * Your Honor, we had Dr. Connor on the stand earlier today, and Dr. Doudoumopoulis; we were trying to lay a foundation by showing that the girl's condition was such that it would have affected her credibility. Dr. Doudoumopoulis actually was qualified, as a qualified psychiatric expert, to say if it would have affected her credibility. It would have been relevant to whether or not she invited this intercourse or rejected it.3 And with Dr. Connor we also brought out whatever the doctors discovered he had told some representatives from the Montgomery County police. But Your Honor excluded our questioning designed to go into the mental condition of the girl. Now, Your Honor is excluding my asking him whether he knew about it on the grounds that we have not established the significance of the mental condition.
105
'The Court: I will sustain the objection. I do not think it is proper in this procedure.
106
'Q. Now let us go back to this juvenile court hearing in Montgomery County, September 5, 1961. Was anything said at the juvenile court hearing about the fact that Joyce Roberts had attempted to commit suicide shortly before that date?
107
'Mr. Kardy: I object.
108
'The Court: I will sustain the objection.' The day before the post-conviction hearing began, Dr. Doudoumopoulis, although subject to a bench warrant had 'left for Maine' for two weeks. In all fairness to the presiding judge, it should be noted that he offered to continue the hearing until the Doctor could be reached for his testimony. But on the other hand, the counsel for petitioners perhaps had no reason to expect that the course of the post-conviction hearing would run any differently for that at the deposition proceeding in advance of the hearing,4 where Dr. Doudoumopoulis, and the petitioners' counsel, could achieve only the following interchange.
109
'Q. Dr. Doudoumopoulis, on or about August 26, 1961, in the course of your practice, did you have occasion to see a girl by the name of Joyce Carol Roberts?
110
'A. I saw her on the 28th of August, 1961.
111
'Q. Where did you see her?
112
'A. At Prince George's Hospital.
113
'Q. What caused you to see her?
114
'Mr. Kardy: I object.
115
'The Court: I will overrule it. I will permit that.
116
'Q. You may answer.
117
'A. Dr. Charles D. Connor had asked me to make a psychiatric evaluation of her.
118
'Q. Did you interview her?
119
'A. Yes, I did.
120
'Q. Did you reach any conclusions about her condition?
121
'Mr. Kardy: Just a minute, Doctor. I object.
122
'Mr. Witt: Your Honor, we are seeking to discover what the doctor's diagnosis was, and then to link it up with the knowledge of the State with respect to that condition. That is the purpose.
123
'The Court: The objection is sustained.
124
'Q. Do you know Dr. Charles Connor?
125
'A. Yes.
126
'Q. Did you discuss Joyce with him?
127
'A. Yes.
128
'Q. Did you tell him your conclusions—
129
'Mr. Karby: I object.
130
'Q.—in respect to Joyce's condition?
131
'Mr. Kardy: I object.
132
'The Court: He can answer it yes or no.
133
'The Witness: Yes.
134
'Q. Did you discuss with him what should be done for Joyce?
135
'A. Yes.
136
'Q. Will you tell us the discussion with respect to what should be done with Joyce at that time?
137
'Mr. Kardy: I object.
138
'The Court: Sustained.
139
'Q. Did you talk to Joyce's parents?
140
'A. I think it was the mother that I talked to.
141
'Q. Did you have any discussion with her with respect to what should be done for Joyce? * * * Did you discuss a hospitalization of Joyce?
142
'Mr. Kardy: I object.
143
'The Court: The objection is sustained.'
144
Because the record of the juvenile court proceeding clearly indicated that psychiatric evidence concerning the complaining witness had flowed from the doctors into that hearing, the record of which also reflected the presence of Lieutenant Whalen, the petitioners' counsel sought to pursue their inquiry through Mr. Lynn Adams, an officer of the juvenile court who had been instrumental in the juvenile court proceedings. This inquiry was likewise cut short:
145
'Q. Now, it is a fact, is it not, a Lieutenant Detective Whalen of the Montgomery County Police Department was also present at that hearing?
146
'A. Yes, according to my information it was.
147
'Q. It is a fact, is it not, that the charge against Joyce Roberts was that she was out of parental control and living in circumstances endangering her well-being?
148
'Mr. Kardy: Object.
149
'The Court: Sustained.
150
'Q. Was it brought out at this hearing that Joyce Roberts had attempted to commit suicide shortly before the hearing?
151
'Mr. Kardy: Just a minute, Mr. Adams. Object.
152
'The Court: Sustained.
153
'Q. Was it brought out at this hearing that in late August of 1961 Joyce Roberts had accused two men of raping her?
154
'Mr. Kardy (To the Witness): Just a minute. Object.
155
'The Court: Sustained.
156
'Q. Did you speak, by telephone or otherwise, with a psychiatrist by the name of Dr. Alexander Doudoumopoulis?
157
'A. Yes.
158
'Q. Did he give you any information regarding the mental condition or mental health of Joyce Roberts in this conversation that you had with him?
159
'A. Did he—yes, regarding the mental health, yes.
160
'Q. What was the information that he gave you regarding Joyce Roberts' mental health in this conversation?
161
'Mr. Kardy: Just a minute. Object, Your Honor.
162
'The Court: Sustained.'
163
The presiding judge seems to have closed off Mr. Adams as a source of information on the ground that he had no other choice under Rule 922 of the Maryland Rules of Procedure governing juvenile causes. The rule specifies that:
164
'A person having a direct interest in a case may examine any part of the record thereof, except medical and case histories and other reports which the court may designate confidential. Such a person may also examine such histories and confidential reports with prior written permission of the court. The court may, however, from time to time, designate by general orders persons or agencies who may inspect any record, or specific classes of records, without additional written permission. Except as provided herein, no other person may examine any juvenile record, including the docket, without prior written permission of the court.' Md. Ann.Code, c. 900, Rule 922.
165
At the post-conviction hearing, the petitioners held an authorization of the juvenile court to examine the records concerning the September 5, 1961, hearing. The authorization included permission to 'make available said records for use, including introduction into evidence * * * and to any persons with knowledge thereof to testify about any aspect of the proceedings * * *involving said Joyce Carol Roberts.'5 The presiding judge in the post-conviction hearing was of the view that Rule 922 allowed the juvenile court only the power to make the record available for examination, not to 'put it in evidence.' See Vol. I, Post-Conviction Hearing Transcript, at 66. This, of course, does not explain why the judge himself did not examine the record, as he had expressly been authorized to do by the juvenile court. Had the judge made such an examination, he might have concluded that his decision regarding the admissibility of the record and of testimony by witnesses who had attended the hearing would require a more complete consideration of the purpose of and policies served by Rule 922. And in any event—although this is a matter of Maryland law about which I am not at all sure—the Rule would not seem to be a bar to testimony by those who had attended the juvenile court hearing when asked questions concerning information obtained outside the juvenile court hearing. If I am correct in this regard, the Rule could not stand in the way of testimony by Dr. Connor as to his conversations with Dr. Doudoumopoulis, or as to his conversations with the Montgomery County police officer, or as to any conversations either of the doctors might have had with Mr. Lynn Adams outside the juvenile court hearing. An additional matter raises my doubts further about the force which Rule 922 should have had at the post-conviction hearing. The State has since supplied this Court with what is apparently the complete file and record of the September 5, 1961, juvenile court proceedings involving the complaining witness. The State apparently no longer considers Rule 922 a bar to judicial consideration of these items. I do not wish to suggest that the presiding judge's exclusion of the juvenile court record, and of possible testimony of Adams, Whalen, Connor, and Doudoumopoulis was necessarily incorrect. But the duty to make that decision and the right to make it in the first instance belongs to the Maryland court, and my point simply is that the circumstances of the post-conviction hearing in this case compel a more complete consideration of the issue.
166
There is another matter for the consideration of the Maryland court: the prosecuting attorney of Montgomery County was not charged with the knowledge of Prince George's County officers but he was charged with what the police officers of Montgomery County knew. Was he also charged with the knowledge of other Montgomery County officials such as Lynn Adams, and, to the extent of their involvement with Montgomery County agencies, Dr. Connor and Dr. Doudoumopoulis?
167
In the end, any allegation of suppression boils down to an assessment of what the State knows at trial in comparison to the knowledge held by the defense. It would seem that the Maryland Court of Appeals would reverse as unconstitutional a conviction in a trial that included suppression of evidence tending to prove nymphomania, or more comprehensively, suppression of evidence concerning the mental condition of the complaining witness and the interrelated issues of her consent and credibility. If such is the case, it would be helpful to have the Maryland Court of Appeals' views as to whether on this record the petitioners have been afforded a full and fair hearing on this issue.
168
Mr. Justice FORTAS, concurring in the judgment.
169
I concur in the Court's judgment in this immensely troubling case, but I do so for the reasons which led the Montgomery County Circuit Court to order a new trial.
170
On petitioners' motion for post-conviction relief, Judge Moorman of the Circuit Court sustained the claim that the prosecution had violated their federally protected right to due process of law when it failed to disclose to defense counsel evidence, known to the prosecution, concerning two incidents which occurred about one month after the crime charged to them and four months prior to trial. These incidents were: (1) the prosecutrix' sexual encounter with two boys at a party, followed by the filing and eventual dropping of a rape charge; and (2) her attempted suicide within hours of the foregoing incident and her ensuing hospitalization for psychiatric examination. The Circuit Court ruled that this information could 'be reasonably considered admissible and useful to the defense,' that in consequence the prosecution was under a duty to disclose, and that its omission to do so required a new trial.
171
The Maryland Court of Appeals reversed. It held that, even if admissible, the evidence in question was insufficiently 'exculpatory' to warrant a new trial. The attempted suicide was shunted aside on the ground that its 'probative value' was not such as to affect either the competence or credibility of the prosecutrix as a witness. Both it and the rape claim were disposed of on the assertion that 'specific acts of misconduct' are not admissible to impeach credibility, and that 'the only possible use of the facts surrounding the alleged rape claim would be for purposes of showing the unchastity of the prosecutrix, a fact that was already known to the defense at the time of the rape trial.'
172
Judges Oppenheimer and Hammond dissented. They noted that the alleged rape claim and its abandonment might well have been useful in corroborating the petitioners' account of what happened, that no Maryland evidentiary rule rendered inadmissible in a rape prosecution evidence that the prosecutrix suffered from a mental or emotional disturbance short of 'insanity,' and that in any event these bits of information might have furnished the defense with important leads to other and more potent evidence. The dissenters asserted that the majority erroneously substituted its appraisal of the weight to be attached to the suppressed evidence for a jury's possible evaluation, and that it erred in applying too stringent a test of admissibility.
173
I do not agree that the State may be excused from its duty to disclose material facts known to it prior to trial solely because of a conclusion that they would not be admissible at trial.1 The State's obligation is not to convict, but to see that, so far as possible, truth emerges. This is also the ultimate statement of its responsibility to provide a fair trial under the Due Process Clause of the Fourteenth Amendment. No respectable interest of the State is served by its concealment of information which is material, generously conceived, to the case, including all possible defenses.
174
This is not to say that convictions ought to be reversed on the ground that information merely repetitious, cumulative, or embellishing of facts otherwise known to the defense or presented to the court, or without importance to the defense for purposes of the preparation of the case or for trial was not disclosed to defense counsel. It is not to say that the State has an obligation to communicate preliminary, challenged, or speculative information. But this is not that case. Petitioners were on trial for their lives. The information was specific, factual, and concrete, although its implications may be highly debatable. The charge was rape, and, although the circumstances of this case seem to negate the possibility of consent, the information which the State withheld was directly related to that defense. Petitioners' fate turned on whether the jury believed their story that the prosecutrix had consented, rather than her claim that she had been raped. In this context, it was a violation of due process of law for the prosecution to withhold evidence that a month after the crime of which petitioners were accused the prosecutrix had intercourse with two men in circumstances suggesting consent on her part, and that she told a policeman—but later retracted the charge—that they had raped her. The defense should have been advised of her suicide attempt and commitment for psychiatric observation, for even if these should be construed as merely products of the savage mistreatment of the girl by petitioners, rather than as indicating a question as to the girl's credibility, the defense was entitled to know.
175
The story of the prosecutrix is a tragic one. But our total lack of sympathy for the kind of physical assault which is involved here may not lead us to condone state suppression of information which might be useful to the defense.
176
With regret but under compulsion of the nature and impact of the error committed, I would vacate the judgment of conviction and require the case to be retried. In view of the conclusions of my Brethren, however, I concur in the judgment of the Court sending this case back to the Court of Appeals for reconsideration.
177
ADDENDUM: My Brother HARLAN has addressed a section of his dissent to my concurring opinion. This discloses a basic difference between us with respect to the State's responsibility under the fair-trial requirement of the Fourteenth Amendment. I believe that deliberate concealment and nondisclosure by the State are not to be distinguished in principle from misrepresentation. This Court so held in Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Mr. Justice HARLAN concedes that the State may not knowingly use perjured testimony or allow it to remain uncorrected. He asserts that this satisfies 'in full' the requirements of the Fourteenth Amendment, and suggests that an extension of these principles is neither necessary nor advisable. This suggests that the State is never obligated to take the initiative to disclose evidence unless its nature is such as to impeach evidence that the State has offered. I assume that Mr. Justice HARLAN would apply this principle, even though the information might, in the hands of defense counsel, spell the difference between death and exoneration of the defendant. I cannot subscribe to this. A criminal trial is not a game in which the State's function is to outwit and entrap its quarry. The State's pursuit is justice, not a victim. If it has in its exclusive possession specific, concrete evidence which is not merely cumulative or embellishing and which may exonerate the defendant or be of material importance to the defense—regardless of whether it relates to testimony which the State has caused to be given at the trial—the State is obliged to bring it to the attention of the court and the defense. For example, let us assume that the State possesses information that blood was found on the victim, and that this blood is of a type which does not match that of the accused or of the victim. Let us assume that no related testimony was offered by the State. I understand my Brother HARLAN's comments to mean that he would not require the State to disclose this information. He would apparently regard Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690, as the outer limit of the State's duty. There the prosecution dramatically used a pair of shorts, misrepresented as saturated with blood, to secure a conviction. I cannot acquiesce that this is the end of the State's duty under the Constitution. Nondisclosure—deliberate withholding—of important information of the type described, which is in the exclusive possession of the State is, in my judgment, not reconcilable with the concept of a fair trial and with the Due Process Clause. I can readily see that differences of opinion might exist as to whether the nature of particular evidence is such that nondisclosure of it should result in setting aside a conviction. But I do not accept the notion that only where the effect of withholding evidence is to allow perjured testimony to stand uncorrected is there a duty to disclose. In my view, a supportable conviction requires something more than that the State did not lie. It implies that the prosecution has been fair and honest and that the State had disclosed all information known to it which may have a crucial or important effect on the outcome.
178
The newly amended Rule 16 of the Federal Rules of Criminal Procedure has little to do with the matter now before the Court. On its face, the Rule is directed to the relatively limited problem of pretrial discovery and inspection in the federal courts. Whether Rule 16 is adequate even for its purposes is the subject of differences of opinion. But it does not purport to exhaust the prosecution's duty. Mr. Justice HARLAN apparently finds no inconsistency between proscription of the prosecution's knowing use or acquiescence in the use of perjured testimony2 and Rule 16's silence on that subject. I find none in the requirement, recognized by this Court in Brady v. State of Maryland, supra, that the State apprise the defendant of information of the sort described herein, and the Rule's omission of such a requirement. My point relates, not to the defendant's discovery of the prosecution's case for purposes of preparation or avoidance of surprise, which is dealt with in Rule 16, but with the State's constitutional duty, as I see it, voluntarily to disclose material in its exclusive possession which is exonerative or helpful to the defense—which the State will not affirmatively use to prove guilt—and which it should not conceal. Brady involved neither the knowing use of perjured testimony nor acquiescence in its use. Nevertheless, both the Maryland Court of Appeals and this Court concluded that the prosecutor's conduct in withholding information material to guilt or punishment, information which defense counsel had unsuccessfully requested, violated due process. Although this Court included in its statement of the controlling principle a reference to counsel's request—'We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution * * *'3—I see no reason to make the result turn on the adventitious circumstance of a request. If the defense does not know of the existence of the evidence, it may not be able to request its production. A murder trial—indeed any criminal proceeding—is not a sporting event.
179
Mr. Justice HARLAN, whom Mr. Justice BLACK, Mr. Justice CLARK and Mr. Justice STEWART join, dissenting.
180
The disposition of this case, the product of three opinions, none of which commands the votes of a majority of the Court, is wholly out of keeping with the constitutional limitations upon this Court's role in the review of state criminal cases. For reasons that follow, I dissent.
181
On the basis of the trial record, it would be difficult to imagine charges more convincingly proved than were those against these three youths for raping this teenage girl.1 Following conviction, information came to light which seriously reflected on the sexual habits of the girl and on the stability of her character. These revelations were made the basis of a state post-conviction proceeding, premised on the claim that in failing to disclose these data at the time of trial the prosecution had been guilty of a deliberate suppression of material evidence and the knowing use of perjured testimony. The post-conviction judge found against those claims, but nonetheless ordered a new trial, holding that the data, which he deemed would have been admissible and useful to the defense, should have been disclosed by the authorities. The Court of Appeals of Maryland, holding as a matter of state law that this material was not such as to justify a new trial, reversed. This Court, without finding any constitutional flaw in the state proceedings, and indeed expressly recognizing that upon the facts as found by the state courts, petitioners' nondisclosure claim gives rise to no federal question under existing law, now returns the case to the Maryland Court of Appeals for what amounts to nothing more than reconsideration.
182
The plurality and one of the concurring opinions urge entirely different reasons for remanding the case in this fashion, and will thus oblige the courts of Maryland to reconsider a series of wholly unrelated issues. The plurality opinion and my Brother WHITE'S concurring opinion have only two common denominators: neither can identify any federal basis for this disposition, and both are concerned with questions which have been repeatedly considered by the state courts. Each of the three opinions requires discrete treatment, but I have concluded, for the reasons which follow, that none of them offers any basis on which the Court may properly return this case to the Maryland courts.
I.
183
I turn first to the reasons advanced by the plurality opinion. The unusual disposition made of this case by the plurality is bottomed upon materials entirely outside the record before us, furnished to this Court after the case was submitted, under the leverage of inquiries put from the bench during the argument. The materials are two preindictment police reports, the Montgomery County Officers' Report and the Supplementary Offense Report. It seems to me entirely improper for this Court to 'retry' state criminal cases in its own courtroom, and then to return them for reconsideration in light of materials 'discovered' outside the record during that process. Even apart from that regrettable practice, the remand of this case is the more remarkable because the materials on which the plurality relies are not in any sense newly discovered. The fact is that these police reports have played a significant role throughout the state court proceedings. They were made available to defense counsel at the original trial stage. They were given to and considered by the trial judge at the time of sentence. And although demanded by the new defense counsel in the post-conviction proceeding, their production was denied under a state procedural rule which apparently was not contested in the state appeal, and which is in no way now questioned by this Court from a federal standpoint. In consequence, the ultimate rationale for the plurality's disposition of the case is itself specious.
184
The use now made of these police reports is equally unsatisfactory. The discrepancies which the plurality finds between these reports and the trial testimony relate to two episodes. First, the girl, Joyce, and her companion, Foster, apparently initially told the police that they were having sexual intercourse in their car when they noticed the presence of the other car, whereas at trial Foster intimated that he and the girl were simply sitting in the rear seat. He denied elsewhere that he and his friends had brought Joyce out to the spot to have sexual relations with her. Second, one of the police reports is construed to suggest that Joyce had said that John Giles did not penetrate her, whereas her trial testimony was that all three men had raped her. The plurality argues that these discrepancies, if known to the defense, might have been used to establish the girl's reputation for promiscuity, to attack the credibility of prosecution witnesses, and possibly to exonerate petitioner John Giles entirely. It even suggests that the defense might have shown a deliberate suppression of evidence or a conscious failure to correct perjured testimony.
185
The short answer to all this is, of course, that the record makes plain that defense counsel at the trial was given access to these police reports2 and thus must be taken to have been aware of the very discrepancies of which the plurality now undertakes to make so much. There is no basis whatever in the evidence before us for the plurality's intimation that the reports seen by counsel may not have been those given to this Court or for its thinly veiled suggestion that in not making use of the supplementary report counsel may have been incompetent or worse.
186
Beyond this, a more careful examination than the plurality has given these reports and the record will itself dissipate the aura of suspicion and conjecture with which this case has now been surrounded. The plurality first suggests that perjured testimony may have been knowingly utilized by the prosecution to establish penetration of the girl by John Giles. Joyce initially testified at a pretrial hearing that only Johnson and James Giles had intercourse with her.3 Later in the same hearing she included John Giles, apparently with the explanation that she had first believed that rape requires emission as well as penetration. At trial she testified very specifically that John Giles had effected penetration. On cross-examination, she conceded that her first accounts both to the police and at the preliminary hearing indicated that only two men had intercourse with her. She again suggested that she had been confused. In contrast, the police officers testified at trial that Joyce had said in questioning on July 21 that John Giles had intercourse with her. The supposed inconsistencies among all these accounts were plain both to defense counsel and to the jury.4
187
Petitioners argued at the post-conviction proceeding that the police testimony was perjured, and that Joyce had initially said that John Giles did not attack her. They offered, in addition to Joyce's own admissions at trial, statements from petitioners' father, mother, and sister that a policeman had first mentioned only two assailants to them. In a deposition hearing, Joyce said that she did not recall ever conceding at trial that only two men had intercourse with her. Judge Moorman concluded that Joyce's terminological confusion adequately explained the supposed discrepancies with the police testimony. Although petitioners have not argued this issue here, the plurality now points to the supplementary report to suggest again that the police evidence might have been perjured, and remands for what it quite evidently hopes will result in another hearing on that issue.
188
It seems apparent that the references to this issue in the supplementary report are entirely equivocal. The report contains only three references to Joyce's statements on this question. First, Joyce is reported to have replied, when asked how many had intercourse with her, that 'The bigger one (John) tried first, then the other two.' Again, the statement is attributed to her, in the third person, that John 'tried to have intercourse with her but was unable to do so.' Finally, she is reported to have said that John Giles 'tried to insert' but 'could not get' an erection. The report indicates that John Giles was the first to begin to remove Joyce's clothing, that he kissed her, and that he 'tried' for some 10 minutes.5
189
It must first be plain that although these references are brief and imprecise, nothing in them necessarily excludes the conclusion that John Giles achieved penetration, however slight. Further, it must be recognized that the form and language of the supplementary report indicate quite clearly that it was prepared rapidly, under the urgency of the events, and without any expectation that its every word would now be weighed and balanced. Little wonder that the plurality's diligent pursuit of uncertainty has unearthed phrases which, so it supposes, permit some room for ambiguity.
190
Finally, it must be remembered that in the report, at the pretrial hearing, and at the trial itself, the police, the witnesses, and even counsel employed interchangeably various terms of very dissimilar meaning to describe the acts committed upon the girl by the defendants. The post-conviction proceeding court expressly found that Joyce for one was confused by this elusive terminology, and that this confusion explained any discrepancies in her various accounts of these events. This finding was not disturbed or even questioned by the Maryland Court of Appeals. Nonetheless, the plurality attempts to escape it with the suggestion, surrounded by cautious disclaimers, that it may possibly have been mistaken. The plurality offers three reasons for this suggestion. It first intimates that the finding may be mistaken because the State proffered this explanation only at the post-conviction proceeding. This is entirely unpersuasive; Joyce's confusion was apparent at least as early as the original preliminary hearing, and was not there offered by the State as an explanation, but instead became obvious to those present simply from the terms of Joyce's testimony. The plurality next suggests that Joyce at trial expressed confusion only as to the names of her assailants, and not about this terminology. This is twice deficient: it ignores that the terms of Joyce's testimony were perfectly well known to the state courts which made and accepted the finding, and it is bottomed on an unreasonable construction of the testimony.6
191
Lastly, the plurality contends that Joyce is not shown by the supplementary report to have been confused. There are two obvious answers. First, this assumes that the report precisely reproduces the words used by Joyce herself to describe these events, and that these words may therefore be sifted and weighed to establish Joyce's familiarity with this terminology. This is unsupported by the report itself, which contains no formal statements, and is instead an informal jumble of undigested information collected by the police as they conducted their investigation. At no point can the reader be entirely certain whether its words are the witness' or those selected by the police interrogators to digest the information given them. Finally, the plurality overlooks that there is uncontested testimony that Joyce was plainly and pertinently confused at the preliminary hearing. The plurality's speculation that she may or may not have been confused at one stage of this lengthy proceeding can scarcely vitiate the firm finding of the Maryland courts that she was confused at another and more crucial stage, and that this confusion explained any discrepancies in her accounts of these events. In sum, I find the plurality's oblique efforts to cast doubt on the finding of the state courts entirely unpersuasive.
192
Moreover, these references in the supplementary report must be viewed in light of the other police report furnished this Court, the Montgomery County Officers' Report. That report makes quite clear that Joyce indicated at the scene that John Giles 'had entered her.'7 The plurality seeks to explain the terms of this report with two suggestions. First, it intimates that the report may be unreliable because it is a summary of Joyce's statements 'immediately after the incident.' I should have thought that it would therefore be all the more important. At most, the plurality's intimation is an acknowledgment of the weaknesses of both reports. Neither report was intended to serve as a formal and precise record; it is therefore extraordinarily hazardous to pyramid, as the plurality has done, hypotheses upon strained constructions of the reports' most abbreviated references. This simply re-emphasizes the wisdom of the State's exclusionary rule, and the corresponding impropriety of the plurality's circumvention of that rule. Second, the plurality suggests that the report leaves unexplained the police testimony that Joyce had said that all three men had intercourse with her. This assumes first that the words 'gave up' in the report indicate that Joyce meant that James Giles did not penetrate, when in light of the other accounts given by both James Giles and Joyce, it could only have meant that he did not reach emission. More important, the plurality overlooks that the only questions which have ever been even intimated about whether any of the three youths failed to penetrate the girl center entirely on John Giles, and this is a plan statement in the police reports that Joyce had informed the police at least once that John Giles penetrated her. The plurality opinion cannot, and does not, deny that this is the most unequivocal reference in either report to John's actions, and that it makes plain that Joyce reported that John had penetrated her. Given the ambiguity of the references to John Giles in the supplementary report, Joyce's clear statement in the Officers' Report that John Giles had penetrated, and the no less plain statements in the supplementary report from Joyce, James Giles and Johnson that James and Johnson also penetrated, I am again unable to understand how it can be thought that there might be some basis for the attribution of perjury on this score to the police witnesses.8
193
The asserted discrepancies among the various accounts given of John Giles' participation by Joyce and the other prosecution witnesses have been forcefully argued at each stage of this case, they have been painstakingly considered by the state courts, and I can see no warrant for inviting those courts to examine the issue anew.
194
The plurality next suggests that the prosecution may also have been privy to the use of perjured testimony or guilty of a deliberate suppression of evidence in relation to what the girl and Foster were doing in the car just before their assailants came upon them. This is entirely insubstantial. Foster and the girl were never directly asked at trial, and did not volunteer, to describe what they had done while awaiting the return of their friends. They were not asked if they had intercourse. The question was only once even inferentially suggested. Foster was first asked 'What did you three boys take Joyce out there for that night?' and replied 'I told you we were going to meet some friends up there and go swimming.' The next question was 'You didn't take her out there to have sexual relations with her, yourself, did you?' and Foster replied 'No.' It would doubtless have been more forthright had Foster interjected that, whatever his original expectations, they had in fact had relations; nonetheless, his explanation was an adequate response to the precise question asked. In short, although the evidence was as to this point incomplete, it was, so far as it went, consistent with the police report.
195
I do not see how it can be suggested that the prosecutor's conduct in this instance was constitutionally vulnerable. First and foremost, the contents of the police reports on this episode were made available to the defense, and counsel elected to make nothing of them. Second, the omitted fact in Foster's testimony could not have had 'an effect on the outcome of the trial.' Napue v. People of State of Illinois, 360 U.S. 264, 272, 79 S.Ct. 1173, 1179, 3 L.Ed.2d 1217. Initially, it is very doubtful that this evidence would have been admissible at trial. Under the law of Maryland, specific acts of misconduct are not admissible to impeach a witness' credibility. Rau v. State, 133 Md. 613, 105 A. 867. Further, since the evidence at trial was merely silent on these issues, and did not include inconsistent statements, this evidence presumably would not have been admissible on that basis to impeach the credibility of these witnesses. Finally, although Maryland permits the admission of evidence of a prosecutrix' general reputation for immorality, it does not permit evidence of specific acts of intercourse. Shartzer v. State, 63 Md. 149; Humphreys v. State, 227 Md. 115, 175 A.2d 777. The Court of Appeals of Maryland has in this very case plainly said that 'a prosecutrix cannot be asked whether she had previously had intercourse with a person other than the accused.' Giles v. State, 229 Md. 370, 380, 183 A.2d 359, 363. The evidence with which the plurality is concerned therefore cannot 'reasonably be considered admissible,' Griffin v. United States, 87 U.S.App.D.C. 172, 175, 183 F.2d 990, 993, under the law of Maryland. Far more important from a federal standpoint, evidence of Foster's relations with the girl, even if admissible, could not have been substantially relevant to the principal factual issues at the trial. Its omission did not discolor the meaning of controlling facts, as did the episode involved in Alcorta v. State of Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9; nor did it measurably strengthen a witness' credibility, as did the one involved in Napue v. People of State of Illinois, 360 U.S. 264, 79 S.Ct. 1173. It would at most have given the defense another inconclusive intimation of Joyce's promiscuity, and this could scarcely have sufficed to change the trial's outcome.
196
The plurality ultimately seeks to justify its disposition of this case in terms of the rules by which this Court has given recognition to the different roles played under the Constitution by federal and state courts. These efforts are entirely unpersuasive. In essence, the plurality has first brought these police reports into the case through an informal discovery rule of its own creation which flies into the face of an unassailed state rule which excluded the reports, and now has invited the state courts to reconsider the case unrestricted by the local rule and not confined to the 'Constitution's relevant commands.' This scarcely fits the plurality's professed objective to 'minimize federal-state tensions.' And plainly this course finds no support in cases in which the Court has remanded for further consideration in light of a supervening event. Nothing here is remotely analogous to the change in state law that occurred in Bell v. State of Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822, or to the intervening judgments of this Court that took place in Patterson v. State of Alabama, 294 U.S. 600, 55 S.Ct. 575, 79 L.Ed. 1082, and in Dorchy v. State of Kansas, 264 U.S. 286, 44 S.Ct. 323, 68 L.Ed. 686. What is now done is explicable only on the premise that this Court possesses some sort of supervisory power over state courts, a premise which of course traverses the most fundamental axioms of our federal system.
II.
197
The rationale offered for remand by my Brother WHITE'S opinion is equally unsatisfactory. At bottom, that rationale consists of the supposition that the presiding judge at the state postconviction proceeding may possibly have misconstrued applicable Maryland law, and may therefore have improperly excluded testimony relevant to the mental condition of the prosecuting witness. My Brother WHITE does not suggest, as I think he cannot, that any of the rulings which he suspects to have been erroneous were deficient under any known federal standard. All of them at most involve, even under his premises, misapplications of Maryland law. Each of these rulings was plain on the face of the record presented to, and carefully considered by, the Maryland Court of Appeals; all the materials pertinent to the evaluation of these rulings were before that court at the time of its review.
198
The court did not, of course, explicitly determine the various questions now posed, but it did, as my Brother WHITE acknowledges, examine the record to decide whether Joyce might have been suffering from mental illness, or whether she was otherwise incompetent as a witness. Such an examination must inevitably have obliged the court to assess the very rulings and restrictions which it must now reassess upon remand. Despite this, neither the majority nor the dissenting opinion below expressed any doubt that these rulings were entirely dorrect. At a minimum, a remand thus needlessly prolongs an already protracted case; unfortunately, it may also appear to endorse the substitution of the speculations of this Court on the content of state law for the conclusions of the State's highest court, as basis for the return of a case to the state courts for reconsideration.
199
In any event, the hesitations expressed by Mr. Justice WHITE'S opinion about the scope of the evidence concerning Joyce's mental condition appear unwarranted on the record before us. The record makes plain that the court at the post-conviction proceeding permitted the admission of substantially more evidence on this issue than that opinion might be taken to suggest. First, the presiding judge permitted Dr. Connor, the attending physician, to state his diagnosis of Joyce's mental condition. In addition, Dr. Connor was allowed to indicate that he agreed with the diagnosis described to him by the consulting physician, Dr. Doudoumopoulis. Dr. Connor was not, as that opinion notes, permitted to describe that diagnosis, but the court supplemented its ruling with the statement to defense counsel that 'I would admit it if you put it in the right manner.' Both Dr. Connor and Dr. Doudoumopoulis were allowed in a deposition hearing to state whether they had discussed Joyce's condition with various officials of Prince George's and Montgomery Counties. Further, the court permitted another psychiatrist, Dr. Solomon, to state, in reply to a hypothetical question asked by defense counsel, his opinion of the mental condition of a girl in Joyce's circumstances. In addition, Dr. Solomon was permitted to describe the basis for his views, to offer his opinion as to what her mental condition might have been some three months later (the interval before the trial in this case), and to state that a girl in these circumstances warranted a psychiatric examination. Dr. Solomon was prevented from speculating only whether this condition might have affected the girl's credibility as a witness, an issue the court noted, which is for the jury, and not an expert witness, to determine. Finally, petitioners adduced very substantial evidence of Joyce's sexual history, all of which was pertinent to the court's determination whether she might have been suffering from mental illness.
200
Perhaps more evidence of Joyce's mental condition, and of the knowledge of Montgomery County authorities of that condition, could conceivably have been introduced; but it is true of all criminal prosecutions, federal and state, that some fragments of fact broadly pertinent to the issues of the trial do not reach the record. In any event, the petitioners themselves have apparently never challenged any of these rulings either before the Maryland Court of Appeals or in this Court. I can find no basis on the record before us for remanding this case simply in the hope that rulings of state law may now be held to have been improper, and thus that unknown additional evidence, which may or may not be pertinent and substantial, may then be admitted. This practice is warranted neither by the facts of this case nor by the role given to this Court by the Constitution in the review of state criminal convictions.
III.
201
My Brother FORTAS' proposed resolution of the case is, with great respect, no more satisfactory, although he would, to be sure, base its disposition upon an asserted federal question. His reasoning, as I see it, rests at bottom upon quite fundamental objections to the character and balance of our adversary system of criminal justice. Neither those objections nor the conclusions which stem from them form any part of the disposition made of this case, in which he joins; it would accordingly be inappropriate for me to respond in more than relatively summary fashion. I content myself, therefore, with outlining the reasons why I cannot subscribe to my Brother FORTAS' approach.
202
As I understand him, my Brother FORTAS believes that state prosecuting officials are compelled by the Fourteenth Amendment to disclose to defense counsel any information 'which is material, generously conceived the the case, including all possible defenses.' This would include all information which is 'exonerative or helpful.' This standard would demand markedly broader disclosures than this Court has ever held the Fourteenth Amendment to require. The Court has held since Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, that a State's knowing use of perjured testimony denies a fair trial to the accused. Mooney has been understood to include cases in which a State knowingly permits false testimony to remain uncorrected. Alcorta v. State of Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9; Napue v. People of State of Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217. The standard applied in such cases has been whether the testimony 'may have had an effect on the outcome of the trial.' Napue v. People of State of Illinois, supra, 360 U.S. at 272, 79 S.Ct at 1179. These cases were very recently followed and applied in Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690. Apart from dicta in Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, the Court has never gone further.9 Nor, in my view, does the Constitution demand more. This standard is well calculated to prevent the kinds of prosecutorial misconduct which vitiate the very basis of our adversary system, and yet to provide a firm line which halts short of broad, constitutionally required, discovery rules. It both guarantees the fundamental fairness of state criminal trials, thereby satisfying in full the requirements of the Fourteenth Amendment, and preserves intact the States' ultimate authority for the conduct of their systems of criminal justice. None of these advantages adheres to the standard suggested by my Brother FORTAS. His reasoning must inevitably result in the imposition upon the States through the Constitution of broad discovery rules. Those rules would entirely alter the character and balance of our present systems of criminal justice.
203
The extraordinary breadth of the standard apparently urged by Mr. Justice FORTAS becomes more plain when that standard is measured against Rule 16 of the Federal Rules of Criminal Procedure, applicable in federal criminal trials.10 Discovery under Rule 16, even as now amended, is restricted by a number of carefully drawn limitations, each intended to 'guard against possible abuses.' Notes of the Advisory Committee on Rules, 39 F.R.D. 176. The defendant is permitted only to obtain certain categories of materials, and he must in each case first move the court for their production. These limitations fall far short of the standard urged by my Brother FORTAS. Under his view the information obtainable by the defendant could not be restricted by its character or source; failure to disclose could be justified, post hoc, only if the information cannot be deemed 'material,' generously judged. Nor could the defendant be obliged to demand disclosure; as my Brother FORTAS' opinion emphasizes, the burden must instead be placed upon the prosecutor, on threat of subsequent reversal of any conviction, spontaneously to proffer all that might prove 'helpful' to the defense. The effect which the rule urged here would thus have on this federal and similar state discovery rules would be entirely unlike that of Mooney and the cases which stem from it. Mooney simply imposes sanctions upon specified forms of prosecutorial misconduct; Mr. Justice FORTAS' rule would in contrast create wide constitutional obligations to disclose which, whether operative before or during trial, would entirely swallow the more narrow discovery rules which now prevail even in federal criminal trials.
204
Issues of the obligatory disclosure of information ultimately raise fundamental questions of the proper nature and characteristics of the criminal trial. These questions surely are entirely too important for this Court to implant in our laws by constitutional decree answers which, without full study, might appear warranted in a particular case. There are few areas which call more for prudent experimentation and continuing study. I can find nothing either in the Constitution or in this case which would compel, or justify, the imposition upon the States of the very broad disclosure rule now proposed.
IV.
205
The unarticulated basis of today's disposition, and of the disparate reasons which accompany it, is quite evidently nothing more than the Court's uneasiness with these convictions, engendered by post-trial indications of the promiscuity of this unfortunate girl. Unable to discover a constitutional infirmity and unwilling to affirm the convictions, the Court simply returns the case to the Maryland Court of Appeals, in hopes that, despite the plurality's repeated disclaimers, that court will share the Court's discomfort and discover a formula under which these convictions can be reversed. The Court is unable even to agree upon a state law basis with which to explain its remand. I cannot join such a disposition. We on this bench are not free to disturb a state conviction simply for reasons that might be permissible were we sitting on the state court of last resort. Nor are we free to interject our individual sympathies into the administration of state criminal justice. We are instead constrained to remain within the perimeter drawn for this Court by the Constitution.
206
I cannot find a tenable constitutional ground on which these convictions could be disturbed, and would therefore affirm the judgment of the Court of Appeals of Maryland.
1
Petitioners had previously appealed unsuccessfully from the convictions, Giles v. State, 229 Md. 370, 183 A.2d 359, appeal dismissed, 372 U.S. 767, and from the denial of a new trial, Giles v. State, 231 Md. 387, 190 A.2d 627.
2
Johnson was tried and convicted of rape of the girl at a separate trial in the Circuit Court for Anne Arundel County. His application for post-conviction relief is being held in abeyance pending disposition of this case.
3
'With respect to the presence or absence of the element of consent, it is true, of course, that however reluctantly given, consent to the act at any time prior to penetration deprives the subsequent intercourse of its criminal character.' Hazel v. State, 221 Md. 464, 469, 157 A.2d 922, 925.
4
If the jury which finds an accused guilty of rape adds to its verdict the words 'without capital punishment,' the court may not impose the death penalty but only imprisonment for not exceeding 20 years in the penitentiary. Md.Ann.Code Art. 27, § 463 (1957). If the jury does not add such words to its verdict, the court, at its discretion, may impose the death sentence, a life sentence, or a sentence in the penitentiary for not less than 18 months nor more than 21 years. Md.Ann.Code Art. 27, § 461 (1957). The jury did not add to its verdict the words 'without capital punishment,' and the trial judge imposed death sentences. Governor Tawes subsequently commuted the sentences to life imprisonment.
5
Other counsel are representing them in the post-conviction proceedings.
6
The dissenting judges in the Court of Appeals were of the view that the extensive evidence of the girl's reputation for unchastity presented in the post-conviction record, added to the evidence of her emotional instability, might support a defense that she suffered from an uncontrollable weakness that petitioners might reasonably have mistaken for consent. The majority apparently were also of the view that under some circumstances suppression of evidence pertaining to a witness' mental condition might amount to a deprivation of due process. If this is so, the conclusion of the majority that no such evidence existed or was suppressed in this case is open to question, since the post-conviction court prevented all attempts of counsel to introduce evidence of the girl's condition (including a psychiatric diagnosis and evidence presented at a juvenile proceeding) or of the fact that Montgomery County police officials knew of such evidence. If a new hearing is held in the state courts, an inquiry into these matters might be deemed appropriate.
7
The record before us affirmatively demonstrates that both Detective Collins and Mr. Kardy, who supervised the prosecution, had read the report before trial. Collins testified at the trial that he wrote up the report and had read it the night before. At the post-conviction hearing Kardy was asked: '(Y)ou saw the police report prior to trial, of course? A. Yes.'
8
The testimony was as follows:
'Q. Did you have a discussion with this girl about how many boys had had intercourse with her? * * *
'A. No.
'Q. You say you did not?
'A. No, sir.
'Q. You never did discuss that with her?
'A. No, sir.'
9
'Q. Why are you telling a different story today than the story you told the police immediately after this happened, and the story you told at the preliminary hearing?
'A. Because I have thought about it.
'Q. What do you mean you have thought about it?
'A. Well at the time I was confused—people were giving names, and I had no idea of what the boys' names were.
'Q. Who was given names?
'A. After the line-ups; after I had identified all three of the men.'
10
The report recites that she was asked the following questions, apparently by Lieutenant Whalen, and gave the following answers:
'Q—W. How many of them had intercourse with you?
'A. The bigger one (John) tried first, then the other two.
'Q—W. Did any of them have an emission?
'A. Yes, the second one and maybe the third.'
11
Certainly the test cannot be, as is suggested, that a remand would be justified only if the evidence presented 'necessarily excludes the conclusion that John Giles achieved penetration, however slight.'
12
See Hunt v. Warden, 335 F.2d 936, 941—943 (C.A.4th Cir., 1964); Midgett v. Warden, 329 F.2d 185 (C.A.4th Cir., 1964), and the other cases discussed in Note, 40 N.Y.U.L.Rev. 154, 193—195 (1965).
1
The fact that petitioners' counsel at trial had knowledge of the police reports is of course relevant. At the post-conviction hearing the trial counsel, Mr. Prescott, was questioned concerning his knowledge of the police reports.
'Q. Mr. Prescott, after your appointment as counsel for the Giles boys in this case, did you come to see me, as State's Attorney, to discuss the case?
'A. I did.
'Q. And would you relate to His Honor what that discussion consisted of and what, if anything, I let you see and have in the case?
'A. You let me have your entire file as I recall. * * *
'Q. And by the entire file, did I let you read the police report in its entirety, sir?
'A. You did.
'The Court: Mr. Prescott, I understood you to say that Mr. Kardy, while you were preparing for the trial and before trial, let you see his complete file, including the police reports?
'The Witness: That is correct, Your Honor.
'The Court: And you are satisfied that Mr. Kardy did show you the police reports, which he didn't have to do?
'The Witness: Well, I am not sure he didn't have to, but he did show them to me, Your Honor.' Transcript of Post-Conviction Hearing, Vol. II, 11, 13.
2
The deposition was conducted by the same judge who presided at the post-conviction hearing.
3
In the course of the post-conviction hearing, the defendants also attempted to probe the relationship between the mental condition of the complaining witness and her credibility through questions put to Dr. Frederic Solomon, a qualified psychiatrist.
'Q. Doctor, do you have an opinion about how the mental illness, which you have described, would affect the credibility of a witness about the kind of circumstances which I described, that is, an intensely personal situation in which personal motivations were involved?
'Mr. Kardy: Object.
'The Court: You can answer it merely yes or no.
'The Witness: Yes.
'Mr. Witt: What is that opinion?
'Mr. Kardy: Object.
'The Court: Sustained.
'Mr. Witt: Your Honor, I offer to prove that his opinion would be that the mental illness which he has described would substantially affect the credibility of such a person about such an incident.
'The Court: Well, I never heard of such a rule. I sustained the objection. It's up to a jury to determine the credibility. How can we take and let a man, after a trial has occurred, come in and say the credibility was no good?' Transcript of Post-Conviction Hearing, Vol. II, 64.
4
This deposition proceeding was also conducted by the same judge who presided at the post-conviction hearing.
5
This document is included in the record at page 274.
1
In Griffin v. United States, 336 U.S. 704, 707—709, 69 S.Ct. 814, 815—816, 93 L.Ed. 993 (1949), this Court remanded a case for reconsideration of a ruling that certain evidence withheld by the prosecution was inadmissible. On remand, a new rule of admissibility was formulated and a new trial ordered. Griffin v. United States, 87 U.S.App.D.C. 172, 183 F.2d 990 (1950).
2
Alcorta v. State of Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957); Napue v. People of State of Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935).
3
373 U.S., at 87 83 S.Ct., at 1196.
1
'Consent' is of course the conventional defense in rape cases. In light of the forcible entry into the car occupied by the victim, the assault upon her companion, and her flight into the woods, it would have been extraordinary for the jury to have believed that this girl freely invited these youths to have sexual relations with her, still more that the petitioner John Giles, who was the first to pursue her into the woods (albeit allegedly not knowing that he was pursuing a female), refused the 'invitation.'
2
Counsel so stated three times at the post-conviction proceeding, twice under the judge's questioning. This colloquy has been reprinted in my Brother WHITE'S opinion, ante, p. 82.
3
We do not have before us the transcript of the preliminary hearing. An uncontested account of Joyce's testimony was however given at the post-conviction proceeding. See Transcript of Record 270—272.
4
Counsel made an extended effort to discredit Joyce's testimony based on the alleged inconsistencies in her various accounts. See Transcript of Record 62—64.
5
It is important to note that the supplementary report does not, contrary to the apparent suggestion in the plurality opinion, state that John Giles 'failed to 'insert."
6
Joyce did not simply suggest that she had been confused about the names of her assailants. Under defense counsel's persisttent cross-examination she repeatedly affirmed that she was telling the full truth, and that she did not know 'what I thought' at the time of her earlier accounts. Given her age and circumstances, this is scarcely improbable.
7
Montgomery County Officers' Report 1. The report indicates that Joyce said 'two of the * * * males had entered her and * * * the third had tried but gave up when he saw lights coming.' In the context of the other evidence the third man could only have been James Giles.
8
The plurality's diversionary suggestion that Sergeant Duvall's testimony presents difficulties is wholly unpersuasive. His inexplicable failure to describe Joyce's statements to him served only to weaken the State's case, and certainly did not in any fashion prejudice petitioners. It offers no basis on which they would be entitled to relief.
9
I cannot agree that this Court in Brady extended Mooney in any fashion. The language in Brady upon which my Brother FORTAS relies was quite plainly, 'wholly advisory.' Brady v. Maryland, supra, 373 U.S. at 92, 83 S.Ct. at 1199 (separate opinion of WHITE, J.).
10
In substance, Rule 16 provides that upon the motion of a defendant a court may permit the defendant to inspect and copy 'statements or confessions made by the defendant,' the results of physical or mental examinations and of 'scientific tests or experiments,' and the defendant's testimony before a grand jury. Further, the court may, upon a defendant's motion and upon a showing of materiality and reasonableness, permit the defendant to inspect and copy or photograph 'books, papers, documents, tangible objects, buildings or places, or copies or portions thereof * * *.' The Rule expressly does not authorize the discovery or inspection of 'internal government documents made by government agents' in connection with the case, or of statements 'made by government witnesses or prospective government witnesses * * * to agents of the government * * *.' Other portions of Rule 16 permit a court to make such disclosures conditional upon disclosures by the defendant to the Government, to prescribe the time, place, and manner of discovery, and to make suitable protective orders. Finally, the Rule creates a continuing duty to disclose additional similar materials obtained after compliance with an order issued under the Rule, and permits the imposition of sanctions for failure to satisfy that duty.
| 01
|
386 U.S. 58
87 S.Ct. 788
17 L.Ed.2d 730
Joe Nathan COOPER, Petitioner,v.STATE OF CALIFORNIA.
No. 103.
Argued Dec. 8, 1966.
Decided Feb. 20, 1967.
Michael Traynor, San Francisco, Cal., Jared G. Carter, Anthony C. Gilbert, Donald H. Maffly, Preble Stolz, San Francisco, Cal., of counsel, for petitioner.
Albert W. Harris, Jr., San Francisco, Cal., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
Petitioner was convicted in a California state court of selling heroin to a police informer. The conviction rested a part on the introduction in evidence of a small piece of a brown paper sack seized by police without a warrant from the glove compartment of an automobile which police, upon petitioner's arrest, had impounded and were holding in a garage. The search occurred a week after the arrest of petitioner. Petitioner appealed his conviction to the California District Court of Appeal which, considering itself bound by our holding and opinion in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, held that the search and seizure violated the Fourth Amendment's ban of unreasonable searches and seizures. That court went on, however, to determine that this was harmless error under Art. VI, § 4 1/2, of California's Constitution which provides that judgments should not be set aside or reversed unless the court is of the opinion that the error 'resulted in a miscarriage of justice.' 234 Cal.App.2d 587, 44 Cal.Rptr. 483. The California Supreme Court declined to hear the case. We granted certiorari along with Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, to consider whether the California harmless-error constitutional provision could be used in this way to ignore the alleged federal constitutional error. 384 U.S. 904, 86 S.Ct. 1348, 16 L.Ed.2d 357. We have today passed upon the question in Chapman, but do not reach it in this case because we are satisfied that the lower court erroneously decided that our Preston case required that this search be held an unreasonable one within the meaning of the Fourth Amendment.
2
We made it clear in Preston that whether a search and seizure is unreasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case and pointed out, in particular, that searches of cars that are constantly movable may make the search of a car without a warrant a reasonable one although the result might be the opposite in a search of a home, a store, or other fixed piece of property. 376 U.S., at 366—367, 84 S.Ct., at 882—883. In Preston the search was sought to be justified primarily on the ground that it was incidental to and part of a lawful arrest. There we said that '(o)nce an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.' Id., at 367, 84 S.Ct. at 883. In the Preston case, it was alternatively argued that the warrantless search, after the arrest was over and while Preston's car was being held for him by the police, was justified because the officers had probable cause to believe the car was stolen. But the police arrested Preston for vagrancy, not theft, and no claim was made that the police had authority to hold his car on that charge. The search was therefore to be treated as though his car was in his own or his agent's possession, safe from intrusions by the police or anyone else. The situation involving petitioner's car is quite different.
3
Here, California's Attorney General concedes that the search was not incident to an arrest. It is argued, however, that the search was reasonable on other grounds. Section 11611 of the California Health & Safety Code provides that any officer making an arrest for a narcotics violation shall seize and deliver to the State Division of Narcotic Enforcement any vehicle used to store, conceal, transport, sell or facilitate the possession of narcotics, such vehicle 'to be held as evidence until a forfeiture has been declared or a release ordered.'1 (Emphasis supplied.) Petitioner's vehicle, which evidence showed had been used to carry on his narcotics possession and transportation, was impounded by the officers and their duty required that it be kept 'as evidence' until forfeiture proceedings were carried to a conclusion. The lower court concluded, as a matter of state law, that the state forfeiture statute did not by 'clear and express language' authorize the officers to search petitioner's car. 234 Cal.App.2d, at 598, 44 Cal.Rptr., at 491. But the question here is not whether the search was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment. Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one. While it is true, as the lower court said, that 'lawful custody of an automobile does not of itself dispense with constitutional requirements of searches thereafter made of it', ibid., the reason for and nature of the custody may constitutionally justify the search. Preston was arrested for vagrancy. An arresting officer took his car to the station rather than just leaving it on the street. It was not suggested that this was done other than for Preston's convenience or that the police had any right to impound the car and keep it from Preston or whomever he might send for it. The fact that the police had custody of Preston's car was totally unrelated to the vagrancy charge for which they arrested him. So was their subsequent search of the car. This case is not Preston, nor is it controlled by it. Here the officers seized petitioner's car because they were required to do so by state law. They seized it because of the crime for which they arrested petitioner. They seized it to impound it and they had to keep it until forfeiture proceedings were concluded. Their subsequent search of the car whether the State had 'legal title' to it or not—was closely related to the reason petitioner was arrested, the reason his car had been impounded, and the reason it was being retained. The forfeiture of petitioner's car did not take place until over four months after it was lawfully seized. It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it. It is no answer to say that the police could have obtained a search warrant, for '(t)he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.' United States v. Rabinowitz, 339 U.S. 56, 66, 70 S.Ct. 430, 435, 94 L.Ed. 653. Under the circumstances of this case, we cannot hold unreasonable under the Fourth Amendment the examination or search of a car validly held by officers for use as evidence in a forfeiture proceeding.
4
Our holding, of course, does not affect the State's power to impose higher standards on searches and seizures than required by the Federal Constitution if it chooses to do so. And when such state standards alone have been violated, the State is free, without review by us, to apply its own state harmless-error rule to such errors of state law. There being no federal constitutional error here, there is no need for us to determine whether the lower court properly applied its state harmless-error rule.2
5
Affirmed.
6
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE, Mr. Justice BRENNAN and Mr. Justice FORTAS concur, dissenting.
7
When petitioner was arrested, his auto was seized by officers, pursuant to the California Health & Safety Code, § 11611. That section authorizes a state officer making an arrest for violation of the narcotics laws to seize a 'vehicle used to unlawfully transport any narcotic or to facilitate the unlawful transportation of any narcotic, or in which any narcotic is unlawfully kept,' and directs the officer to deliver the vehicle to the Division of Narcotic Enforcement 'to be held as evidence until a forfeiture has been declared or a release ordered.' About a week after petitioner's arrest, a state agent searched the car, which was stored at a towing service, and discovered a piece of brown paper which appeared to have been torn from a grocery bag. This piece of paper was introduced at the trial, along with two bundles of heroin, which petitioner allegedly sold an informer, and the brown paper in which the heroin had been wrapped.1 Petitioner was indicted and convicted of selling heroin. A judgment of forfeiture of petitioner's car was entered the day after the termination of his trial.
8
The California District Court of Appeal held that the piece of paper bag was the product of an illegal search, 234 Cal.App.2d 587, 44 Cal.Rptr. 483. First, the state court held that the State could not rely on the subsequent forfeiture to justify the search. It realistically noted that the State's title could not relate back to the time of the seizure until after a judicial declaration of forfeiture. Since the forfeiture judgment was not entered until after petitioner's trial, the State could not rely on it to justify the search. Id., at 596—597, 44 Cal.Rptr., at 489—490. Second, the court held that although the automobile was in the lawful custody of the officers at the time of the search, § 11611 of the Health & Safety Code did not authorize the officers to search the car. Id., at 597, 44 Cal.Rptr., at 490. Since the search was not pursuant to a warrant, and since it was not incidental to petitioner's arrest, it was illegal.
9
Hence the fact that the car was being held 'as evidence' did not as a matter of state law give the officers more dominion over it than the officers in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, had over the car in their custody.
10
In Preston, petitioner and others were arrested for vagrancy after they failed to give an acceptable explanation of their presence in a parked car late at night. They were taken to the police station, and the car was taken first to the station and then to a garage. After the men were booked, police officers went to the garage, searched the car without a warrant, and found evidence incriminating petitioner and the others of conspiracy to rob a federally insured bank.
11
In the instant case petitioner was arrested, his car taken to a garage and searched a week after his arrest, likewise without a warrant. As in Preston, the search cannot be justified as incidental to a lawful arrest. Nor can this case be distinguished from Preston on the ground that one car was lawfully in police custody and the other not. In Preston, the fact that the car was in lawful police custody did not legalize the search without a warrant. Since the California could held that the Health & Safety Code did not authorize a search of a car impounded under its provisions, the case is on all fours with Preston so far as police custody is concerned. If custody of the car is relevant at all, it militates against the reasonableness of the search. As the Court said in Preston: '(S)ince the men were under arrest at the police station and the car was in police custody at a garage, (there was no) danger that the car would be moved out of the locality or jurisdiction.' 376 U.S., at 368, 84 S.Ct., at 884. Moreover, the claim that the search was not illegal because the car had been forfeited to the State is foreclosed by the state court's holding that, under the circumstances, the forfeiture could not relate back to the date of the seizure. The state court's interpretation of its own statute will not be upset by this Court. Guaranty Trust Co. of N.Y. v. Blodgett, 287 U.S. 509, 53 S.Ct. 244, 77 L.Ed. 463.
12
To repeat, this case is on all fours with Preston. For in each the search was of a car 'validly' held by officers, to use the Court's expression. Preston, of course, was a federal case, while this is a state case. But the Fourth Amendment with all its sanctions applies to the States as well as to the Federal Government. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.
13
I see only two ways to explain the Court's opinion. One is that it overrules Preston sub silentio. There are those who do not like Preston. I think, however, it states a healthy rule, protecting the zone of privacy of the individual as prescribed by the Fourth Amendment. These days police often taken possession of cars, towing them away whem improperly parked. Those cars are 'validly' held by the police. Yet if they can be searched without a warrant, the precincts of the individual are invaded and the barriers to privacy breached. Unless the search is incident to an arrest, I would insist that the police obtain a warrant to search a man's car just as they must do when they search his home.
14
If the present decision does not overrule Preston, it can perhaps be rationalized on one other ground. There is the view that when the Bill of Rights is applied to the States by reason of the Fourteenth Amendment, a watered-down version is used. In that view 'due process' qualifies all provisions of the Bill of Rights. Today's decision is perhaps explicable in those terms. But I also reject that view. 'Unreasonable searches and seizures' as used in the Fourth Amendment, 'self-incrimination' as used with reference to the Fifth, 'freedom of speech' as used in the First, and the like, mean the same in a state as in a federal case.2
1
Cal. Health & Safety Code § 11610 provides:
'The interest of any registered owner of a vehicle used to unlawfully transport or facilitate the unlawful transportation of any narcotic, or in which any narcotic is unlawfully kept, deposited, or concealed or which is used to facilitate the unlawful keeping, depositing or concealment of any narcotic, or in which any narcotic is unlawfully possessed by an occupant thereof or which is used to facilitate the unlawful possession of any narcotic by an occupant thereof, shall be forfeited to the State.'
2
Petitioner also presents the contention here that he was unconstitutionally deprived of the right to confront a witness against him, because the State did not produce the informant to testify against him. This contention we consider absolutely devoid of merit.
1
About four months after the arrest, another agent searched the car and found a marijuana seed, which was introduced at trial. There is no objection to this evidence since there was no jury and the trial judge indicated that the marijuana seed was irrelevant to the charge for which petitioner was being tried.
2
That view was expressly approved by the Court in Malloy v. Hogan, 378 U.S. 1, 10—11, 84 S.Ct. 1489, 1494—1495, 12 L.Ed.2d 653.
| 01
|
386 U.S. 120
87 S.Ct. 820
17 L.Ed.2d 771
KILGARLIN et al.v.HILL et al.
No. 235.
Decided Feb. 20, 1967.
Rehearing Denied April 10, 1967.
See 386 U.S. 999, 87 S.Ct. 1300.
William E. Wright, for appellants.
Waggoner Carr, Atty. Gen. of Texas, Hawthorne Phillips, First Asst. Atty. Gen., and Mary K. Wall, Asst. Atty. Gen., for appellees.
PER CURIAM.
1
Following judicial invalidation of the constitutional and statutory provisions governing the apportionment of the Texas State Legislature, the State Legislature reapportioned both the House and the Senate. Appellants promptly challenged on various grounds the constitutionality of H.B. 1951 which reapportioned the House of Representatives in a combination of single-member, multimember and floterial districts. The District Court sustained all aspects of the plan except those provisions respecting the counties included in 11 floterial districts, 252 F.Supp. 404, which were found violative of the equality principles announced in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506. The court did, however, over appellants' objections, permit the 1966 election to proceed under H.B. 195 with a proviso to the effect that if the legislature did not adopt corrective legislation by August 1, 1967, the counties in the floterial districts would be reconstituted as multimember districts and all the representatives assigned to those counties would be elected at large.
2
We affirm the District Court's action in permitting the 1966 election to proceed under H.B. 195 although constitutionally infirm in certain respects. In the particular circumstances of this case there is ample precedent for the court's action. See Drum v. Seawell, 383 U.S. 831, 86 S.Ct. 1237, 16 L.Ed.2d 298; Toombs v. Fortson, 384 U.S. 210, 86 S.Ct. 1464, 16 L.Ed.2d 482. We also affirm the court's judgment insofar as it held that appellants had not proved their allegations that H.B. 195 was a racial or political gerrymander violating the Fourteenth Amendment, that it unconstitutionally deprived Negroes of their franchise and that because of its utilization of single-member, multi-member and floterial districts it was an unconstitutional 'crazy quilt.'
3
In another respect, however, the District Court committed reversible error. Appellants alleged that in addition to the inequalities inherent in the floterial districts, H.B. 195 also infringed Fourteenth Amendment rights because in the remaining legislative districts of the State there were unacceptable variations from the principle of Reynolds v. Sims that among legislative districts the population per representative should be substantially equal. Appellants' proof showed that in these other districts the population per representative varies from 54,385 to 71,301, or from 14.84% overrepresented to 11.64% underrepresented. The ratio between the largest and the smallest district is thus 1.31 to 1. The deviation from the average population per representative is greater than 10% in 12 single-member districts, and a total of 55 representatives would be elected from eight multi-member districts in which the population per representative varies from the ideal by more than 6%.
4
The District Court sustained the constitutionality of H.B. 195 on two grounds. First, it held that appellants had the burden not only of demonstrating the degree of variance from the equality principle but also of 'negat(ing) the existence of any state of facts which would sustain the constitutionality of the legislation.' 252 F.Supp. 404, 414. This, the court held, appellants had not done. At that time, of course, Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501, had not been announced. Under that case it is quite clear that unless satisfactorily justified by the court or by the evidence of record, population variances of the size and significance evident here are sufficient to invalidate an apportionment plan. Without such justification, appellants' analysis of H.B. 195 made out a sufficient case under the Fourteenth Amendment.
5
Second, the District Court, not resting exclusively on its burden of proof ruling, found that the deviations from the equal population principle were amply justified here because they resulted from a bona fide attempt to conform to the state policy requiring legislative apportionment plans to respect county boundaries wherever possible. We are doubtful, however, that the deviations evident here are the kind of 'minor' variations which Reynolds v. Sims indicated might be justified by local policies counseling the maintenance of established political subdivisions in apportionment plans. 377 U.S. 533, 578—579, 84 S.Ct. 1362, 1390—1391. But we need not reach that constitutional question, for we are not convinced that the announced policy of the State of Texas necessitated the range of deviations between legislative districts which is evident here. In the first place, Texas policy, as elaborated by the Attorney General and concurred in by the District Court,2 permits the formation of multimember and floterial districts and even, where necessary, the violation of county lines in order to surmount undue population variations. In the second place, the District Court did not relate its declared justification to any specific inequalities among the districts, nor demonstrate why or how respect for the integrity of county lines required the particular deviations called for by H.B. 195. Nor did the District Court articulate any satisfactory grounds for rejecting at least two other plans presented to the court, which respected county lines but which produced substantially smaller deviations from the principles of Reynolds v. Sims. Similar fault can be found in accepting a general county-line justification for the population deviations that would occur should the present floterial districts be reconstituted as multi-member districts. The ratio between the largest reconstituted district and the smallest district created by H.B. 195 would be 1.21 to 1, and seven representatives would be elected from districts overrepresented by 13% or more. Another five representatives would be elected from districts overrepresented by 8% or more.
6
Appellants also raise specific challenges to the provisions of H.B. 195 with respect to Dallas, Bexar, and Harris Counties. Dallas and Bexar Counties are relatively densely populated multi-member districts. Measured by population alone, each county could support one more representative than is allocated to it under H.B. 195, and thus more nearly approximate the arithmetic ideal. Giving each of them one more representative would not, of course, violate their county lines; and we cannot be sure, at least on this record and in view of the 150-member limit on the House of Representatives, that Dallas and Bexar Counties must be denied additional representation in order to adhere to county lines in other districts throughout the State. If other districts cannot be reformed within county lines in such a way as to afford Dallas and Bexar Counties another representative and at the same time to afford the re-formed districts constitutional representation, we would have to meet the question whether the state policy advanced here justifies the seeming3 underrepresentation in Dallas and Bexar Counties, which is 6.42% and 7.59% respectively. But on the record that is now before us we do not reach this issue and believe that the District Court should give further consideration to these counties.
7
Appellants complain that district 24 in Harris County is assigned only six representatives whereas district 22 in the same county with a slightly smaller population is assigned seven representatives. The court found the record to establish that the population in district 22 was growing rapidly as compared with district 24 and would soon justify the extra representative. This factual determination not being challenged here, we accept the ruling of the District Court regarding these districts.
8
The judgment is reversed in part and the case remanded for further proceedings consistent with this opinion.
9
It is so ordered.
10
Judgment reversed and case remanded.
11
Mr. Justice DOUGLAS, concurring.
12
While I join the opinion of the Court, I reserve decision on one aspect of the problem concerning multi-member districts.
13
Under the present regime each voter in the district has one vote for each office to be filled. This allows the majority to defeat the minority on all fronts. It is suggested that in multi-member districts each person be able to vote for only one legislator, the theory being that in that way a minority, either political or otherwise, would have a chance to elect at least one representative.
14
I am not sure in my own mind how this problem should be resolved. But in view of the fact that appellants claim that multi-member districts of Texas are constructed in such a manner that Negroes are effectively disenfranchised, I would reserve that question for consideration when the case is once again before the District Court.
15
Mr. Justice CLARK would affirm the judgment of the District Court.
16
Mr. Justice HARLAN and Mr. Justice STEWART would affirm the judgment of the District Court in its entirety, on the basis of the reasoning contained in Mr. Justice HARLAN's dissenting opinion in Swann v. Adams, 385 U.S. 440, 447, 87 S.Ct. 569, 574, 17 L.Ed.2d 501.
1
Vernon's Ann.Tex.Rev.Civ.Stat. Art. 195a contains House Bill 195. The Senate reapportionment of 1965, Tex.Rev.Civ.Stat.Ann. Art. 193a, is not here in issue.
2
The Attorney General expressed the state policy in a letter to the Speaker of the House, included as Appendix 'D' in the opinion below, 252 F.Supp. 404, 455—456.
May 19, 1965
Honorable Ben Barnes
Speaker of the House
Austin, Texas
Dear Mr. Speaker:
As a result of the analyzing and briefing of Section 26, Article III of the Texas Constitution of 1876 (Vernon's Ann.St.) and the recent decisions of the U.S. Supreme Court on the subject of state reapportionment, this office has reached the following legal conclusions.
1. Whenever a single county has sufficient population to be entitled to more than one representative, all the representatives to which it is entitled shall be apportioned to that county.
2. Multi-representative counties may be apportioned so that the representatives can run at-large within the county or from individual districts within the county or, a combination of any of these methods.
3. If a single county does not have sufficient population to entitle it to one representative, such county shall be joined with one or more contiguous counties until the proper population ratio is achieved. The above cited provision of the Texas Constitution requires that counties be kept intact and their boundaries not be violated.
4. Should the keeping of counties intact result in a violation of the Supreme Court 'one man, one vote' rule, then the county lines must be violated but only to the extent necessary to carry out the mandate of the Supreme Court. In all other instances, county lines must remain intact and multi-county districts or flotorial districts be formed by the joining of complete and contiguous counties.
The above legal conclusions have been set out as clearly and concisely as possible. These conclusions have been reached by a thorough analysis of the Texas constitutional provisions as well as recent federal court decisions. Our research has also thoroughly developed the legislative history and legislative interpretation of the legislative sessions immediately prior to and immediately subsequent to the adoption of the constitutional provisions involved.
Yours very truly,
s/Waggoner Carr
3
Our cases do not foreclose attempts to show that in the particular circumstances of a given case multi-member districts are invidiously discriminatory. See Burns v. Richardson, 384 U.S. 73, 88—89, 86 S.Ct. 1286, 16 L.Ed.2d 376. It has recently been suggested that multi-member districts such as Dallas and Bexar are adequately represented, if not overrepresented. See Banzhaf, Multi-member Electoral Districts—Do They Violate the 'One Man, One Vote' Principle, 75 Yale L.J. 1309 (1966).
| 12
|
386 U.S. 18
87 S.Ct. 824
17 L.Ed.2d 705
Ruth Elizabeth CHAPMAN and Thomas LeRoy Teale, Petitioners,v.STATE OF CALIFORNIA.
No. 95.
Argued Dec. 7 and 8, 1966.
Decided Feb. 20, 1967.
Rehearing Denied March 27, 1967.
See 386 U.S. 987, 87 S.Ct. 1283.
Morris Lavine, Los Angeles, Cal., for petitioners.
Arlo E. Smith, San Francisco, Cal., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
Petitioners, Ruth Elizabeth Chapman and Thomas LeRoy Teale, were convicted in a California state court upon a charge that they robbed, kidnaped, and murdered a bartender. She was sentenced to life imprisonment and he to death. At the time of the trial, Art I, § 13, of the State's Constitution provided that 'in any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by the court and by counsel, and may be considered by the court or the jury.' Both petitioners in this case chose not to testify at their trial, and the State's attorney prosecuting them took full advantage of his right under the State Constitution to comment upon their failure to testify, filling his argument to the jury from beginning to end with numerous references to their silence and inferences of their guilt resulting therefrom.1 The trial court also charged the jury that it could draw adverse inferences from petitioners' failure to testify.2 Shortly after the trial, but before petitioners' cases had been considered on appeal by the California Supreme Court, this Court decided Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, in which we held California's constitutional provision and practice invalid on the ground that they put a penalty on the exercise of a person's right not to be compelled to be a witness against himself, guaranteed by the Fifth Amendment to the United States Constitution and made applicable to California and the other States by the Fourteenth Amendment. See Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. On appeal, the State Supreme Court, 63 Cal.2d 178, 45 Cal.Rptr. 729, 404 P.2d 209, admitting that petitioners had been denied a federal constitutional right by the comments on their silence, nevertheless affirmed, applying the State Constitution's harmless-error provision, which forbids reversal unless 'the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.'3 We granted certiorari limited to these questions:
2
'Where there is a violation of the rule of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, (1) can the error be held to be harmless, and (2) if so, was the error harmless in this case?' Chapman v. California, 383 U.S. 956—957, 86 S.Ct. 1228, 16 L.Ed.2d 300.
3
In this Court petitioners contend that both these questions are federal ones to be decided under federal law; that under federal law we should hold that denial of a federal constitutional right, no matter how unimportant, should automatically result in reversal of a conviction, without regard to whether the error is considered harmless; and that, if wrong in this, the various comments on petitioners' silence cannot, applying a federal standard, be considered harmless here.
I.
4
Before deciding the two questions here—whether there can ever be harmless constitutional error and whether the error here was harmless—we must first decide whether state or federal law governs. The application of a state harmless-error rule is, of course, a state question where it involves only errors of state procedure or state law. But the error from which these petitioners suffered was a denial of rights guaranteed against invasion by the Fifth and Fourteenth Amendments, rights rooted in the Bill of Rights, offered and championed in the Congress by James Madison, who told the Congress that the 'independent' federal courts would be the 'guardians of those rights.'4 Whether a conviction for crime should stand when a State has failed to accord federal constitutionally guaranteed rights is every bit as much of a federal question as what particular federal constitutional provisions themselves mean, what they guarantee, and whether they have been denied. With faithfulness to the constitutional union of the States, we cannot leave to the States the formulation of the authoritative laws, rules, and remedies designed to protect people from infractions by the States of federally guaranteed rights. We have no hesitation in saying that the right of these petitioners not to be punished for exercising their Fifth and Fourteenth Amendment right to be silent—expressly created by the Federal Constitution itself—is a federal right which, in the absence of appropriate congressional action, it is our responsibility to protect by fashioning the necessary rule.
II.
5
We are urged by petitioners to hold that all federal constitutional errors, regardless of the facts and circumstances, must always be deemed harmful. Such a holding, as petitioners correctly point out, would require an automatic reversal of their convictions and make further discussion unnecessary. We decline to adopt any such rule. All 50 States have harmless-error statutes or rules, and the United States long ago through its Congress established for its courts the rule that judgments shall not be reversed for 'errors or defects which do not affect the substantial rights of the parties.' 28 U.S.C. § 2111.5 None of these rules on its face distinguishes between federal constitutional errors and errors of state law or federal statutes and rules. All of these rules, state or federal, serve a very useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial. We conclude that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.
III.
6
In fashioning a harmless-constitutional-error rule, we must recognize that harmless-error rules can work very unfair and mischievous results when, for example, highly important and persuasive evidence, or argument, though legally forbidden, finds its way into a trial in which the question of guilt or innocence is a close one. What harmless-error rules all aim at is a rule that will save the good in harmless-error practices while avoiding the bad, so far as possible.
7
The federal rule emphasizes 'substantial rights' as do most others. The California constitutional rule emphasizes 'a miscarriage of justice,'6 but the California courts have neutralized this to some extent by emphasis, and perhaps overemphasis, upon the court's view of 'overwhelming evidence.'7 We prefer the approach of this Court in deciding what was harmless error in our recent case of Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171. There we said: 'The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.' Id., at 86—87, 84 S.Ct. at 230. Although our prior cases have indicated that there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error,8 this statement in Fahy itself belies any belief that all trial errors which violate the Constitution automatically call for reversal. At the same time, however, like the federal harmless-error statute, it emphasizes an intention not to treat as harmless those constitutional errors that 'affect substantial rights' of a party. An error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot, under Fahy, be conceived of as harmless. Certainly error, constitutional error, in illegally admitting highly prejudicial evidence or comments, casts on someone other than the person prejudiced by it a burden to show that it was harmless. It is for that reason that the original common-law harmless-error rule put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment.9 There is little, if any, difference between our statement in Fahy v. State of Connecticut about 'whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction' and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. We, therefore, do no more than adhere to the meaning of our Fahy case when we hold, as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. While appellate courts do not ordinarily have the original task of applying such a test,10 it is a familiar standard to all courts, and we believe its adoption will provide a more workable standard, although achieving the same result as that aimed at in our Fahy, case.
IV.
8
Applying the foregoing standard, we have no doubt that the error in these cases was not harmless to petitioners. To reach this conclusion one need only glance at the prosecutorial comments compiled from the record by petitioners' counsel and (with minor omissions) set forth in the Appendix. The California Supreme Court fairly summarized the extent of these comments as follows:
9
'Such comments went to the motives for the procurement and handling of guns purchased by Mrs. Chapman, funds or the lack thereof in Mr. Teale's possession immediately prior to the killing, the amount of intoxicating liquors consumed by defendants at the Spot Club and other taverns, the circumstances of the shooting in the automobile and the removal of the victim's body therefrom, who fired the fatal shots, why defendants used a false registration at a motel shortly after the killing, the meaning of a letter written by Mrs. Chapman several days after the killing, why Teale had a loaded weapon in his possession when apprehended, the meaning of statements made by Teale after his apprehension, why certain clothing and articles of personal property were shipped by defendants to Missouri, what clothing Mrs. Chapman wore at the time of the killing, conflicting statements as to Mrs. Chapman's whereabouts immediately preceding the killing and, generally, the overall commission of the crime.' 63 Cal.2d, at 196, 45 Cal.Rptr., at 740, 404 P.2d, at 220.
10
Thus, the state prosecutor's argument and the trial judge's instruction to the jury continuously and repeatedly impressed the jury that from the failure of petitioners to testify, to all intents and purposes, the inferences from the facts in evidence had to be drawn in favor of the State—in short, that by their silence petitioners had served as irrefutable witnesses against themselves. And though the case in which this occurred presented a reasonably strong 'circumstantial web of evidence' against petitioners, 63 Cal.2d, at 197, 45 Cal.Rptr., at 740, 404 P.2d, at 220, it was also a case in which, absent the constitutionally forbidden comments, honest, fair-minded jurors might very well have brought in not-guilty verdicts. Under these circumstances, it is completely impossible for us to say that the State has demonstrated, beyond a reasonable doubt, that the prosecutor's comments and the trial judge's instruction did not contribute to petitioners' convictions. Such a machine-gun repetition of a denial of constitutional rights, designed and calculated to make petitioners' version of the evidence worthless, can no more be considered harmless than the introduction against a defendant of a coerced confession. See, e.g., Payne v. State of Arkansas, 356 U.S. 560, 78 S.Ct. 844. Petitioners are entitled to a trial free from the pressure of unconstitutional inferences.
11
Reversed and remanded.
APPENDIX TO OPINION OF THE COURT.
12
Argument and Comments by the Prosecutor on the Failure of the Defendants to Take the Witness Stand
13
'Now, ladies and gentlemen, I don't know which one of these weapons was purchased first, I don't know that it particularly makes any difference, but as you know, we have had no testimony at all in that regard, in fact, I might add that the only person or persons that could give testimony in that regard would be, of course, the defendants themselves.
14
'Now, this, there's no question about what this represents, or for the record here, no question in your minds, this is not the weapon that Ruth Elizabeth Chapman purchased in Reno, Nevada, on October the 12th, 1962. I don't know where that weapon is, ladies and gentlemen, and you don't know where it is, you've heard no testimony from the stand at all, and once again, the only person or persons that could tell us about where the original .22 caliber Vestpocket is today would be one or the other of the defendants or both.
15
'This would indicate that there was no small struggle—it would indicate that the body, almost lifeless, was dragged or left in some fashion which would cause a shirt or an article of clothing to tear, one or the other. Once again, ladies and gentlemen, I don't know, I wasn't out there, you were not our there. You heard no testimony on the stand. The only individuals that could give you that information would be the defendants, either one or both of them, Thomas Leroy Teale and Ruth Elizabeth Chapman. And of course you know that you have not heard from them.
16
'Now, I will comment throughout my entire opening argument to you in reference to the fact that neither one of these defendants has seen fit to go up, raise their right hand, take that witness stand, tell you ladies and gentlemen of the jury exactly what did occur, explain to you any facts or details within their knowledge so that you would know. You would not have to—by His Honor's instructions you can draw an adverse inference to any fact within their knowledge that they couldn't testify to, and they have not subjected themselves, either one or both, to cross-examination. Now, that is—so there is no question in your mind, once again with reference to a defendant taking the stand, none—you are—you or I or anyone else is not required under our legal system in these United States and under the Constitution, you can not be made to testify against yourself or for yourself, as far as that goes.
17
'So, it is a Constitutional right, and both of these defendants have seen fit to avail themselves of that Constitutional right, but I say to you ladies and gentlemen, there are many things in this case, and I will try to point them out to you, at least some, probably not all, that these defendants are in a position to take that stand and to testify under oath and give you facts concerning. They have not seen fit to avail themselves of that opportunity.
18
'Now whether or not Mr. Teale had any other money at the time or was in the habit of concealing his money in different departments, I don't know, and ladies and gentlemen, you don't know, because you have not had any testimony from that witness stand, and the only person that could clear this up for us ladies and gentlemen is the defendant Thomas Leroy Teale. Ladies and gentlemen, he has not seen fit to tell you about that. But certainly we know that bogus checks are being written, and as I recall we know that—I don't—we may infer, if you wish to believe there is an inference which Mr. Teale could have cleared up, that that was all the money that he had, and he didn't clear it up, so you may draw an adverse inference from that, that that was all the money he had, or in fact that he—at that time he was in desperate need of funds, and you know that through some kind of a discussion between these two defendants in regard to Mr. Teale shooting dice, that this was all he had.
19
'Now, ladies and gentlemen, in reference to the weapons being purchased in Reno, Nevada on October 12th, you have heard, ladies and gentlemen, no testimony, and you will recall clearly, you are going to have some difficulty, you really are in reference to what is and what isn't evidence in this case, and believe me I have a few comments to say on that a little later on, but if you will recall as far as evidence is concerned of the truth of anything at all, you don't have any evidence on why these—why these pistols were purchased. Why did Ruth Elizabeth Chapman buy two weapons? Well, you do recall that she told on one occasion that she had had a pistol stolen from her vehicle, her automobile, when she was taking a little trip across country, you remember that testimony, and you can rely on the testimony that you actually hear, ladies and gentlemen, from the stand. She told that, and of course you can only rely that she told the gentleman that, that she had had another one stolen, and so that she needed one to replace it. But why two, ladies and gentlemen? You don't need two. If she is going to be attacked she wasn't going to use one in each hand I assume to defend herself, and there is another area, ladies and gentlemen, besides this that I mentioned to you before, that since you have no testimony from the stand, you must surmise from all facts and circumstances as to the exact reason why they were purchased, because the only one in this room that could tell you why these guns were purchased is either one or both of the defendants. Certainly the defendant Ruth Elizabeth Chapman could tell you, she could tell you under oath, she could subject herself to cross-examination, and she could tell you then and it would be evidence before you. Once again she has not chosen to do this. So any inference you may draw therefrom will be an adverse inference under the circumstances, and under the instructions of the Court. * * *
20
'So, we know, ladies and gentlemen, that they had the motive, we know that they had the means, we know that they had the opportunity. We also know that they were at that scene, ladies and gentlemen, they were with that man just a matter of minutes before he was shot in the head three times with a gun similar to People's Exhibit No. 12. Now, if they weren't there, and I think the evidence clearly shows they were, scientific evidence, that we'll talk about a little later. Once again, why don't they come up and raise their right hand and tell you about it?
21
'To me they are charged with serious crimes, ladies and gentlemen. They can come up and testify and then it will be evidence for you to consider in this case. If they had just come up and told you about this, because they were there. If they left the Spot Club and just went on their way, well, of course they didn't, the evidence clearly shows they didn't, but you may draw the adverse inference from their refusal to come before you and raise that right hand and incidentally, of course, subject themselves to cross-examination.
22
'I think it is not an unreasonable inference to infer at this time if the defendants were drinking beer earlier in the evening in Croce's, it's not unreasonable to infer they continued drinking the same thing, therefore the two glasses remaining that had been washed, but not put up were the defendants'. I don't know, it is an inference, I wasn't there, we have had no testimony whatsoever as to what they were drinking at the Spot Club, once again, neither one of the defendants have seen their way clear to come up and tell you what they were drinking if it was beer.
23
'So you can see that whichever one of these defendants shot him, and once again, ladies and gentlemen, here is an area that I don't know who shot him, and you don't know who shot him, because we have had no testimony from that witness stand to tell you who shot him, and the only two persons in this courtroom that could tell you which one of them it was that shot him are the two defendants; but once again, they have both decided that they will not get up and raise their right hand and testify in this regard and subject themselves to cross-examination, so all we know is that one of them shot him.
24
'We don't know the time here, it doesn't say. We don't have any testimony, ladies and gentlemen, in this regard, and I might say once again in reference to this last, the use of the name, T. L. Rosenthal, Mr. and Mrs., we don't know why, ladies and gentlemen, that name was used. We don't know why, ladies and gentlemen, that UZV 155—was 156 originally on here. You don't know that, and I don't because we haven't had the testimony from the witness stand on it. Now we know it is in the handwriting of Ruth Elizabeth Chapman, and there is no question about that. She wrote it. It could be evidence, ladies and gentlemen, for you. It could be evidence as to why she wrote that name, and why that five was changed to a six. We could have it. But we don't because either one or both of the defendants, neither one, have even seen fit to take the stand and to testify in that regard. Then this would be evidence that you can consider. But also ladies and gentlemen, subject to taking the oath and subject to cross-examination.
25
'We see it here in Mountain View, the Mountain View Motel, the name of Teale, but we don't have the testimony of the defendants and ladies and gentlemen they are the only ones here in this case that could get up there and tell you why they used a phony name two hours after the crime and why they didn't put the correct license down and whatever inference you draw you are permitted to draw since they do not choose to tell you an adverse interest, and I would say, ladies and gentlemen, that it is an adverse interest to the defendants. It shows a consciousness of guilt.
26
'Now, ladies and gentlemen, what is this—first of all, 'I thought I'd better let you know that Tom arrived here today and we're going south tomorrow'? Now, what does that mean? Well, I think without saying a great deal more about it that each one of you can certainly infer as to what it very readily could mean, especially if one has in fact committed a robbery and kidnapped someone from the premises and that individual has ended up dead, shot three times in the head. And further, ladies and gentlemen, the only other thing I can say about it is this, who can really tell you and who could have told you from evidence, from the witness stand, what that letter meant? Well, the only one is Ruth Elizabeth Chapman, ladies and gentlemen. If it didn't mean what you can reasonably infer that it means then I say, ladies and gentlemen, she could have come up here and testified, gotten on the witness chair. We have had many witnesses in this case, no one I would assume more interested than Ruth Elizabeth Chapman, or the co-defendant, neither one took the stand. She in no way, nor has there been any way, ladies and gentlemen, any kind of evidence that has actually been admitted for the truth of the evidence, in no way is there any evidence as to why she wrote that letter, and what she meant by 'Tom is arriving today and we're going south.' Once again, she did not choose to tell you. So, we may only infer, and this will be, of course, you will have to in your final analysis draw any inferences from that that you feel are appropriate and are proper—
27
'He was a fugitive from justice, and he knew he was a fugitive from justice, and he never—let's face it, there were four F.B.I. agents and these fellows are professional and they know what they are doing and one of them had a gun out and he never had an opportunity to use it, and none of us here will ever know from all the testimony, from the actual testimony on the stand why he had the weapon with him fully loaded, because Mr. Teale has never taken the stand in this case and testified for you. These things are things only within his knowledge, ladies and gentlemen. If there is any fact in this case of any relevancy of any importance it is within the knowledge of a defendant, and they chose not to take the stand and tell you about it, where incidentally they are under oath and can be cross-examined. You may draw an adverse inference from the fact that they do not take it. I think the inference is very clear, too, why they had this weapon here and why he never why it was fully loaded. Remember there was never an opportunity to use it. The weapon was purchased by Ruth Elizabeth Chapman. Now when he is apprehended and fleeing from the State he had it with him and it was fully loaded. Once again, I don't know where the original is here, and you know the only two that can tell us where that is.
28
'Now, you recall also that when Mr. Basham took him back in, was fingerprinting him, etc., he told him he was wanted in California and no one mentioned anything about Lodi, and he said that he would waive extradition, and he also did say he said, 'They will have a hard time proving I was there.' And Teale himself did mention Lodi. Well, I don't know what he meant by that statement. I certainly can draw my own conclusion, and you sure will draw yours as the triers of the facts and the judges of the facts, ladies and gentlemen, but once again Mr. Teale did not take the stand and testify under oath in this case, and Mr. Teale has not desired to take the stand and explain what he meant by it. He didn't have to, of course, but once again you can draw whatever inferences you may feel, and the law is clear that you may draw an adverse—where a defendant does not explain and he does not choose to take the stand and explain it to you you can draw an adverse inference.
29
'Photographs. You've seen them, ladies and gentlemen, but as you recall the doctor now is pointing, and this is the picture of the deceased, the back of his head, as to where he was shot in the back of the head, you recall the other one as to where he was shot in the side of the head, right here on the left in the general area of where the glassess would be, I think it's a most reasonable inference, ladies and gentlemen. Now, once again we have had no testimony except what would seem clearly logical from the experts, the way the body was found, where he'd been shot, what he'd been shot with, and the position of the glasses in relation to the body at the death scene, we had no other testimony. Certainly none from the defendants in this case.
30
'* * * Agent Gilmore has drawn and made some notations in reference to where that blood was located, blood found on these shoes. Now, all we know, ladies and gentlemen, as far as evidence in this case is concerned, is that these shoes belonged to Ruth Elizabeth Chapman and they were in her possession when she was apprehended in St. Joseph, Missouri, and why do I say that's all you know? That's all you may take into consideration, ladies and gentlemen, because we have no other testimony on this witness stand in relation to any of these articles of clothing that are actually admitted into evidence.
31
'You have two box lids, two of them, and you've heard the questions concerning them, they would indicate that they were sent to a Mrs. Howard Smith at 2206 Castle Avenue, St. Joseph, Missouri, and I believe it was on the 11th of October, says from Thomas Teale, 1105 Del Norte, Eureka, California, they both say essentially the same thing, 10 11, there's no year, but I think we can surely infer it was in 1962, and apparently from Reno.
32
'Now, ladies and gentlemen, there's been a lot of talk, suggestion, and whatever you want to call it, I'll call it a smoke screen, in reference to these two lids that came off, and we'll assume there was a box underneath them, I don't think there's any question about that. Where have you ever heard from that witness stand, ladies and gentlemen, what was ever in those boxes? Now, you've heard some self-serving declarations that are not admitted into evidence because they come through someone else who in some fashion gets testimony before you, but no cross-examination of the original party who is giving that kind of testimony, and you can't consider it.
33
'Thank you, Your Honor. Counsel has interjected himself into this, and he'll have every opportunity to make his own comments, and I'm sure he'll most adequately express himself when the times comes. I'm telling you, ladies and gentlemen, that the only evidence that you have is that you have two box tops. Now, he's just suggested to you, so I'll answer this ahead of time, but the evidence is clear that Mr. Sperling packed these boxes, but you will recall Mr. Sperling was not at the original scene when they were taken. Maybe it isn't unusual to infer there may have been clothes, but what I'm getting at is this is what clothing? You don't even know there was clothing in them when they were shipped. It could have been other household articles. And even if we assume it was clothing, and that's not unreasonable because basically these are the items we found and brought back with us to Lodi, we don't know which clothing she shipped at this time. Couldn't this be cleared up for us, though? It could be cleared up so easily. Ruth Elizabeth Chapman is sitting right over here, she is one of the defendants in this case and she is the one certainly if anyone, if anyone in this room, or in this state knows what was in those boxes she is the one, but once again she did not take the stand, raise her right hand, and tell you about that. She didn't take the stand at all, ladies and gentlemen, she could have come up and told us exactly what articles were sent, so you may draw any inferences from that that you wish to, as long as they are reasonable.
34
'Now, anything that—is clearly, and I'm sure you know by now and I don't have to repeat it too often, anything in this case that Mr. Teale could get up here now, he don't have to get up here, but all of the things that have been said in this trial and all of the physical evidence and the testimony, he's right here in Court and could he not get up and if there is anything to be said he has the opportunity to say it. Otherwise, you may draw the adverse inference from the fact that he doesn't get up there and tell you about it, and that, ladies and gentlemen, is his defense. Mr. Fransen said in the beginning that what happened in this case is not as the prosecution described it. That the facts will show an entirely different version. Well, I haven't heard any facts, ladies and gentlemen, that show an entirely different version.
35
'We went through a business with a—dress. We held it up, and then we pointed out the one that she's wearing now, and frankly, ladies and gentlemen, the only one in the Court room that can tell you whether or not it is the same dress is Ruth Elizabeth Chapman, because you know from the evidence no one has ever had an opportunity to examine that dress to see whether it has been dry cleaned, whether or not it was purchased—when it was purchased or the labels on it or anything else. All that has been done in this thing is to wear a blue knit dress, ladies and gentlemen, which is similar to the one that—she is fact apparently wore on that night.
36
'So. I suppose that just through the wearing of it, having it in Court, it is hoped that you will draw something from it, which I have heard no testimony on the stand, except that it looks like or is similar to it. * * *
37
'But what she told that doctor is not evidence in this case, and yet you know that repeatedly and over and over and over again Mr. Johnson in every way that he could, he would get the story again before you. Now, why? You know why. He did it because he hopes that you wouldn't forget it, although he could put it and make it evidence in this case, which it is not, and if you put Ruth Elizabeth Chapman up on that stand to testify, so it is one way of doing, ladies and gentlemen, if you are going to be taken in by it, indirectly what you can't do directly, because there is no other way that he can get that thing before you without putting her up on that stand.
38
'But she gave a story on the night of the 17th and early hours of the 18th. She was in San Francisco. Now, why pick on that date so specifically if you are not—if not to beware of that date, that you want to beware. Well, he says, 'You have given two different stories. Do you have problems with blackouts or excessive drinking', and she says 'No.' And I tell you, ladies and gentlemen, that anybody, and there is no evidence to the contrary in this case, if you don't honestly remember what occurred and you know, you are in a situation where there is a fugitive warrant and you have just been arrested and you in all honesty don't remember where you were, that is the first thing that you are going to say. You're not going to sit up and trump up excuses and make out a story which you know to be a lie about specific dates and times. And, ladies and gentlemen, there is no legal evidence before you that it is anything to the contrary, because the only one now that can come up and tell you has not seen fit to do so.
39
'* * * Mr. Johnson would have you believe that everything she said was the truth. I think there are some instances that indicate already—I have indicated some, the purpose of the guns, two different ideas there as to why they were purchased, but that is the only legal purpose for that. So it's not evidence, although Mr. Johnson again I say argued and referred to it as though it was. We have no evidence from the lips of Mrs. Chapman. Now, as Mr. Ferguson told you, it is their constitutional right, and I won't go into that again, because I think he handled it very clearly as well as the others, but that is within her right to do as she sees fit. But, you can consider it for the purposes and under the circumstances that Mr. Ferguson indicated a number of times.
40
'Originally when Dr. Winkler examined her on the 31st, I believe it was, of October, 1962, she told him that she had forgotten after the first shot was fired, after the first shot was fired. Since that time what has happened? The amnesia, or disassociative state, or disassociative reaction, which ever way you want to look at it, psychiatrically or otherwise, seems to have backed up from Dillard Road back up to the Spot Club, back up down Highway 99 south to just outside of Croce's, and by the time we get through cross-examining Dr. Sheuerman it even backed in to Croce's. A vague area. Very interesting. We could have put it on, put the statement in. It's evidence? It's not. Again, the sancitity and worthiness of evidence would have to come from her lips, hers on the stand here. Why? Here again, because witnesses would be under oath again, and I repeat, and I repeat for emphasis, they would have to be under oath subject to cross-examination before your very eyes so that you could evaluate it. Oh yes. She said this and she said that. Who said it? Who said it? Ruth Elizabeth Chapman on the stand? No. Dr. Sheuerman said that she said it. Dr. Winkler said that she said. Mr. Johnson said that she said. Well, it's an interesting thing that the only witnesses who weren't here, or weren't on the stand to be cross-examined, the only witnesses who are alive today to the perpetration of these offenses, are these two defendants. That's all. They don't have to take the stand. That's been gone over many times, but you know it would be a fine thing, very fine deed if persons who perpetrated offenses gave a story, put a story on by somebody else, have somebody else speak for you—wouldn't it? It would be a very interesting thing. You would never have the benefit of evaluating their credibility. This is what Mr. Johnson would have you believe that we should have done. Monday morning quarterbacking. And I submit to you—you know, you—you have heard much about lawyers being referred to as 'mouthpieces.' It's actually a very rare thing, really, that that type of appellation is applicable to lawyers really. But, I think you have seen a demonstration here, and I'm not saying it in rancor, not anything of it at all, because this is a demonstration where actually Ruth Elizabeth Chapman is speaking through Mr. Johnson. A 'mouthpiece.'
41
'Maybe there is another reasonable one, other than the fact that it was Adcock's blood, because all three who were in the car had type A. Maybe there is, but you haven't heard it. You haven't heard any reasonable explanation of that. So, you can draw an adverse inference that it was Billy Dean Adcock's blood. * * *
42
'Mr. Johnson said these several things which I will go over again. The evidence showed here that she bought two guns for Teale. What evidence? No witness on the stand got up there and said specifically under oath, and the only one that could do it would be Elizabeth Chapman herself. This is hearsay, what she told somebody else for the sole purpose of determining what her state of mind was at the time. It's not evidence. There's some evidence from her own lips through Dennis Mack as to the reason she bought the gun, which is different than what she said otherwise. Mr. Johnson said the evidence shows there was an argument in Fresno. Here again I would say, 'What evidence?' The next one—there are only two people there to that argument, and the only way it would be evidence, or testimony in this case, would be if either one or both of them got up there and said there was an argument. They chose not to do it. You can draw an adverse inference that that being within their knowledge, that they could explain, whether it was or not. You can draw an inference that it wasn't the type of argument that Mr. Johnson claims the evidence shows, because the evidence doesn't show that at all.
43
'So far as the motive is concerned for murder in a perpetration of a robbery, the motive was set, to gain for their own desires and lusts and so forth, to gain from it. It was a crime of gain, and perhaps another thing too, in deciding—we don't know who pulled the trigger—we may never know. The defendants haven't indicated it, except through Teale in one—Mr. Vowell's testimony, as to what Mr. Teale said, but that is not admissible against, and you shouldn't consider it against, Ruth Elizabeth Chapman, but maybe the circumstances of who pulled the trigger might have been a factor that might have been important to you. Only two people know. They didn't tell you. That is the way they want to proceed. But nonetheless, you can consider that too.
44
'So, in considering what happened here as to why this person was killed, you see you can weigh these things and decide what the motive was. You might have had some help in deciding this very difficult task from the very only two people remaining who were at the scene, but in their best judgment they didn't choose to get up and tell you about it, which you certainly can consider that fact that they did not in the light of using your reason as I have indicated here too.
45
'You know that somebody shot Billy Dean Adcock, and you know that it was either—it was one or even both of these defendants, in view of your verdict, but which one you don't know. Now, this is something that perhaps might have been of help to you in deciding what punishment to mete out, whether both should be punished equally in this case, or whether there should be some distinction between the two. It might have been helpful to know who pulled that trigger, for if it was Ruth Elizabeth Chapman you could well deduce that it was either her intoxication or emotional stress or a jealousy of Teale, or anger, and a lot of things other than the motive to destroy a witness; whereas, with respect to Mr. Teale it would seem to be a logical thing to conclude that he wanted to get rid of the only eyewitness. Differences there, you see. But you don't know. You don't know whether they did it in consort (sic). You don't know that as far as pulling the trigger. But, this is a factor which has not been brought to light, and you can consider that factor which has not been, from the standpoint there have been two people that might have explained that.
46
'I have gone into the statement here and why it hasn't been presented. If you are going to decide things such as character and sympathy, the law says you may take into consideration, how can you do it by a statement? Now, we are talking about this phase of the case. This now. You like to know that persons get—if there is something about their character that they can tell you, or something about their background that they can tell you, you like to hear it from them, because you have a very serious and difficult task, and the fact that they chose to rest upon whatever evidence there is here in the case in chief is something that you can consider in deciding whether or not they had been fair with you.
47
'This is the chance that they take by not having taken the stand.'
48
Mr. Justice STEWART, concurring in the result.
49
In devising a harmless-error rule for violations of federal constitutional rights, both the Court and the dissent proceed as if the question were one of first impression. But in a long line of cases, involving a variety of constitutional claims in both state and federal prosecutions, this Court has steadfastly rejected any notion that constitutional violations might be disregarded on the ground that they were 'harmless.' Illustrations of the principle are legion.
50
When involuntary confessions have been introduced at trial, the Court has always reversed convictions regardless of other evidence of guilt. As we stated in Lynumn v. State of Illinois, 372 U.S. 528, 537, 83 S.Ct. 917, 922, 9 L.Ed.2d 922, the argument that the error in admitting such a confession 'was a harmless one * * * is an impermissible doctrine.' That conclusion has been accorded consistent recognition by this Court. Malinski v. People of State of New York, 324 U.S. 401, 404, 65 S.Ct. 781, 783, 89 L.Ed. 1029; Payne v. State of Arkansas, 356 U.S. 560, 568, 78 S.Ct. 844, 850; Spano v. People of State of New York, 360 U.S. 315, 324, 79 S.Ct. 1202, 1207, 3 L.Ed.2d 1265; Haynes v. State of Washington, 373 U.S. 503, 518—519, 83 S.Ct. 1336, 1345, 10 L.Ed.2d 513; Jackson v. Denno, 378 U.S. 368, 376 377, 84 S.Ct. 1774, 1780, 12 L.Ed.2d 908. Even when the confession is completely 'unnecessary' to the conviction, the defendant is entitled to 'a new trial free of constitutional infirmity.' Haynes v. State of Washington, supra, 373 U.S., at 518—519, 83 S.Ct., at 1346.1
51
When a defendant has been denied counsel at trial, we have refused to consider claims that this constitutional error might have been harmless. 'The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.' Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680. That, indeed, was the whole point of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, overruling Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595. Even before trial, when counsel has not been provided at a critical stage, 'we do not stop to determine whether prejudice resulted.' Hamilton v. State of Alabama, 368 U.S. 52, 55, 82 S.Ct. 157, 159, 7 L.Ed.2d 114; White v. State of Maryland, 373 U.S. 59, 60, 83 S.Ct. 1050, 10 L.Ed.2d 193.
52
A conviction must be reversed if the trial judge's remuneration is based on a scheme giving him a financial interest in the result, even if no particular prejudice is shown and even if the defendant was clearly guilty. Tumey v. Ohio, 273 U.S. 510, 535, 47S.Ct. 437, 445. To try a defendant in a community that has been exposed to publicity highly adverse to the defendant is per se ground for reversal of his conviction; no showing need be made that the jurors were in fact prejudiced against him. Sheppard v. Maxwell, 384 U.S. 333, 351 352, 86 S.ct. 1507, 1515, 16 L.Ed.2d 600; cf. Rideau v. State of Louisiana, 373 U.S. 723, 727, 83 S.Ct. 1417, 1419, 10 L.Ed.2d 663. See also Estes v. State of Texas, 381 U.S. 532, 542—544, 85 S.Ct. 1628, 1632—1633, 14 L.Ed.2d 543; 381 U.S. 562—564, 85 S.Ct. 1642 1643 (Warren, C. J., concurring); 381 U.S. 593—594, 85 S.Ct. 1665 1666 (Harlan, J., concurring).
53
When a jury is instructed in an unconstitutional presumption, the conviction must be overturned, though there was ample evidence apart from the presumption to sustain the verdict. Bollenbach v. United States, 326 U.S. 607, 614—615, 66 S.Ct. 402, 405—406, 90 L.Ed. 350. Reversal is required when a conviction may have been rested on a constitutionally impermissible ground, despite the fact that there was a valid alternative ground on which the conviction could have been sustained. Stromberg v. People of State of California, 283 U.S. 359, 367—368, 51 S.Ct. 532, 535, 75 L.Ed. 1117; Williams v. State of North Carolina, 317 U.S. 287, 292, 63 S.Ct. 207, 210, 87 L.Ed. 279. In a long line of cases leading up to and including whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599, it has never been suggested that reversal of convictions because of purposeful discrimination in the selection of grand and petit jurors turns on any showing of prejudice to the defendant.
54
To be sure, constitutional rights are not fungible goods. The differing values which they represent and protect may make a harmless-error rule appropriate for one type of constitutional error and not for another. I would not foreclose the possibility that a harmless-error rule might appropriately be applied to some constitutional violations.2 Indeed, one source of my disagreement with the court's opinion is its implicit assumption that the same harmless-error rule should apply indiscriminately to all constitutional violations.
55
But I see no reason to break with settled procedent in this case, and promulgate a novel rule of harmless error applicable to clear violations of Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229.3 The adoption of any harmlesserror rule, whether the one proposed by the Court, or by the dissent, or some other rule, commits this Court to a case-by-case examination to determine the extent to which we think unconstitutional comment on a defendant's failure to testify influenced the outcome of a particular trial. This burdensome obligation is one that we here are hardly qualified to discharge.
56
A rule of automatic reversal would seem best calculated to prevent clear violations of Griffin v. State of California. This case is one in which the trial occurred before the Griffin decision but which was not final on appeal until afterwords, so the doctrine of prospectivity announced in Tehan v. United Staes ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453, does not reach it. But the number of such cases is strictly limited. Prosecutors are unlikely to indulge in clear violations of Griffin in the future, and if they do I see no reason why the sanction of reversal should not be the result.
57
For these reasons I believe it inappropriate to inquire whether the violation of Griffin v. State of California that occurred in this case was harmless by any standard, and accordingly I concur in the reversal of the judgment.
58
Mr. Justice HARLAN, dissenting.
59
The Court today holds that the harmlessness of a trial error in a state criminal prosecution, such error resulting from the allowance of prosecutorial comment barred by the Fourteenth Amendment, must be determined under a 'necessary rule' of federal law. The Court imposes a revised version of the standard utilized in Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, on state appellate courts, not because the Constitution requires that particular standard, but because the Court prefers it.
60
My understanding of our federal system, and my view of the rationale and function of harmless-error rules and their status under the Fourteenth Amendment, lead me to a very different conclusion. I would hold that a state appellate court's reasonable application of a constitutionally proper state harmless-error rule to sustain a state conviction constitutes an independent and adequate state ground of judgment. Believing this to be the situation here, I would dismiss the writ. Viator v. Stone, 336 U.S. 948, 69 S.Ct. 882, 93 L.Ed. 1104.
I.
61
The key to the Court's opinion can, I think, be found in its statement that it cannot 'leave to the States the formulation of the authoritative laws, rules, and remedies designed to protect people from infractions by the States of federally guaranteed rights,' and that 'in the absence of appropriate congressional action 'the Court must fashion protective rules. The harmless-error rule now established flows from what is seemingly regarded as a power inherent in the Court's constitutional responsibilities rather than from the Constitution itself. The Court appears to acknowledge that other harmless-error formulations would be constitutionally permissible. It certainly indicates that Congress, for example, could impose a different formulation.1
62
I regard the Court's assumption of what amounts to a general supervisory power over the trial of federal constitutional issues in state courts as a startling constitutional development that is wholly out of keeping with our federal system and completely unsupported by the Fourteenth Amendment where the source of such a power must be found. The Fourteenth Amendment guarantees individuals against invasions by the States of fundamental invasions by the States of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 and under more recent decisions of this Court some of the specifics of the Bill of Rights as well. See, e.g., in the context of this case, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653; Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229. It thus serves as a limitation on the actions of the States, and lodges in this Court the same power over state 'laws, rules, and remedies' as the Court has always had over the 'laws, rules, and remedies' created by Congress. This power was classically described by Chief Justice Marshall in Marbury v. Madison, 1 Cranch 137, 178, 2 L.Ed. 60:
63
'So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. * * *'
64
Nothing in the Fourteenth Amendment purports to give federal courts supervisory powers, in the affirmative sense of McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, over state courts. See id., at 340—341, 63 S.Ct., at 612—613. Moreover, where the constitutional power described by Marshall has been invoked, the Court has always been especially reluctant to interfere with state procedural practices. See Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606. From the beginning of the federal Union, state courts have had power to decide issues of federal law and to formulate 'authoritative laws, rules, and remedies' for the trial of those issues. The primary responsibility for the trial of state criminal cases still rests upon the States, and the only constitutional limitation upon these trials is that the laws, rules, and remedies applied must meet constitutional requirements. If they do not, this Court may hold them invalid. The Court has no power, however, to declare which of many admittedly constitutional alternatives a State may choose.2 To impose uniform national requirements when alternatives are constitutionally permissible would destroy that opportunity for broad experimentation which is the genius of our federal system.
65
Even assuming that the Court has the power to fashion remedies and procedures binding on state courts for the protection of particular constitutional rights, I could not agree that a general harmless-error rule falls into that category. The harmless-error rules now utilized by all the States and in the federal judicial system are the product of judicial reform early in this century. Previously most American appellate courts, concerned about the harshness of criminal penalties, followed the rule imposed on English courts through the efforts of Baron Parke, and held that any error of substance required a reversal of conviction. See Orfield, Criminal Appeals in America 190. The reform movement, led by authorities like Roscoe Pound and Learned Hand, resulted in allowing courts to discontinue using reversal as a 'necessary' remedy for particular errors and 'to substitute judgment for the automatic application of rules * * *.' 4 Barron, Federal Practice and Procedure § 2571, at 438. This Court summarized the need for that development in the leading case of Koteakos v. United States, 328 U.S. 750, 759, 66 S.Ct. 1239, 1245, 90 L.Ed. 1557:
66
's 269 (a federal harmless error provision) and similar state legislation grew out of widespread and deep conviction over the general course of appellate review in American criminal causes. This was shortly, as one trial judge put it after § 269 had become law, that courts of review, 'tower above the trials of criminal cases as impregnable citadels of technicality.' * * * (C)riminal trial became a game for sowing reversible error in the record.'
67
Holding, as is done today, that a special harmless-error rule is a necessary remedy for a particular kind of error revives the unfortunate idea that appellate courts must act on particular errors rather than decide on reversal by an evaluation of the entire proceeding to determine whether the cause as a whole has been determined according to properly applicable law. In this case, California has recognized the impropriety of the trial comment here involved, and has given clear direction to state trial courts for the future. Certainly this is the appropriate remedy for the constitutional error committed. The challenged decision has no direct relation to federal constitutional provisions, rather it is an analysis of the question whetehr this admittedly improper comment had any significant impact on the outcome of the trial. In Kotteckos, supra, this Court described the 'material factors' in harmless-error determinations as 'the character of the proceeding, what is at stake upon its outcome, and the relation of the error asserted to casting the balance for decision on the case as a whole * * *.' Id., at 762, 66 S.Ct., at 1246. None of these factors has any relation to substantive constitutional provisions, and I think the Court errs in conceiving of an application of harmless-error rules as a remedy designed to safeguard particular constitutional rights.3 It seems clear to me that harmless-error rules concern, instead, the fundamental integrity of the judicial proceedings as a whole.
68
As indicated above, I am of the opinion that the validity of a challenged state harmless-error rule itself is a federal constitutional question. Harmless-error rules may, as the Court says, 'work very unfair and mischievous results.' And just concern can be expressed over the possibility that state harmless-error decisions may result in the dilution of new constitutional doctrines because of state hostility to them. However, the record is barren of any showing that the California courts, which have been in the vanguard in the development of individual safeguards in criminal trials,4 are using their harmless-error rule to destroy or dilute constitutional guarantees. If the contrary were the case and the harmless-error rule itself were shown to have resulted in a course of convictions significantly influenced by constitutionally impermissible factors, I think it clear that constitutional due process could not countenance the continued application of the rule.5 And individual applications of a permissible rule would still be subject to scrutiny as to the tenability of the independent and adequate state ground. See Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654; Terre Haute & Indianapolis Railroad Co. v. State of Indiana ex rel. Ketcham, 194 U.S. 579, 24 S.Ct. 767, 48 L.Ed. 1124; Note, The Untenable Non-federal Ground in the Supreme Court, 74 Harv.L.Rev. 1375.
69
I thus see no need for this new constitutional doctrine.6 Decision of this case should turn instead on the answers to two questions: Is the California harmless-error provision consistent with the guarantee of fundamental fairness embodied in the Due Process Clause of the Fourteenth Amendment? See Palko v. Connecticut, supra. Was its application in this instance by the California Supreme Court a reasonable one or was the rule applied arbitrarily to evade the underlying constitutional mandate of fundamental fairness? These issues will now be considered.
II.
70
The California harmless-error rule, is incorporated in that State's constitution. It was first adopted by a vote of the people in 1911 and readopted as part of the revised constitution in 1966. While its language allows reversal only where there has been a 'miscarriage of justice,' a long course of judicial decisions has shaped the rule in a manner which cannot be ignored. California courts will not allow a conviction based upon an improperly obtained confession to stand. See, e.g., People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361; People v. Sears, 62 Cal.2d 737, 44 Cal.Rptr. 330, 401 P.2d 938. Nor will the fact that sufficient evidence to support the conviction is present absent the tainted evidence preclude a reversal. See, e.g., People v. Patubo, 9 Cal.2d 537, 71 P.2d 270, 113 A.L.R. 1303; People v. Mahoney, 201 Cal. 618, 258 P. 607. And reversal will be required when the tainted evidence is introduced in intentional violation of constitutional standards. See People v. Sarazzawski, 27 Cal.2d 7, 161 P.2d 934. Thus the California rule and the 'federal rule' today declared applicable to state adjudication are parallel in these special instances7 and their divergence, if any, arises from the general formulation found in the opinions of the California Supreme Court.
71
In People v. Watson, 46 Cal.2d 818, 299 P.2d 243, the California Supreme Court undertook a general discussion of the application of the state harmless-error rule. It declared that the 'final test' was 'the 'opinion' of the reviewing court, in the sense of its belief or conviction, as to the effect of the error; and that ordinarily where the result appears just, and it further appears that such result would have been reached if the error had not been committed, a reversal will not be ordered.' Reversal would be required only when 'it is reasonably probable that a result more favorable to the appealing party would have been reached,' and this judgment 'must necessarily be based upon reasonable probabilities rather than upon mere possibilities; otherwise the entire purpose of the constitutional provision would be defeated.' 46 Cal.2d, at 835—837, 299 P.2d, at 254—255. This formulation may sound somewhat different from that announced today, but on closer analysis the distinction between probability and possibility becomes essentially esoteric. In fact, California courts have at times equated the California standard with the standard utilized by this Court in Fahy v. State of Connecticut, supra. See, e.g., People v. Jacobson, 63 Cal.2d 319, 331, 46 Cal.Rptr. 515, 523, 405 P.2d 555, 563.
72
Similarly members of this Court have used a variety of verbal formulae in deciding questions of harmless error in federal cases, ranging from today's 'reasonable doubt' standard to the ability to 'say with fair assurance * * * that the jury was not substantially swayed * * *.' Fiswick v. United States, 329 U.S. 211, 218, 67 S.Ct. 224, 228, 91 L.Ed. 196. And the circuit courts have been equally varied in their expressions. United States v. Brown, 79 F.2d 321; United States v. Feinberg, 2 Cir., 140 F.2d 592; United States v. McMaster, 6 Cir., 343 F.2d 176.
73
Against this background the California rule can hardly be said to be out of keeping with fundamental fairness, and I see no reason for striking it down on its face as a violation of the guarantee of 'due process.'8
III.
74
A summary of the evidence introduced against the petitioners and events of the trial will make it apparent that the application of the California rule in this case was not an unreasonable one. California courts have not hesitated to declare that comment has caused a miscarriage of justice when that conclusion has been warranted by the circumstances, see, e.g., People v. Keller, 234 Cal.App.2d 395, 44 Cal.Rptr. 432; People v. Sigal, 235 Cal.App.2d 449, 45 Cal.Rptr. 481, but the posture of this case minimized the possible impact of the comment.
75
Petitioners were tried for the murder of a night club bartender in the course of a robbery of the club. The State established that petitioners were the last customers remaining in the club on the night of the murder. Three people with descriptions matching those of Chapman, Teale, and the victim were seen leaving the club together. The club had been ransacked and its condition indicated that the victim had been forced out of it. He was later shot from close range with a .22-caliber weapon and left beside a country road. It was shown that Chapman had purchased a similar weapon five days before the murder and this weapon was in Teale's possession when he was arrested. Blood matching the type of the victim was found on the floormat of the vehicle in which Chapman and Teale had been traveling. Other scientific testimony established that the victim had been in petitioners' car. Blood (untypable) was found on Chapman's clothes, and blood matching the victim's was found on her shoes. Similar evidence connected Teale with the murder.
76
After his arrest Teale made admissions, amounting almost to a full confession, to a fellow prisoner and these were introduced against him. The jury was cautioned to disregard them as against Chapman. Petitioners pleaded not guilty, but offered no defense on the merits. The only defense witness was a Dr. Sheuerman who was called by Chapman in an effort to establish a defense of lack of capacity to form the requisite intent because of 'disassociative reaction.'
77
The prosecutor's comment on petitioners' failure to explain away or challenge the evidence presented against them was admittedly extensive.9 The California Supreme Court found it harmless error for a number of reasons. First the court noted the convincing and unchallenged evidence presented by the State. It next observed that the jurors were certain to take notice of petitioners' silence whether or not there was comment since the evidence itself cried for an explanation. I think this point crucial, since it seems to me that this Court has confused the impact of petitioners' silence on the jury with the impact of the prosecution's comment upon that silence. The added impact of that comment would seem marginal in a case of this type where the jury must inevitably look to petitioners for an explanation of the innuendo of the real evidence and in Teale's case of his damaging admissions. Finally the California Supreme Court noted that Chapman, against whom the evidence was less strong, had keyed her defense to evidence of her mental defect, a subject upon which the comment had not touched. From this discriminating analysis it was concluded that another result was not 'reasonably probable' absent the erroneous comments.
78
I cannot see how this resolution can be thought other than a reasonable, and therefore constitutional, application of the California harmless-error rule.
IV.
79
When we consider how little is empirically known about the workings of a jury, see Kalven & Zeisel, The American Jury, passim, it seems to me highly inappropriate for this Court to presume to take upon itself the power to pass directly on the correctness of impact evaluations coming from 50 different jurisdictions. Juries must invariably react differently to particular items of evidence because of local predispositions and experience factors. The state courts, manned by local judges aware of and in touch with the special factors affecting local criminal trials, seem the best, and the constitutionally required, final authority for ruling on the effect of the admission of inadmissible evidence in state criminal proceedings, absent the application of a fundamentally unfair rule, or any unreasonable application of a proper rule manifesting a purpose to defeat federal constitutional rights. Once it appears that neither of these factors is present in a state harmless-constitutional-error decision, federal judicial responsibility should be at an end. This decision, however, encompasses much more. It imposes on this Court, in cases coming here directly from state courts, and on the lower federal courts, in cases arising on habeas corpus, the duty of determining for themselves whether a constitutional error was harmless. In all but insubstantial instances, this will entail a de novo assessment of the entire state trial record.
80
For one who believes that among the constitutional values which contribute to the preservation of our free society none ranks higher than the principles of federalism, and that this Court's responsibility for keeping such principles intact is no less than its responsibility for maintaining particular constitutional rights, the doctrine announced today is a most disturbing one. It cuts sharply into the finality of state criminal processes; it bids fair to place an unnecessary substantial burden of work on the federal courts; and it opens the door to further excursions by the federal judiciary into state judicial domains. I venture to hope that as time goes on this new doctrine, even in its present manifestation, will be found to have been strictly contained, still more that it will not be pushed to its logical extremes.
81
I respectfully dissent.
1
Excerpts of the prosecutor's argument are reproduced in the Appendix to this opinion.
2
The trial judge charged the jury:
'It is a constitutional right of a defendant in a criminal trial that he may not be compelled to testify. Thus, whether or not he does testify rests entirely on his own decision. As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge, if he does not testify or if, though he does testify, he fails to deny or explain such evidence, the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable. * * *'
3
Cal.Const., Art. VI, § 4 1/2:
'No judgment shall be set aside, or new trial granted, in any case, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.'
4
'If they (the first ten amendments) are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.' 1 Annals of Cong., 439 (1789).
5
28 U.S.C. § 2111 provides:
'On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.'
Fed.Rule Crim.Proc. 52(a) provides:
'Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.'
See also Fed.Rule Civ.Proc. 61.
6
The California statutory rule, like the federal rule, provides that '(a) fter hearing the appeal, the Court must give judgment without regard to technical errors or defects, or to exceptions, which do not affect the substantial rights of the parties.' Cal.Pen.Code § 1258.
7
The California Supreme Court in this case did not find a 'miscarriage of justice' as to petitioner Teale, because it found from 'other substantial evidence, (that) the proof of his guilt must be deemed overwhelming.' 63 Cal.2d, at 197, 45 Cal.Rptr., at 740, 404 P.2d, at 220.
8
See, e.g., Payne v. State of Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (coerced confession); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (right to counsel); Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (impartial judge).
9
See generally 1 Wigmore, Evidence § 21 (3d ed. 1940).
10
Cf. Woodby v. Immigration Service, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362.
1
None of these decisions suggests that the rejection of a harmless error rule turns on any unique evidentiary impact that confessions may have. Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, specifically contradicts that notion. In addition to the confession found inadmissible by this Court, the defendant in Haynes had given two prior confessions, the admissibility of which was not disputed, and 'substantial independent evidence' of guilt existed. The Court accepted the prosecution's contention that the inadmissible confession played little if any role in the conviction.
2
For example, quite different considerations are involved when evidence is introduced which was obtained in violation of the Fourth and Fourteenth Amendments. The exclusionary rule in that context balances the desirability of deterring objectionable police conduct against the undesirability of excluding relevant and reliable evidence. The resolution of these values with interests of judicial economy might well dictate a harmless-error rule for such violations. Cf. Fahy v. State of Connecticut, 375 U.S. 85, 92, 84 S.Ct. 229, 233 (dissenting opinion).
3
Earlier this Term, in O'Connor v. Ohio, 385 U.S. 92, 87 S.Ct. 252, 17 L.Ed.2d 189, we reversed a conviction on the basis of Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, without pausing to consider whether the comment on the defendant's silence might have been harmless error under the rule the Court announces today, or any other harmless-error rule.
1
For myself, I intimate no view on congressional power with respect to state courts in this regard.
2
Cases in which lower federal courts, acting under the authority of the Fourteenth Amendment, as expanded by this Court's decision in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, have promulgated their own reapportionment plans may superficially be thought to support such a power. E.g., Reynolds v. State Election Board, D.C., 233 F.Supp. 323. But such cases are quite apart from the present one because they arise from a situation where some positive constitutional action is a necessity and thus require the exercise of special equity powers. Here the ordinary remedy of striking down unconstitutional harmless-error rules and applications is sufficient to deal with any problem that may arise. There is no necessity for a State to have a harmless-error rule at all.
3
The Court indeed recognizes, as does my Brother STEWART in his concurring opinion, that errors of constitutional dimension can be harmless, a proposition supported by ample precedent. See Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674; Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed. 1150; Haines v. United States, 9 Cir., 188 F.2d 546; United States v. Donnelly, 7 Cir., 179 F.2d 227. Prsumably all errors in the federal courts will continue to be evaluated under the single standard of 28 U.S.C. § 2111 as interpreted today. Certainly there is nothing in the substantive provisions of the Bill of Rights which suggests any standard for assessing the impact of their violation.
4
See, e.g., People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513; People Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361.
5
It is clear enough that this is not the rationale that the Court is employing. The Court would leave California free to apply its harmless-error rule to errors of state law and must thus consider the rule itself consistent with constitutional due process. This leaves the anomalous situation where the impact of a particular piece of evidence is to be assessed by a different 'constitutional' standard depending only on whether state law or federal constitutional law barred its admittance.
6
Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, should not be deemed dispositive on such a far-reaching matter, which was entirely passed over in the Court's opinion in that case.
7
Some special limitations on harmless error have always been respected by this Court and seem to me essential to the fundamental fairness guaranteed by the Due Process Clauses of the Fifth and Fourteenth Amendments. These limitations stem from what I perceive as two distinct considerations. The first is a recognition that particular types of error have an effect which is so devastating or inherently indeterminate that as a matter of law they cannot reasonably be found harmless. E.g., Payne v. State of Arkansas, 356 U.S. 560, 78 S.Ct. 844 (confessions); see Fahy v. State of Connecticut, supra, at 95, 84 S.Ct. at 234 (dissenting opinion of Harlan, J.); cf. Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402 (independently sufficient evidence). The second is a recognition that certain types of official misbehavior require reversal simply because society cannot tolerate giving final effct to a judgment tainted with such intentional misconduct. E.g., Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (prosecutorial misconduct). Although they have never been viewed in this light, I would see violations of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, as falling in the first category, and violations of Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, as falling in the second. However, as I understand my Brother STEWART's opinion concurring in the result, he would read all such limitations into the content of the Due Process Clause and limit the application of harmless-error rules with respect to constitutional errors to an undefined category of instances. I think it preferable to resolve these special problems from an analysis of the nature of the error involved rather than by an attempt to discover limitations in the policy underlying the substantive constitutional provisions. The latter course seems to me to blur analysis and lead to distinction by fiat among equally specific constitutional guarantees.
8
The rule was upheld by the Ninth Circuit in Sampsell v. People of State of California, 9 Cir., 191 F.2d 721, against an attack on its constitutionality.
9
The decision in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, was not announced until after the trial of the case. Hence the trial was conducted according to what was, at the time, constitutional California law. No implication of prosecutorial misconduct can be drawn from these circumstances.
| 01
|
386 U.S. 162
87 S.Ct. 927
17 L.Ed.2d 834
Betty LEVIN, Petitioner,v.MISSISSIPPI RIVER FUEL CORPORATION et al. ALLEGHANY CORPORATION et al., Petitioners, v. MISSISSIPPI RIVER FUEL CORPORATION et al.
Nos. 352 and 359.
Argued Jan. 19, 1967.
Decided Feb. 27, 1967.
Breck P. McAllister and John Lowenthal, New York City, for petitioners.
Robert H. McRoberts, St. Louis, Mo., and Dennis G. Lyons, Washington, D.C., for respondents.
Mr. Justice CLARK delivered the opinion of the Court.
1
The ultimate issue in these cases is whether the holders of the Class B stock of the Missouri Pacific Railroad Company (MoPac) are entitled to vote separately, as a class, on the proposed plan of consolidation of MoPac and Texas and Pacific Railway Company (T & P) into the newly formed Texas and Missouri Pacific Railroad Company (T & M). An application has been filed with the Interstate Commerce Commission requesting permission to effect a plan of consolidation under §§ 5(2) and 5(11) of the Interstate Commerce Act, as amended, 54 Stat. 905, 908 (1940), 49 U.S.C. §§ 5(2) and 5(11). MoPac's Board of Directors has announced that its Class B shareholders are not entitled to vote on the plan separately and apart from its Class A shareholders, and that it intends to submit the plan only to the collective vote of the Class A and Class B shareholders.
2
Three separate declaratory judgment actions were filed by different Class B shareholders seeking a declaration that the plan requires the separate approval of the holders of the Class B shares by majority vote. Upon a limited consolidation of the cases, the District Court held that MoPac's Articles of Association prohibited the consolidation unless class voting was observed and that § 5(11)1 of the Interstate Commerce Act, by adopting state law, required the separate approval of each class of shareholders. 233 F.Supp. 747. The Court of Appeals reversed on the ground that, despite Missouri law, the 'plenary character of § 5(11) * * * with its consequent preemptive nature' compelled a contrary result. 359 F.2d 106, at 119. We granted certiorari. 385 U.S. 814, 87 S.Ct. 86, 17 L.Ed.2d 53. We have concluded that Missouri law, as provided by § 5(11), is controlling on the point and that the judgment must, therefore, be reversed.
I.
3
Background of the Parties and the Litigation.
4
MoPac, a Missouri corporation, is an interstate common carrier railroad. It had been in reorganization proceedings under § 77 of the Bankruptcy Act, as amended, 11 U.S.C. § 205, until January 1, 1955.2 After those proceedings terminated, the corporation's preferred and common stock was replaced by two classes of $100 stated capital no par voting shares: Class A, which is preferentially entitled to noncumulative dividends not to exceed $5 per share annually, and Class B, which is entitled to all the earnings and the equity in excess of the Class A preferences. MoPac's Articles of Association, Art. VII, § D(3), provide that class voting shall not be required save as to four types of corporate change, none of which shall be effected without the separate consent of the record holders of a majority of the Class A and the Class B shares. The four specified changes are: (1) the issuance of additional shares; (2) the creation or issuance of any MoPac obligation or security convertible into or exchangeable for MoPac shares; (3) an alteration or change in 'the preferences, qualifications, limitations, restrictions and special or relative rights of the Class A Stock or of the Class B Stock'; and, finally, (4) the amendment or elimination of any of the foregoing requirements.
5
MoPac has 1,849,576 shares of Class A stock and 39,731 shares of Class B stock outstanding. T & P was incorporated by an Act of Congress in 1871 and is also an interstate railroad of which MoPac owns 82.86% of the outstanding shares of stock. Mississippi River Fuel Corporation (Mississippi) is a Delaware corporation and owns a majority (57.95%) of the Class A shares of the stock of MoPac. Alleghany Corporation (Alleghany) is a Maryland corporation and owns a majority (51%) of the Class B stock of MoPac, subject to a voting trust. T & M is a Delaware corporation organized for the purpose of being the consolidated company upon the merger of MoPac and T & P.
6
The agreement and plan of consolidation were approved by the Board of Directors of MoPac and T & P in December of 1963. The plan provided for an exchange of each MoPac share (without regard to class) for four shares of the new corporation and for an exchange of the T & P stock (other than that owned by MoPac) on a basis of one share of T & P for 4.8 shares of the new company. In January of 1964, the three companies filed a joint application with the Interstate Commerce Commission for an order under § 5(2) of the Act authorizing the consolidation and the issuance of securities by T & M under § 20a. In this application MoPac advised that it would submit the proposed plan to its stockholders, for approval, by May of 1964 on the basis of a collective, rather than class, vote.
7
There are a total of six individual petitioners, each of whom owns only a nominal number of Class B shares, and Alleghany which owns, as aforesaid, a majority of those shares. The respondents are MoPac, T & P, Mississippi, and some of their directors or officers, only one of whom owns any Class B stock of MoPac. The first of the three suits which this cause involves was filed prior to the submission of the plan to the Commission; the second and third subsequent thereto. Each of the suits attacks the plans of consolidation, alleging, among other things, that the Class B stock has a much greater value than that of the Class A and that the exchange is unfair; that the collective voting plan would violate the Articles of Association, the law of Missouri (and, therefore, § 5(11) of the Act) and would result in irreparable injury to the Class B shareholders. Each complaint prays for a declaration that the plan of consolidation requires the separate vote of each class of stock. At trial the parties agreed that the court should first pass upon the voting rights question. The District Court held that class voting was required and certified the issue to the Court of Appeals which permitted an interlocutory appeal under 28 U.S.C. § 1292(b). Further proceedings in the District Court were stayed.
8
As we have indicated, the Court of Appeals held that, even though MoPac's Articles of Association required a class vote on consolidation and Missouri law, therefore, demanded such a vote, it nevertheless was 'impressed with the significance of the national transportation policy and its emphasis on railroad consolidation, with the stated exclusive and plenary character of § 5(11), and with its consequent preemptive nature.' 359 F.2d, at 119. The Court felt that, by virtue of the federal statute, it was compelled to conclude that it should apply the general standard as to voting rights, i.e., the majority of all voting shares, rather than honor the exception, i.e., class voting, as provided under Missouri law.
II.
9
Conclusion.
10
We believe the Court of Appeals erred in so construing § 5(11) of the Act. That section specifically provides that voluntary consolidations of railroads must have the assent 'of a majority (vote of all shares), unless a different vote is required under applicable State law, in which case the number so required shall assent, of the votes of the holders of the shares entitled to vote * * *.' As the Court of Appeals held, this section 'bows in the direction of state law.' 359 F.2d, at 114. Both the District Court and the Court of Appeals decided that Mo.Rev.Stat. c. 351 (1966), V.A.M.S., was 'the applicable state law.' As both courts found, § 351.055(3) authorizes the issuance of classes of shares of stock and § 351.270 provides that where 'the articles of incorporation require the vote or concurrence of the holders of a greater portion of the shares, or of any class or series thereof, than required by this chapter with respect to such action, the provisions of the articles of incorporation shall control this section.' But the Court of Appeals concluded that since § 351.4253 permitted the plan to be approved by the vote of at least two-thirds of all the outstanding shares, § 5(11) required that it control, rather than § 351.270. We think not. In using the language 'required under applicable State law,' § 5(11) embraced all state law, as the Court of Appeals held. This included the exception of § 351.270 as to those corporations whose articles of incorporation required class voting. The national transportation policy and the provisions of § 5(11), rather than permitting the result the Court of Appeals reached, require that 'the articles of incorporation shall control * * *.' It follows that if a consolidation comes within the requirements of § D(3) of the articles of association, the approval by the separate vote of each class of stock is required. The District Court found that the plan of consolidation did come within § D(3). It is clear that the Court of Appeals did not disturb this finding, although it is not precisely clear what the court found on the question. At one point, it appears to say that 'the articles seem to require' separate class voting, while it later assumes that they do so. Subsequently the opinion notes that the court is 'not persuaded * * * that MoPac's Articles call for a class vote on a consolidation * * *.' 359 F.2d, at 119. In any event, we agree with the trial court that the articles do require a separate class vote on the plan. We believe that the provision that the company 'shall not * * * (c) alter or change the preferences, qualifications, limitations, restrictions and special or relative rights of the Class A Stock or of the Class B Stock' would clearly include the plan of consolidation here. MoPac, by consolidating the two railroads that it already controls, will change its Class A stock from voting shares preferentially entitled to noncumulative dividends of not to exceed $5 per share annually to shares that participate equally in all of the earnings of the company. The Class B stock which now enjoys all of the earnings and the equity in excess of the present Class A preferences would lose those special features. As the Court of Appeals found, the effectuation of the plan would 'result in the present Class B holdings being engulfed by the larger number of Class A holdings.' 359 F.2d, at 110. It is apropos to note here that while the equity of each Class A share remains limited to $100, the value of the equity of the Class B shares is approximately $6,500 per share. The plan proposes to exchange four shares of stock of T & M for one share of MoPac Class B, which, under such values, is like exchanging four rabbits for one horse. Moreover, the final proviso of § D(3) requires a separate class vote where any amendment or elimination of any of the provisions of the section itself is proposed. Under the plan this section would be entirely eliminated on the basis of a collective vote rather than a separate class one. But MoPac argues that this would not be 'company action.' We cannot agree. The boards of directors of MoPac and T & P, which it controls, drew up the plan and now request its approval by the Interstate Commerce Commission. This certainly is 'company action' within the terms of the Articles.4 Indeed, this point is so clear that we see no occasion for remanding the issue to the Court of Appeals for its consideration of the point, even though it be assumed that its opinion does not decide it. Effective judicial administration requires that we dispose of the matter here.
11
We do not, of course, reach the merits of the proposed plan which is the concern of the Commission in the first instance. Any reference to the effect of the plan is not to be construed as in any way passing upon its merits. With reference to voting rights, we hold only that in a consolidation as proposed here, Missouri law must be applied and that § 351.270 of that law requires the application of the Articles of Association of MoPac, which in turn, require the assent of the majority of the shareholders on a separate class-vote basis.
12
The judgment is, therefore, reversed and the cause remanded for further proceedings consistent with this opinion.
13
It is so ordered.
14
Judgment reversed and cause remanded with directions.
15
Mr. Justice FORTAS took no part in the consideration or decision of these cases.
1
Section 5(11):
'The authority conferred by this section shall be exclusive and plenary, and any carrier or corporation participating in or resulting from any transaction approved by the Commission thereunder, shall have full power (with the assent, in the case of a purchase and sale, a lease, a corporate consolidation, or a corporate merger, of a majority, unless a different vote is required under applicable State law, in which case the number so required shall assent, of the votes of the holders of the shares entitled to vote of the capital stock of such corporation at a regular meeting of such stockholders, the notice of such meeting to include such purpose, or at a special meeting thereof called for such purpose) to carry such transaction into effect and to own and operate any properties and exercise any control or franchises acquired through said transaction without invoking any approval under State authority * * *.'
2
See Missouri Pac. R. Co. Reorganization, 290 I.C.C. 477 (1954); In re Missouri Pac. R. Co., 129 F.Supp. 392 (D.C.E.D.Mo.1955), aff'd sub nom. Missouri Pac. R. Co. 5 1/4% S.S.B.C. v. Thompson, 225 F.2d 761 (C.A.8th Cir. 1955).
3
Mo.Rev.Stat. § 351.425 provides, in pertinent part: '* * * The plan of merger or consolidation shall be approved upon receiving the affirmative vote of the holders of at least two-thirds of the outstanding shares entitled to vote at such meeting, of each of such corporations.'
4
It is interesting to note that the Interstate Commerce Commission itself required that Art. VII, § D(3) be inserted in MoPac's Articles of Association. The Commission's order provided:
'The certificate of incorporation (of the reorganized corporation) shall permit the authorization from time to time of additional shares of common stock of either class, but shall specifically provide that the new company shall not alter or change the rights of holders of either class of stock or authorize the issuance of additional shares of either class or of any other class or of participating or convertible preferred stock, without the consent of the holders of not less than a majority of the number of shares of common stock of each class at the time outstanding.' 290 I.C.C. 477, at 665.
| 78
|
386 U.S. 212
87 S.Ct. 977
17 L.Ed.2d 870
Janet PHILLIPS and William Ross Phillipsv.CALIFORNIA.
No. 684, Misc.
Supreme Court of the United States
February 27, 1967
Rehearing Denied April 10, 1967.
See 386 U.S. 1000, 87 S.Ct. 1311.
Janet Phillips and William Ross Phillips, pro se.
Thomas C. Lynch, Atty. Gen. of California, William E. James, Asst. Atty. Gen., and S. Clark Moore, Deputy Atty. Gen., for appellee.
On Petition for Writ of Certiorari to the District Court of Appeal of California, Second Appellate District.
PER CURIAM.
1
The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is reversed. Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824.
2
Mr. Justice BLACK and Mr. Justice CLARK are of the opinion that the judgment should be vacated and the case remanded for further consideration in light of Chapman v. State of California, supra.
3
Mr. Justice HARLAN would affirm the judgment below for the reasons set forth in his dissenting opinion in Chapman v. State of California, 386 U.S., at 45, 87 S.Ct., at 839.
| 01
|
386 U.S. 129
87 S.Ct. 932
17 L.Ed.2d 814
CASCADE NATURAL GAS CORPORATION, Appellant,v.EL PASO NATURAL GAS CO. et al. PEOPLE OF the STATE OF CALIFORNIA, Appellant, v. EL PASO NATURAL GAS CO. et al. SOUTHERN CALIFORNIA EDISON CO., Appellant, v. EL PASO NATURAL GAS CO. et al.
Nos. 4, 5, 24.
Argued Jan. 12, 1967.
Decided Feb. 27, 1967.
[Syllabus from pages 129-131 intentionally omitted]
William M. Bennett, San Francisco, Cal., Rollin E. Woodbury, Los Angeles, Cal., and Richard B. Hooper, Seattle, Wash., for appellants.
Daniel Friedman, Deputy Sol. Gen., and Gregory A. Harrison, San Francisco, Cal., for appellees.
Richard W. Sabin, Salem, Ore., for State of Oregon, as amicus curiae, by special leave of Court.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
When this case was here the last time,1 we held that the acquisition of Pacific Northwest Pipeline Corporation by El Paso Natural Gas Company violated § 7 of the Clayton Act; and we directed the District Court 'to order divestiture without delay.' United States v. El Paso Natural Gas Co., 376 U.S. 651, 662, 84 S.Ct. 1044, 1050, 12 L.Ed.2d 12. That was on April 6, 1964. It is now nearly three years later and, as we shall see, no divestiture in any meaningful sense has been directed. The United States, now an appellee, maintains that the issues respecting divestiture are not before us. The threshold question does indeed involve another matter. Appellants were denied intervention by the District Court and came here by way of appeal, 32 Stat. 823, 15 U.S.C. § 29. We noted probable jurisdiction. 382 U.S. 970, 86 S.Ct. 528, 15 L.Ed.2d 463.
I.
2
The initial question concerning intervention turns on a construction of Rule 24(a) of the Federal Rules of Civil Procedure entitled 'Intervention of Right.' At the time the District Court ruled on the motions that Rule provided in relevant part, 'Upon timely application anyone shall be permitted to intervene in an action * * * (3) when the applicant is so situated as to be adversely affected by * * * disposition of property which is in the custody or subject to the control or disposition of the court or an officer thereof.' As amended effective July 1, 1966, subsequent to the time these motions to intervene were denied. Rule 24(a)(2) provides that there may be intervention of right, 'when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.'
3
California, one of the appellants, is a State where El Paso sells most of its gas and its purpose in intervening was to assure that Pacific Northwest, illegally merged with El Paso, or its successor, would be restored as an effective competitor in California. As we noted in the prior opinion, Pacific Northwest had been 'a substantial factor in the California market at the time it was acquired by El Paso.' 376 U.S., at 658, 84 S.Ct., at 1048. It was to restore that 'competitive factor' that divestiture was ordered. Id., at 658—662, 84 S.Ct., at 1048—1050. Southern California Edison, another appellants, is a large industrial user of natural gas purchasing from El Paso sources and desirous of retaining competition in California. Cascade Natural Gas is a distributor in Oregon and Washington, and its sole supplier of natural gas was Pacific Northwest and will be the New Company created under the divestiture plan. Cascade maintains that there has been a grossly unfair division of gas reserves between El Paso, and the New Company, Particularly in the southwest field known as the San Juan Basin. Moreover, the District Court approved contracts between El Paso and the New Company for delivery of gas both from Canada and from the San Juan Basin, and allowed El Paso unilaterally and without application to the Federal Power Commission, to saddle new and allegedly onerous prices and other conditions on the New Company. Moreover, the stock of West Coast Transmission Co., Ltd., was ordered sold for the benefit of El Paso. Pacific Northwest had owned about a fourth of West Coast Transmission's stock and that ownership gave Pacific Northwest, it is said, special insight into and access to the Canadian gas supply. These factors, implicating the ability of Pacific Northwest to perform in the future, give Cascade, it is argued, standing to intervene.
4
Under old Rule 24(a)(3) those 'adversely affected' by a disposition of property would usually be those who have an interest in the property.2 But we cannot read it to mean exclusively that group.
5
Rule 24(a)(3) was not merely a restatement of existing federal practice at law and in equity. If it had been, there would be force in the argument that the rigidity of the older cases remains unaltered, restricting intervention as of right very narrowly, as for example where there is a fund in court to which a third party asserts a right that would be lost absent intervention. Credits Commutation Co. v. United States, 177 U.S. 311, 316, 20 S.Ct. 636, 638, 44 L.Ed. 782; Central Trust Co. of New York v. Chicago, R.I. & P.R. Co., 2 Cir., 218 F. 336, 339. But the Advisory Committee stated that Rule 24 'amplifies and restates the present federal practice at law and in equity.' We therefore know that some elasticity was injected;3 and the question is, how much. As stated by the Court of Appeals for the Second Circuit in the Central Trust Co. case, 'It is not always easy to draw the line.' Ibid.
6
In Missouri-Kansas Pipe Line Co. v. United States, 312 U.S. 502, 665, 61 S.Ct. 666, 85 L.Ed. 975, a consent decree was entered in an antitrust suit, designed to protect Panhandle from Columbia which had acquired domination of the former to stifle its competition. The decree sought to assure opportunities for competition by Panhandle. A security holder of Panhandle sought to intervene on Panhandle's behalf when the consent decree was reopened and was denied that right. We reversed, noting at the outset that 'the circumstances under which interested outsiders should be allowed to become participants in a litigation is, barring very special circumstances, a matter for the nisi prius court. But where the enforcement of a public law also demands distinct safeguarding of private interests by giving them a formal status in the decree, the power to enforce rights thus sanctioned is not left to the public authorities not put in the keeping of the district court's discretion.' Id., at 506, 61 S.Ct., at 668.
7
We noted that Panhandle's economic independence was 'at the heart of the controversy.' Ibid. In the present case protection of California interests in a competitive system was at the heart of our mandate directing divestiture. For it was the absorption of Pacific Northwest by El Paso that stifled that competition and disadvantaged the California interests. It was indeed their interests, as part of the public interest in a competitive system, that our mandate was designed to protect. In that sense the present case is very close to Pipe Line Co. Apart from that but in the spirit of Pipe Line Co. we think that California and Southern California Edison qualify as intervenors under Rule 24(a)(3). Certainly these two appellants are 'so situated' geographically as to be 'adversely affected' within the meaning of Rule 24(a)(3) by a merger that reduces the competitive factor in natural gas available to Californians. We conclude that it was error to deny them intervention. We need not decide whether Cascade could have intervened as of right under that Rule. For there is now in effect a new version of Rule 24(a) which in subsection (2) recognizes as a proper element in intervention 'an interest' in the 'transaction which is the subject of the action.' This Rule applies to 'further proceedings' in pending actions. 383 U.S. 1031. Since the entire merits of the case must be reopened to give California and Southern California Edison an opportunity to be heard as of right as intervenors, we conclude that the new Rule 24(a)(2) is broad enough to include Cascade also; and as we shall see the 'existing parties' have fallen far short of representing its interests. We therefore reverse the District Court in each of these appeals and remand with directions to allow each appellant to intervene as of right, to vacate the order of divestiture and to have de novo hearings on the type of divestiture we envisioned and made plain in our opinion in 376 U.S. 651, 84 S.Ct. 1044.
II.
8
The necessity for new hearings needs a word of explanation.
9
The United States on oral argument stated that the decree to which it agreed and which it urges us to approve was made in 'settlement' of the litigation. We do not question the authority of the Attorney General to settle suits after, as well as before, they reach here. The Department of Justice, however, by stipulation or otherwise has no authority to circumscribe the power of the courts to see that our mandate is carried out. No one, except this Court, has authority to alter or modify our mandate. United States v. E. I. du Pont De Nemours & Co., 366 U.S. 316, 325, 81 S.Ct. 1243, 1249, 6 L.Ed.2d 318. Our direction was that the District Court provide for 'divestiture without delay.' That mandate in the context of the opinion plainly meant that Pacific Northwest or a new company be at once restored to a position where it could compete with El Paso in the California market.
10
We do not undertake to write the decree. But we do suggest guidelines that should be followed:
11
Gas Reserves. The gas reserves granted the New Company must be no less in relation to present existing reserves than Pacific Northwest had when it was independent; and the new gas reserves developed since the merger must be equitably divided between El Paso and the New Company. We are told by the intervenors that El Paso gets the new reserves in the San Juan Basin—which due to their geographical propinquity to California are critical to competition in that market. But the merged company, which discovered them, represented the interests both of El Paso and of Pacific Northwest. We do not know what an equitable division would require. Hearings are necessary, followed by meticulous findings made in light of the competitive requirements to which we have adverted.
12
As already indicated, the proposed decree provides the terms of contracts4 imposed on the New Company respecting the purchase and gathering of gas from various sources. It is urged that these contracts are onerous, detrimental to the New Company, and partial to El Paso interests. We do not pass upon the wisdom or desirability of the proposed contracts. It is enough to note that they were proposed by El Paso, that the changes, reluctantly acceded to by the Government, will redound to the substantial benefit of El Paso, and that the New Company has had no opportunity to evaluate the advisability of the terms or to negotiate for better terms. Nor has the Federal Power Commission had the opportunity to pass upon the contracts. The terms of these contracts should be negotiated by the New Company under such restrictions as the Natural Gas Act may impose.
13
(2) Financial Aspects. As noted, El Paso is allowed to sell the stock of West Coast Transmission Co., Ltd., brought into the merger by Pacific Northwest, and keep the proceeds, which if stock prices at the time of the proposed divestiture are considered might result, it is alleged, in a profit of $10,000,000 or more, while the New Company gets the stock of Northwest Production Co. which from 1960—1963 showed heavy losses. It is charged that by the proposed decree El Paso is saving the cream for itself and foisting the 'cats and dogs' on the New Company. It is also earnestly argued that the New Company will sorely need the valuable and fairly liquid stock of West Coast Transmission if it is to have the working capital necessary to restore the competitive balance that the merger destroyed. These are highly relevant arguments. Certainly a plan of divestiture of the kind we envisaged must establish a New Company in the same or comparable competitive position that Pacific Northwest was in when the illegal merger obliterated it.
14
It is also pointed out that some $53,000,000 of taxable losses which Pacific Northwest had were utilized by El Paso during the years following the illstarred merger. It is argued that since these tax loss carry-overs were in a real sense an asset of Pacific Northwest utilized by El Paso, the New Company should receive other assets or a reduction in debt of equivalent value. These allegations, if proven, require remuneration of some kind to the New Company. For it must be a viable, healthy unit, as able to compete as Pacific Northwest was when it was acquired by El Paso.
15
(3) Control of El Paso. The divestiture decree provides that El Paso is to cause the formation of the New Company, whose chief executive shall be approved by El Paso, the Government, and the court. The new company is to file an application with the Federal Power Commission 'at the earliest practicable date' requesting the issuance of a certificate of public convenience and necessity authorizing it to acquire, own, and operate the properties to be received from El Paso.5 When the necessary certificates, authorizations, and orders are obtained from the FPC, El Paso is to transfer to the New Company the properties and assets set forth in the plan of divestiture, generally those which El Paso received from Pacific Northwest. In return, the New Company is to assume certain of El Paso's indebtedness and issue to El Paso all its common stock. El Paso is to transfer the New Company stock to the New Company's chief executive, as voting trustee. The New Company's chief executive shall release the stock only in accordance with the plan for divestment of El Paso's interest in the stock. Under the plan, El Paso is ordered completely to divest itself of all interest in the New Company stock within three years after the transfer of the assets to the New Company. Alternate methods of divestment are provided. (1) El Paso may, within 18 months of the transfer, distribute at least 80% of the shares to holders of El Paso common stock who are willing to exchange their El Paso shares for New Company shares, and who shall own no other El Paso shares immediately after the exchange. The remainder of New Company stock would be disposed of by a public offering. (2) If El Paso does not dispose of the New Company stock under the first alternative, it is to dispose of the New Company stock 'by one or more sales to the public.' At such public offering no El Paso officer or director and no owner of El Paso's capital stock, in excess of one-half of one percent of the total shares outstanding, shall be permitted to purchase New Company stock.6
16
Thus the El Paso-Pacific Northwest combination will not begin to be severed until the regulatory approvals have been obtained. Complete divestiture is not required until three years after the transfer of assets. An earlier divestiture is permissible, but divestiture is mandatory only after three years. During the interregnum between the entry of the decree and the regulatory approvals, and between the transfer of assets and El Paso's eventual disposition of the New Company stock, El Paso will continue to reap the benefits of the illegal combination. Moreover, prior to the eventual disposition of the New Company stock, all the stock is to be voted by the New Company's chief executive. The chief executive is to be approved by El Paso, and El Paso is the beneficial owner of the stock to be voted by him. Even though the chief executive is subject to the ultimate control and supervision of the District Court, there is danger that he may vote the New Company stock in a manner calculated to perpetuate the very conditions which led us to order severance of the illegal combination.
17
Even after the mandatory disposition of the new company stock there is considerable danger that El Paso interests may end up controlling the New Company. The decree, to be sure, provides that neither El Paso officers and directors nor owners of more than one-half of one percent of El Paso stock shall purchase New Company stock at a public offering. But the decree does not prohibit members of the families of such prohibited purchasers from obtaining New Company stock. Further, under the terms of the decree, it would be possible for a group of El Paso stockholders, each with less than one-half of one percent of El Paso stock, to acquire at the initial public offering enough New Company stock substantially to influence or even to dominate the New Company. Or, such a group could combine with the families of prohibited purchasers in order to control the New Company. After the exchange or public offering, there is no restriction on the number of New Company shares El Paso shareholders may acquire. Thus, there is a danger that major El Paso stockholders may, subsequent to the exchange or public offering, purchase large blocks of New Company stock and obtain effective control. Thus, there has been no studied attempt to ensure the swift severance of the illegal combination or to make sure that the New Company's stock does not end up controlled by El Paso interests. Disposition of all of the stock with all convenient speed is necessary and conditions must be imposed to make sure that El Paso interests do not acquire a controlling interest. For if they do, the New Company might well be only El Paso under the masquerade of a beard.
18
The proposed decree bypasses completely the prospect of an outright purchase of the assets of the New Company or its stock by outside interests. Two purchasers apparently are anxious and eager; and before the United States knuckled under to El Paso and 'settled' this litigation, it represented to the District Court that a 'sale to a third party is both a desirable and possible alternative to the El Paso plan.' No alternative of that kind was chosen. El Paso carried the day, obtained a decree that promises to perpetuate rather than terminate this unlawful merger, and that threatens to turn loose on the public a New Company unable to maintain the competitive role that Pacific Northwest filled before this illegal transaction took place.
19
The convenience of El Paso would be the easier choice. The enforcement of our mandate and § 7 of the Clayton Act is the harder one; but that is the criterion we follow.
20
The evil with which the proposed decree is permeated reflects the attitude or philosophy of the District Court which was frankly stated after our remand as follows:
21
'The Court: You see, what this plan proposes is a division of the country, a division of the market, a division of the reserves, one area to New Company and another area to El Paso. That's what the root of this plan is.
22
'Now, if you're going to get New Company down here in competition in Southern California from the San Juan Basin, you'd upset the whole scheme. To even that situation up, you're going to have to put El Paso up in the Northwest in competition there; and that's kind of ridiculous thing—long pipelines from these various sources.
23
'It seems to me to make a lot of sense that New Company operating in the Northwest from very much closer Canadian reserves, and Northwest reserves, and El Paso down in the Southwest, with reserves in the San Juan Basin, serving the Southern California area, among some other areas. That seems to me to make a lot of sense.'
24
The proposed decree in its various ramifications does precisely that. It therefore does the opposite of what our prior opinion and mandate commanded. Once more, and nearly three years after we first spoke, we reverse and remand, with directions that there be divestiture without delay and that the Chief Judge of the Circuit or the Judicial Council of the Circuit (28 U.S.C. § 332) assign a different District Judge to hear the case. Cf. United States v. Hatahley, 10 Cir., 257 F.2d 920, 926, 79 A.L.R.2d 668 and its sequel, United States v. Ritter, 10 Cir., 273 F.2d 30, 32; Occidental Petroleum Corp. v. Chandler, 10 Cir., 303 F.2d 55, 57; Texaco, Inc. v. Chandler, 10 Cir., 354 F.2d 655, 657.
25
Reversed.
26
Mr. Justice WHITE and Mr. Justice FORTAS took no part in the consideration or decision of these cases.
27
Mr. Justice STEWART, whom Mr. Justice HARLAN joins, dissenting.
28
The question presented by these appeals, and the only question, is whether the District Court erred in denying the appellants' motions to intervene as parties. Because I think the Court's answer to that question is wrong, and because I think the Court has gone further astray in undertaking to address itself to issues which are not here for adjudication, I respectfully dissent.
29
Intervention of right is governed by Federal Rule of Civil Procedure 24(a). At the time the District Court passed on appellants' motions to intervene,1 that Rule provided as follows:
30
'Rule 24. Intervention
31
'(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant if or may be bound by a judgment in the action; or (3) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property which is in the custody or subject to the control or disposition of the court or an officer thereof.'
32
I gather it is common ground that neither 24(a)(1) nor 24(a)(2) applies to these cases. No appellant claims any statutory right to intervene under 24(a) (1). And it is clear that no appellant has any right to intervene under 24(a) (2), for in order to intervene under that provision, the applicant for intervention must show that he 'may be bound' by the judgment in the Government's action in a res judicata sense. Sam Fox Publishing Co. v. United States, 366 U.S. 683, 81 S.Ct. 1309, 6 L.Ed.2d 604; Sutphen Estates, Inc. v. United States, 342 U.S. 19, 72 S.Ct. 14, 96 L.Ed. 19. See Credits Commutation Co. v. United States, 177 U.S. 311, 20 S.Ct. 636, 44 L.Ed. 782. And it is settled that the judgment in a government suit has no res judicata effect on private antitrust claims. Sam Fox Publishing Co. v. United States, supra.
33
The Court, however, finds that the State of California and Southern California Edison Co. have an absolute right to intervene under 24(a)(3). I disagree for several reasons.
34
Analysis of the Rule's proper scope must begin with an historical examination of intervention practice, for, as the Court has stated, the Rule constitutes a 'codification of general doctrines of intervention.' Missouri-Kansas Pipe Line Co. v. United States, 312 U.S. 502, 508, 61 S.Ct. 666, 668, 85 L.Ed. 975.2 Intervention to assert an interest in property within the court's control or custody derives from the English doctrine of appearance pro interesse suo. When a court acquired in rem jurisdiction over property, by admiralty libel, sequestration, receivership, or other process, a person claiming title or some other legal or equitable interest was allowed to come in to assert his claim to the property. Otherwise, he would have been subjected to the obvious injustice of having his claim erased or impaired by the court's adjudication without ever being heard. Elements of this procedure were gradually assimilated in this country, e.g., Pennock v. Coe, 23 How. 117, 16 L.Ed. 436, and provided the foundation for intervention doctrine in the federal courts.3
35
Various generalizations about the nature of the property interest that will support intervention of right under this doctrine have been attempted. This Court has stated that the requisite interest must be 'of such a direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment.' Smith v. Gale, 144 U.S. 509, 518, 12 S.Ct. 674, 676, 36 L.Ed. 521.4 Other courts have spoken of 'a legal interest as distinguished from interests of a general and indefinite character', Radford Iron Co. v. Appalachian Electric Power Co., 62 F.2d 940, 942 (C.A.4th Cir.), cert. denied, 289 U.S. 748, 53 S.Ct. 691, 77 L.Ed. 1494, or 'one that is known and protected by the law, sufficient and of the type to be denominated a lien, legal or equitable', Gross v. Missouri & A. Ry. Co., 74 F.Supp. 242, 249 (D.C.W.D.Ark.). These formulations are of limited use in deciding particular cases. More illuminating are examples of particular interests which have been held to support intervention of right under the established practice. These have included the claim of ownership in attached property,5 the claim of a part owner to personal property being foreclosed under a mortgage,6 a mortgage line on a leasehold interest subjected to forfeiture,7 and the claim of the purchaser of land involved in foreclosure proceedings against the seller.8 Interests like these have continued to provide a familiar basis for intervention of right since the promulgation of Rule 24(a)(3).9
36
The other traditional basis for intervention under 24(a)(3) derives from interpleader practice; when a number of persons possess claims to a fund which are or may be mutually exclusive, intervention is allowed a claimant. Thus, in Oliver v. United States, 156 F.2d 281 (C.A.8th Cir.), the United States had acquired certain land and deposited the purchase price in court to be divided among the various owners. A title insurance company which asserted a claim to the proceeds, based on services rendered to the sellers, was allowed to intervene.10
37
Under Rule 24(a)(3) the federal courts have sometimes allowed intervention even though the interest likely to be 'adversely affected' was not one that would be recognized under traditional interpretations of the pro interesse suo or interpleader types of intervention. A representative case is Formulabs, Inc. v. Hartley Pen Co., 275 F.2d 52 (C.A.9th Cir.), cert. denied, 363 U.S. 830, 80 S.Ct. 1600, 4 L.Ed.2d 1524. The applicant for intervention had licensed a secret manufacturing process to one of the parties, and the other party was seeking to apply discovery to the process. Finding that the trade secret was 'property' subject to the court's control and that the secrecy which was the heart of the applicant's interest in that property might be totally destroyed, the court allowed intervention under 24(a)(3).
38
But the claims of California and the Southern California Edison Co. in these cases lie far beyond the reach of even the most imaginable construction of 24(a)(3). To be sure, the assets of El Paso are 'property which is in the custody or subject to the control or disposition of the court' for purposes of the Rule. Sutphen Estates, Inc. v. United States, 342 U.S. 19, 72 S.Ct. 14, 96 L.Ed. 19. But the 'interest' in these assets relied upon by the appellants to justify intervention is merely their preference that certain of the assets, particularly the San Juan Basin reserves, end up in the hands of New Company rather than El Paso, on the theory that such an allocation may be conducive to greater gas competition in California. These general and indefinite interests do not even remotely resemble the direct and concrete stake in litigation required for intervention of right. The Court's decision not only overturns established general principles of intervention, but, as will be shown below in detail, also repudiates a large and long-established body of decisions specifically, and correctly, denying intervention in government antitrust litigation.
39
This Court is all too familiar with the fact that antitrust litigation is inherently protracted. Indeed, it is just such delay which seems to so concern the Court in this case. But nothing could be better calculated to confuse and prolong antitrust litigation than the rule which the Court today announces. The entrance of additional parties into antitrust suits can only serve to multiply trial exhibits and testimony, and further confound the attempt to bring order out of complicated economic issues. For these reasons, federal courts have been most reluctant to grant intervention under 24(a)(3) even in private antitrust litigation. For example, in Commonwealth Edison Co. v. Allis-Chalmers Mfg. Co., 315 F.2d 564 (C.A.7th Cir.), cert. denied, Illinois v. Commonwealth Edison Co., 375 U.S. 834, 84 S.Ct. 64, 11 L.Ed.2d 64, the State of Illinois, representing consumers' interests in a possible rate rebate, was denied intervention in a suit brought by a utility charging equipment manufacturers with price fixing.11
40
The reasons for denying intervention are even stronger when intervention is sought in an antitrust suit brought by the Government. To the extent that the would-be intervenor seeks to press his own private antitrust claims against the defendant, intervention must be denied because Congress has carefully provided separate statutory procedures for private and public antitrust litigation.12 As the Court observed in United States v. Borden Co., 347 U.S. 514, 518—519, 74 S.Ct. 703, 706, 98 L.Ed. 903, the thrust of the Clayton Act 'is sharply to distinguish between Government suits, either criminal or civil, and private suits for injunctive relief or for treble damages. Different policy considerations govern each of these. They may proceed simultaneously or in disregard of each other.'13 The Court has accordingly approved the 'unquestionably sound policy of not permitting private antitrust plaintiffs to press their claims against alleged violators in the same suit as the Government'. Sam Fox Publishing Co. v. United States, 366 U.S. 683, at 693, 81 S.Ct. 1309, at 1315, 6 L.Ed.2d 604. A fortiori, intervention is improper when a private party appears in order to vindicate his theory of the public interest in an action brought by the Government. For as the Court has consistently recognized, it is the 'United States which must alone speak for the public interest' in antitrust litigation. Buckeye Coal & Ry. Co. v. Hocking Valley Ry. Co., 269 U.S. 42, 49, 46 S.Ct. 61, 63, 70 L.Ed. 155.14 The appellants here seek intervention to press their own version of what the public interest in gas competition in California requires. But the determination of what the public interest requires is the statutory duty and responsibility of the Government. The law explicitly requires that suits brought by the Government for injunctive relief shall be 'under the direction of the Attorney General.' 15 U.S.C. §§ 4 and 25. That statutory command is violated when private parties are allowed to intervene and control public suits. The Government's discharge of its duties would be completely undermined if its antitrust litigation were cluttered with a myriad of private volunteers, all pressing their own particular interpretations of the 'public interest' against the defendant, the Government, and each other.
41
It has been the consistent policy of this Court to deny intervention to a person seeking to assert some general public interest in a suit in which a public authority charged with the vindication of that interest is already a party. Thus, in In re Engelhard & Sons Co., 231 U.S. 646, 34 S.Ct. 258, 58 L.Ed. 416, intervention was denied to a subscriber seeking to enter a suit between a municipality and a telephone utility involving the validity of the city's rate ordinance and the disposition of rate overcharges. Similarly, in City of New York v. Consolidated Gas Co. of New York, 253 U.S. 219, 40 S.Ct. 511, 64 L.Ed. 870, and City of New York v. New York Telephone Co., 261 U.S. 312, 43 S.Ct. 372, 67 L.Ed. 673, the City of New York was not allowed to intervene on behalf of consumer residents of the city in litigation between state authorities and public utilities over the validity of state rate regulation. The wise principle of those decisions is reflected in many other federal cases decided both before and after the adoption of Rule 24(a)(3).15
42
The applicability of this principle to intervention in antitrust suits brought by the Government was early recognized by this Court. Ex parte Leaf Tobacco Board, 222 U.S. 578, 32 S.Ct. 833, 56 L.Ed. 323, denied intervention to enterprises that sold tobacco to defendants in an antitrust suit brought by the Government. From that time since, we have consistently refused to recognize the right to intervene in government antitrust suits.16 Allen Calculators, Inc. v. National Cash Register Co., 322 U.S. 137, 64 S.Ct. 905, 88 L.Ed. 1188; Partmar Corp. v. United States, 338 U.S. 804, 70 S.Ct. 69, 94 L.Ed. 486; Wometco Television & Theatre Co. v. United States, 355 U.S. 40, 78 S.Ct. 120, 2 L.Ed.2d 71; Westinghouse Broadcasting Co. v. United States, 364 U.S. 518, 81 S.Ct. 293, 5 L.Ed.2d 264, dismissing appeal from United States v. Radio Corp. of America, D.C., 186 F.Supp. 776; Sam Fox Publishing Co. v. United States, supra; Bardy v. United States, 371 U.S. 576, 83 S.Ct. 547, 9 L.Ed.2d 537.17 And we have upheld denial of intervention to a private party who claimed that a decree negotiated between the Government and an antitrust defendant failed to carry out the mandate of this Court. Ball v. United States, 338 U.S. 802, 70 S.Ct. 61, 94 L.Ed. 486.
43
The results which follow from the Court's rejection of the practical wisdom embodied in these decisions are apparent. There were over 20 applications to intervene in the decree proceedings below. The Court's construction of 24(a) (3) would require the District Court to grant most if not all of them. El Paso gas goes to millions of consumers, and under the Court's decision any or all of them are entitled to intervene as of right. And there is nothing in the Court's opinion which suggests that this right to intervene is limited to litigation over remedy. If consumers and others have an interest in making sure that a government antitrust decree meets their standards of effectiveness, they have an even greater interest in insuring that a violation is found. Thus the Court's reasoning gives any consumer a right to intervene in government antitrust litigation at the very outset. The Court invites a scope of intervention that will make the delays in this case seem mercifully short.
44
The Court's decision would not be of such concern, nor merit so much discussion, if it were simply limited to 24(a)(3), a provision which has been superseded. But the same approach which creates a right to intervene for California and the Southern California Edison Co. under the old Rule 24(a)(3) appears in the Court's construction of the new Rule 24, under which it says Cascade has a right to intervene. The new Rule 24(a)(2) replaces the previous Rule 24(a)(2) and (3), and provides for intervention of right:
45
'(W)hen the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.'
46
This and other amendments to the Federal Rules of Civil Procedure were promulgated by this Court to 'take effect on July 1, 1966, and * * * govern all proceedings in actions brought thereafter and also in all further proceedings in actions then pending * * *.' 383 U.S. 1031. Since the District Court denied Cascade's motion to intervene in 1965, before the effective date of the amended Rule, the new Rule was inapplicable to Cascade's motion.18 But even if the new Rule were applicable, neither Cascade nor the other appellants could claim intervention of right under it.
47
The purpose of the revision was to remedy certain logical shortcomings in the construction of the former 24(a)(2), see Sam Fox Publishing Co. v. United States, supra, and to give recognition to decisions such as Formulabs, Inc. v. Hartley Pen Co., supra, which had expanded intervention under the former 24(a) (3) beyond the strict pro interesse suo model it embodied.19 But an applicant is still required to have an 'interest' in the litigation sufficiently direct and immediate to justify his entry as a matter of right. The remote and general concerns that appellants State of Colifornia and Southern California Edison Co. have with this government suit have already been discussed. And Cascade's interest is even more insubstantial. While it purchases gas from El Paso in Oregon, it seeks intervention to vindicate gas competition in California.20 Even if it should be thought that the amended Rule might encompass such remote interests in some conceivable circumstances, it is clear that such interests may never justify intervention of right in public antitrust litigation, where Congress has carefully entrusted the conduct of government suits to the 'direction of the Attorney General.' But even if Cascade should pass this hurdle, it would also have to show that there was a failure of 'adequate representation' by the Justice Department in this case.
48
The Court states that the Government 'knuckled under to El Paso' and has 'fallen far short of representing' Cascade's interest. Since the interest that Cascade claims to be representing is that of the public, the Court is charging the Justice Department with dereliction of duty or serious incompetence. I regard this charge as wholly unjustified. The Government did settle for less than all the relief that it sought at the outset. But this is a wholly familiar phenomenon of negotiation. Bargaining for consent decrees and stipulated remedies is a normal and necessary element in the Government's enforcement of the antitrust laws. Moreover, it is perfectly conceivable that in the course of negotiations the Government may become aware of errors in its opening position. If, as the Court's opinion seems to suggest, the Government is required to press its original negotiating position unceasingly and to the bitter end, the number of cases which the Government can afford to undertake will be sharply reduced, and the enforcement of the antitrust laws will ultimately become less effective. And of course the delay in antitrust litigation, which so concerns the Court, will markedly increase.
49
The Court's standard of 'adequate representation' comes down to this: If, after the existing parties have settled a case or pursued litigation to the end, some volunteer comes along who disagrees with the parties' assessment of the issues or the way they have pursued their respective interests, intervention must be granted to that volunteer as of right. This strange standard is not only unprecedented and unwise, it is also unworkable.
50
The requirement of inadequate representation by existing parties as a precondition of the right to intervene under the new Rule 24 is obviously an adaptation of the similar standard contained in the former 24(a)(2). Decisions under that standard allowed intervention of right when the intervenor could show a conflict of interest between himself and the party supposed to represent his interest,21 a complete failure of representation by existing parties,22 or collusion or the likelihood of collusion between them.23 Mere tactical disagreement over how litigation should be conducted is obviously insufficient to support intervention of right.24 In ignoring these precedents, the Court also overlooks the sound policies which underlie them. The Court's approach draws judges into the adversary arena and forces them into the impossible position of trying to second-guess the parties in the pursuit of their own interests. It is also wasteful and productive of delay, because under this strange standard a person's right to intervene in litigation cannot be ascertained until that litigation is concluded and the existing parties' conduct evaluated.
51
Wrong as the Court's approach is with respect to litigation generally, it is even more wrong when a would-be intervenor seeks to challenge the adequacy of the Government's representation of the public interest. The separation of powers in our federal system generates principles that make it peculiarly inappropriate for courts to assume the role of supervision over policy decisions of the Executive. Yet the Court presumes to tell the Justice Department that it made tactical errors in conducting litigation, failed in its assessment of the public interest, and cannot settle a lawsuit which it has brought. This Court does not have the constitutional power to secondguess decisions of the Attorney General made within the bounds of his official discretion. That is the responsibility of the President and, ultimately, the electorate. In words appropriate here, we long ago stated in the context of an attack on the Government's settlement of an antitrust case: '* * * we do not find in the statutes defining the powers and duties of the Attorney General any such limitation on the exercise of his discretion as this contention involves. His authority to make determinations includes the power to make erroneous decisions as well as correct ones.' Swift & Co. v. United States, 276 U.S. 311, 331—332, 48 S.Ct. 311, 317, 72 L.Ed. 587. The Court today gives only lip service to these principles. It states that 'We do not question the authority of the Attorney General to settle suits after, as well as before, they reach here.' Ante, 386 U.S. 136, 87 S.Ct. 937. But it then proceeds to take the direction of a government lawsuit out of the hands of the Attorney General and into its own.
52
The Court relies on the fact that we have previously rendered a judgment in this case and cites dictum from the opinion in United States v. E. I. du Pont & Co., 366 U.S. 316, 81 S.Ct. 1243, 6 L.Ed.2d 318, to justify the extraordinary course it takes. But in the absence of outright fraud, it has never been thought that the fact that parties have initially resorted to the courts gives judges power to set aside later settlement agreements and impose others on the parties. And certainly when it is the Executive Branch of the Government that has made the settlement as representative of the public interest, only the grossest bad faith or malfeasance on its part could possibly support such a step. Either the Court is saying the Government was guilty of such misconduct—a charge totally without support in the record—or the Court has grossly overreached the permissible limit of judicial power.
53
Not only concern for the constitutional position of this Court, but more directly pragmatic considerations underlie my disagreement with today's decision. To permit volunteers to intervene and second-guess the Justice Department is especially inappropriate when the issues involved, like those in the antitrust field, require technical experience and an assessment and balancing of interests essentially administrative and political. Formulation of effective and consistent government antitrust policy is unlikely to result from 'piecemeal intervention of a multitude of individual complainants'25 in litigation brought by the Government. Less than six years ago we fully recognized this principle:
54
'* * * sound policy would strongly lead us to decline (the) invitation to assess the wisdom of the Government's judgment in negotiating and accepting the * * * consent decree, at least in the absence of any claim of bad faith or malfeasance on the part of the Government in so acting.' Sam Fox Publishing Co. v. United States, supra, 366 U.S. at 689, 81 S.Ct. at 1312, 6 L.Ed.2d 604.26
55
Today the Court ignores all this and grants intervention of right to any volunteer claiming to speak for the public interest whenever he can convince a court that the Government might have used bad judgment in conducting or settling a lawsuit. I think this decision, which undermines the Justice Department in the discharge of its responsibilities, and invites obstruction and delay in the course of public litigation, is unsupported by the provision of old Rule 24, new Rule 24, or any other conceivably tolerable standard governing intervention as of right. The District Court did not err in denying intervention to the appellants,27 and these appeals should therefore be dismissed.28
56
But even if I am completely wrong, and the Court is right in concluding that the District Court erred in denying appellants the right to intervene, the proper course would be simply to remand the case to the District Court so that the appellants' contentions may be met by the Government or El Paso and passed on by a trial court that is intimately familiar with the massive record in this case. Instead, the Court brushes aside the 'threshold' question of appellants' right to intervene in a few pages and devotes most of its opinion to pronouncements on gas reserves, delivery contracts, and other intricacies of gas competition in the western United States. These issues were never the subject of adversary proceedings in the District Court. They were never resolved through findings by the District Court. Appellees did not directly brief or argue them before this Court. On the basis of what are in effect ex parte criticisms of the decree entered below, the Court lays down 'guidelines' with respect to complex issues which will shape the future of an important segment of this Nation's commerce. In so doing the Court roams at large, unconfined by anything so mundane as a factual record developed in adversary proceedings.
57
'The obvious must be restated. We do not sit to draft antitrust decrees de novo. This is a court of appeal, not a trial court. We do not see the witnesses, sift the evidence in detail, or appraise the course of extended argument * * *. In short, this Court does not partake of the procedure and is not charged with the responsibility demanded of the court entrusted with the task of devising the details of a decree appropriate for the governance of a vastly complicated situation arising out of unique circumstances.' United States v. E. I. du Pont & Co., 366 U.S. 316, 371, 81 S.Ct. 1243, 1273, 6 L.Ed.2d 318 (dissenting opinion).
58
The Court has decided this case on little more than repugnance for 'the attitude or philosophy of the District Court' and the unjustified and extraordinarily opprobrious conclusion that the Government 'knuckled under.' This is not a happy foundation for radical extensions of intervention doctrine. And it is not a proper basis for deciding how stock in the New Company should be marketed, or how gas reserves in New Mexico should be divided. In its zeal to censure the District Judge and reprimand the Justice Department, the Court has reshed headlong into a jurisprudential quagmire far more dangerous than the 'evil' it purports to discern in the decree entered by the trial court.
59
Finally, I must note my emphatic disagreement with the Court's extraordinary action in directing that further proceedings in this case must be conducted by a different district judge. Federal reviewing courts have taken this serious step only in the rarest circumstances, when the trial judge's personal or emotional involvement in a case has been demonstrated. See Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11; Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767; Occidental Petroleum Corp. v. Chandler, 303 F.2d 55 (C.A.10th Cir.), cert. denied, 372 U.S. 915, 83 S.Ct. 718, 9 L.Ed.2d 722. No such involvement by the District Judge in this case is remotely suggested by the record. Nobody has requested his replacement at at any stage of the proceedings. For this Court, on its own motion, to disqualify a trial judge in the middle of a case because it disagrees with his 'philosophy' is not only unprecedented, but incredible.
1
California v. Federal Power Commission, 369 U.S. 482, 82 S.Ct. 901, 8 L.Ed.2d 54, involved another aspect of the same merger; and we held that the Commission should not have approved it until the District Court decided whether it violated § 7 of the Clayton Act, 38 Stat. 731, 15 U.S.C.A. § 18.
2
See Board of Comm'rs of Sweetwater County, Wyo. v. Bernardin, 10 Cir., 74 F.2d 809, 816; Dowdy v. Hawfield, 88 U.S.App.D.C. 241, 242, 189 F.2d 637, 638.
3
In 1966 the Advisory Committee when making a revision of Rule 24(a) said:
'Rule 24(a)(3) as amended in 1948 provided for intervention of right where the applicant established that he would be adversely affected by the distribution or disposition of property involved in an action to which he had not been made a party. Significantly, some decided cases virtually disregarded the language of this provision. Thus Professor Moore states: 'The concept of a fund has been applied so loosely that it is possible for a court to find a fund in almost any in personam action.' 4 Moore's Federal Practice 24.09(3), at 55 (2d ed. 1962), and see, e.g., Formulabs, Inc. v. Hartley Pen Co., 9 Cir., 275 F.2d 52 (9th Cir. 1960). This development was quite natural, for Rule 24(a)(3) was unduly restricted. If an absentee would be substantially affected in a practical sense by the determination made in an action, he should, as a general rule, be entitled to intervene, and his right to do so should not depend on whether there is a fund to be distributed or otherwise disposed of. Intervention of right is here seen to be a kind of counterpart to Rule 19(a)(2) (i) on joinder of persons needed for a just adjudication: where, upon motion of a party in an action, an absentee should be joined so that he may protect his interest which as a practical matter may be substantially impaired by the disposition of the action, he ought to have a right to intervene in the action on his own motion. See Louisell & Hazard, Pleading and Procedure: State and Federal 749—50 (1962).' Moore, Federal Practice (1966 Spec. Supp.), c. 24, pp. 1—2. (Emphasis supplied.)
4
For example, one contract relates to reciprocal gas gathering between the New Company and El Paso in the San Juan Basin. Prior to the merger El Paso and Pacific Northwest entered into a contract providing that they would develop gathering lines in the basin cooperatively, and that whichever company made greater use of the other's gathering lines would pay a gathering charge of 1.375¢ per Mcf. of extra gas. El Paso did much more gathering for Pacific Northwest than Pacific Northwest did for El Paso. The proposed agreement increases the gathering charge to 4.5 . The intervenors claim that the increased rate will substantially increase the New Company's costs and impair its ability to compete.
5
We are informed that the New Company's chief executive has been approved and that the New Company has applied to the Federal Power Commission for certification. The FPC proceedings have been continued until this Court has decided this appeal.
6
El Paso is also enjoined from having as an officer or director any person who is also an officer, director, or employee of the New Company or who owns any capital stock of the New Company or whose immediate family owns more than one-tenth of one percent of the stock of the New Company.
1
The Rule has since been amended. See p. 153, infra.
2
This statement is confirmed by the Rules Advisory Committee, which observed that the Rule 'amplifies and restates the present federal practice at law and in equity.' Advisory Committee on Rules for Civil Procedure, Notes, 25 (March 1938).
3
For a discussion of the English and early American practice, see 4 Moore, Federal Practice 24.03; 2 Street, Federal Equity Practice §§ 1364—1370 (1909).
4
Quoting with approval Horn v. Volcano Water Co., 13 Cal. 62, 69. Subsequent federal decisions following this formulation include Pure Oil Co. v. Ross, 170 F.2d 651, 653 (C.A.7th Cir.); Dowdy v. Hawfield, 88 U.S.App.D.C. 241, 242, 189 F.2d 637, 638, cert. denied, 342 U.S. 830, 72 S.Ct. 54, 96 L.Ed. 628.
5
Krippendorf v. Hyde, 110 U.S. 276, 4 S.Ct. 27, 28 L.Ed. 145.
6
Osborne & Co. v. Barge, 30 F. 805 (C.C.N.D.Iowa).
7
See United States v. Radice, 40 F.2d 445 (C.A.2d Cir.).
8
Gaines v. Clark, 51 App.D.C. 71, 275 F. 1017.
9
E.g., Plitt v. Stonebraker, 90 U.S.App.D.C. 256, 195 F.2d 39 (intervention granted to creditor asserting security interest in goods seized by marshal).
10
For expansive interpretations of interpleader-type intervention, see Barnes v. Alexander, 232 U.S. 117, 34 S.Ct. 276, 58 L.Ed. 530; Peckham v. Family Loan Co., 212 F.2d 100 (C.A.5th Cir.). But see Vaughan v. Dickinson, 19 F.R.D. 323 (D.C.W.D.Mich.), aff'd, Duffy v. Vaughan, 237 F.2d 168 (C.A.6th Cir.).
11
Cf. American Louisiana Pipe Line Co. v. Gulf Oil Corp., 158 F.Supp. 13 (D.C.E.D.Mich.) (county not allowed to intervene on behalf of consumers in private gas contract dispute). See also Philadelphia Electric Co. v. Westinghouse Electric Corp., 308 F.2d 856 (C.A.3d Cir.), cert. denied, Pennsylvania Public Utility Comm. v. Westinghouse Elec. Corp., 372 U.S. 936, 83 S.Ct. 883, 9 L.Ed.2d 767.
12
See 26 Stat. 209 (1890), as amended, 15 U.S.C. § 4; 38 Stat. 731 (1914), 15 U.S.C. § 15; 69 Stat. 282 (1955), 15 U.S.C. § 15a; 38 Stat. 736, as amended, 737, 15 U.S.C. §§ 25, 26; 32 Stat. 823 (1903), as amended, 15 U.S.C. §§ 28, 29.
13
Quoting with approval United States v. Bendix Home Appliances, 10 F.R.D. 73, 77 (D.C.S.D.N.Y.).
14
In United States v. Borden Co., 347 U.S. 514, 518, 74 S.Ct. 703, 706, 98 L.Ed. 903, the Court stated: 'The private-injunction action, like the treble-damage action under § 4 of the Act, supplements Government enforcement of the antitrust laws; but it is the Attorney General and the United States district attorneys who are primarily charged by Congress with the duty of protecting the public interest under these laws. The Government seeks its injunctive remedies on behalf of the general public; the private plaintiff, though his remedy is made available pursuant to public policy as determined by Congress, may be expected to exercise it only when his personal interest will be served.'
15
O'Connell v. Pacific Gas & Electric Co., 19 F.2d 460 (C.A.9th Cir.) (intervention denied to retepayer protesting proposed settlement of litigation between utility and municipality); Radford Iron Co. v. Appalachian Electric Power Co., 62 F.2d 940 (C.A.4th Cir.), cert. denied, 289 U.S. 748, 53 S.Ct. 691, 77 L.Ed. 1494 (business injured by utility's proposed dam denied intervention in suit between utility and FPC); MacDonald v. United States, 119 F.2d 821 (C.A.9th Cir.), aff'd as modified Great Northern Ry. Co. v. United States, 315 U.S. 262, 62 S.Ct. 529, 86 L.Ed. 836 (intervention under Rule 24 denied in suit over mineral rights between United States and railroad to one claiming such rights under patent from United States); Reich v. Webb, 336 F.2d 153 (C.A.9th Cir.), cert. denied, 380 U.S. 915, 85 S.Ct. 890, 13 L.Ed.2d 800 (depositors denied 24(a)(3) intervention in proceeding by Federal Home Loan Bank Board against savings and loan association officers); Gross v. Missouri & A. Ry. Co., 74 F.Supp. 242 (D.C.W.D.Ark) (24(a)(3) intervention denied municipalities served by railroad involved in reorganization proceedings to which State was a party); Butterworth v. Dempsey, 229 F.Supp. 754, 798—799 (D.C.Conn.), aff'd, Town of Franklin v. Butterworth 378 U.S. 562, 84 S.Ct. 1913, 12 L.Ed.2d 1036 (intervention under 24(a)(3) denied overrepresented towns in reapportionment suit brought against state authorities).
16
Intervention in this Court was allowed in United States v. Terminal R. Ass'n of St. Louis, 236 U.S. 194, 35 S.Ct. 408, 59 L.Ed. 535, but there the 'intervenors' were in the practical status of defendants.
Missouri-Kansas Pipe Line Co. v. United States, 312 U.S. 502, 61 S.Ct. 666, 85 L.Ed. 975, relied upon by the Court, is completely inapposite. Panhandle Eastern Pipe Line Co. was a competitor of defendants charged by the Government with improperly exercising control over Panhandle to weaken its threat as a competitor. A consent decree was negotiated to protect Panhandle's independence. The decree provided for retention of jurisdiction by the court to enter such 'further orders and decrees' as were necessary to carry out its purpose, and stated that 'Panhandle Eastern, upon proper application, may become a party hereto' to protect its rights under the decree. When the Government later sought modifications of the decree, we held that the decree gave Panhandle the right to intervene. The Court carefully noted that this right to intervene was bottomed solely on the specific provisions of the decree and not general principles of intervention: 'Its foundation is the consent decree. We are not here dealing with a conventional form of intervention * * *.' 312 U.S., at 506, 61 S.Ct. at 667. The Court concluded, 'Therefore, the codification of general doctrines of intervention contained in Rule 24(a) does not touch our problem.' 312 U.S., at 508, 61 S.Ct. at 668.
17
The policy behind these decisions was stated in United States v. American Society of Composers, Authors and Publishers, 341 F.2d 1003 (C.A.2d Cir.), cert. denied, 382 U.S. 877, 86 S.Ct. 160, 15 L.Ed.2d 119, in which ASCAP licensees were denied intervention to assert that ASCAP had violated a decree in an antitrust suit brought by the Government: 'The United States in instituting antitrust litigation seeks to vindicate the public interest and, in so doing, requires continuing control over the suit * * *.' 341 F.2d, at 1008.
18
In Klapprott v. United States, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266, the petitioner sought to reopen a default judgment denaturalizing him, relying on amendments to Rule 60(b). Several Justices thought that the petitioner should be able to obtain relief under the amended Rule even though the District Court had denied the petitioner's application before the effective date of the amendments. Cascade's interest here bears no resemblance to the extraordinary hardship and injustice claimed by the petitioner in Klapprott, where it could be persuasively argued that it was 'more consonant with equitable considerations to judge the case on the basis of the Rule now in force, even though the lower court did not have the opportunity to apply it.' 335 U.S., at 629, 69 S.Ct. at 397 (dissenting opinion).
19
See Notes of Advisory Committee on Rules, Fed.Rule Civ.Proc. 24, 28 U.S.C.App. Rule 24 (1964 ed., Supp. II).
20
The FPC will protect Cascade's existing supply of gas when New Company applies for certification. See, e.g., Michigan Consolidated Gas Co. v. FPC, 108 U.S.App.D.C. 409, 283 F.2d 204, cert. denied, 364 U.S. 913, 81 S.Ct. 276, 5 L.Ed.2d 227.
21
Pyle-National Co. v. Amos, 172 F.2d 425 (C.A.7th Cir.); Mack v. Passaic Nat. Bank & Trust Co., 150 F.2d 474, 154 F.2d 907 (C.A.3d Cir.); In re Standard Power & Light Corp., 48 F.Supp. 716 (D.C.Del.).
22
Pellegrino v. Nesbit, 203 F.2d 463 (C,.a.9th Cir.).
23
Cuthill v. Ortman-Miller Machine Co., 216 F.2d 336 (C.A.7th Cir.); Park & Tilford, Inc. v. Schulte, 160 F.2d 984 (C.A.2d Cir.), cert. denied, 332 U.S. 761, 68 S.Ct. 64, 92 L.Ed. 347; Klein v. Nu-Way Shoe Co., 136 F.2d 986 (C.A.2d Cir.); Molybdenum Corp. of America v. International Mining Corp., 32 F.R.D. 415 (D.C.S.D.N.Y.); Twentieth Century-Fox Film Corp. v. Jenkins, 7 F.R.D. 197 (D.C.S.D.N.Y.).
24
Alleghany Corp. v. Kirby, 344 F.2d 571 (C.A.2d Cir.), cert. dismissed, 384 U.S. 28, 86 S.Ct. 1250, 16 L.Ed.2d 335; Stadin v. Union Electric Co., 309 F.2d 912 (C.A.8th Cir.), cert. denied, 373 U.S. 915, 83 S.Ct. 1298, 10 L.Ed.2d 415; United States v. American Society of Composers, Authors, and Publishers, 202 F.Supp. 340 (D.C.S.D.N.Y.). But cf. Ford Motor Co. v. Bisanz Bros., 249 F.2d 22 (C.A.8th Cir.).
25
United States v. General Electric Co., 95 F.Supp. 165, 169 (D.C.N.J.).
26
This policy has been given continuing recognition by the lower federal courts. Reich v. Webb, 336 F.2d 153 (C.A.9th Cir.), cert. denied, 380 U.S. 915, 85 S.Ct. 890, 13 L.Ed.2d 800; MacDonald v. United States, 119 F.2d 821 (C.A.9th Cir.), aff'd as modified, Great Northern Ry. Co. v. United States, 315 U.S. 262, 62 S.Ct. 529, 86 L.Ed. 836; United States v. General Electric Co., 95 F.Supp. 165 (D.C.N.J.). See Wometco Television & Theatre Co. v. United States, 355 U.S. 40, 78 S.Ct. 120, 2 L.Ed.2d 71. But cf. Atlantic Refining Co. v. Standard Oil Co., 113 U.S.App.D.C. 20, 304 F.2d 387.
27
The appellants also seek to challenge the District Court's denial of their motions for permissive intervention under Rule 24(b). We have no jurisdiction to consider this challenge. Allen Calculators, Inc. v. National Cash Register Co., 322 U.S. 137, 64 S.Ct. 905, 88 L.Ed. 1188. See Sam Fox Publishing Co. v. United States, 266 U.S. 683, at 688 and n. 3, 81 S.Ct. 1309, 1312, 6 L.Ed.2d 604. And in any event the District Court did not, in the circumstances of this protracted and complex litigation, abuse its discretion in choosing to allow appellants to present their views by amicus briefs rather than affording them permissive intervention as full parties.
28
See Sutphen Estates, Inc., v. United States, 342 U.S. 19, 72 S.Ct. 14, 96 L.Ed. 19.
| 78
|
17 L.Ed.2d 842
87 S.Ct. 903
386 U.S. 171
Manuel VACA et al., Petitioners,v.Niles SIPES, Administrator of the Estate of Benjamin Owens, Jr., Deceased.
No. 114.
Argued Nov. 17, 1966.
Decided Feb. 27, 1967.
[Syllabus from pages 171-172 intentionally omitted]
David E. Feller, Washington, D.C., for petitioners.
Allan R. Browne, Kansas City, Mo., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
On February 13, 1962, Benjamin Owens filed this class action against petitioners, as officers and representatives of the National Brotherhood of Packinghouse Workers1 and of its Kansas City Local No. 12 (the Union), in the Circuit Court of Jackson County, Missouri. Owens, a Union member, alleged that he had been discharged from his employment at Swift & Company's (Swift) Kansas City Meat Packing Plant in violation of the collective bargaining agreement then in force between Swift and the Union, and that the Union had 'arbitrarily, capriciously and without just or reasonable reason or cause' refused to take his grievance with Swift to arbitration under the fifth step of the bargaining agreement's grievance procedures.
2
Petitioners' answer included the defense that the Missouri courts lacked jurisdiction because the gravamen of Owens' suit was 'arguably and basically' an unfair labor practice under § 8(b) of the National Labor Relations Act (N.L.R.A.), as amended, 61 Stat. 141, 29 U.S.C. § 158(b), within the exclusive jurisdiction of the National Labor Relations Board (NLRB). After a jury trial, a verdict was returned awarding Owens $7,000 compensatory and $3,300 punitive damages. The trial judge set aside the verdict and entered judgment for petitioners on the ground that the NLRB had exclusive jurisdiction over this controversy, and the Kansas City Court of Appeals affirmed. The Supreme Court of Missouri reversed and directed reinstatement of the jury's verdict,2 relying on this Court's decisions in International Assn. of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018, and in International Union, United Automobile, etc. Workers of America v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030. 397 S.W.2d 658. During the appeal, Owens died and respondent, the administrator of Owens' estate, was substituted. We granted certiorari to consider whether exclusive jurisdiction lies with the NLRB and, if not, whether the finding of Union liability and the relief afforded Owens are consistent with governing principles of federal labor law. 384 U.S. 969, 86 S.Ct. 1863, 16 L.Ed.2d 1863. The American Federation of Labor and Congress of Industrial Organizations (AFL—CIO), Swift, and the United States have filed amicus briefs supporting petitioners. Although we conclude that state courts have jurisdiction in this type of case, we hold that federal law governs, that the governing federal standards were not applied here, and that the judgment of the Supreme Court of Missouri must accordingly be reversed.
I.
3
In mid-1959, Owens, a long-time high blood pressure patient, became sick and entered a hospital on sick leave from his employment with Swift. After a long rest during which his weight and blood pressure were reduced, Owens was certified by his family physician as fit to resume his heavy work in the packing plant. However, Swift's company doctor examined Owens upon his return and concluded that his blood pressure was too high to permit reinstatement. After securing a second authorization from another outside doctor, Owens returned to the plant, and a nures permitted him to resume work on January 6, 1960. However, on January 8, when the doctor discovered Owens' return, he was permanently discharged on the ground of poor health.
4
Armed with his medical evidence of fitness, Owens then sought the Union's help in securing reinstatement, and a grievance was filed with Swift on his behalf. By mid-November 1960, the grievance had been processed through the third and into the fourth step of the grievance procedure established by the collective bargaining agreement.3 Swift adhered to its position that Owens' poor health justified his discharge, rejecting numerous medical reports of reduced blood pressure proffered by Owens and by the Union. Swift claimed that these reports were not based upon sufficiently thorough medical tests.
5
On February 6, 1961, the Union sent Owens to a new doctor at Union expense 'to see if we could get some better medical evidence so that we could go to arbitration with his case.' R., at 107. This examination did not support Owens' position. When the Union received the report, its executive board voted not to take the Owens grievance to arbitration because of insufficient medical evidence. Union officers suggested to Owens that he accept Swift's offer of referral to a rehabilitation center, and the grievance was suspended for that purpose. Owens rejected this alternative and demanded that the Union take his grievance to arbitration, but the Union refused. With his contractual remedies thus stalled at the fourth step, Owens brought this suit. The grievance was finally dismissed by the Union and Swift shortly before trial began in June 1964.4
6
In his charge to the jury, the trial judge instructed that petitioners would be liable if Swift had wrongfully discharged Owens and if the Union had 'arbitrarily * * * and without just cause or excuse * * * refused' to press Owens' grievance to arbitration. Punitive damages could also be awarded, the trial judge charged, if the Union's conduct was 'willful, wanton and malicious.' However, the jury must return a verdict for the defendants, the judge instructed, 'if you find and believe from the evidence that the union and its representatives acted reasonably and in good faith in the handling and processing of the grievance of the plaintiff.' R., at 161—162. The jury then returned the general verdict for Owens which eventually was reinstated by the Missouri Supreme Court.
II.
7
Petitioners challenge the jurisdiction of the Missouri courts on the ground that the alleged conduct of the Union was arguably an unfair labor practice and within the exclusive jurisdiction of the NLRB. Petitioners rely on Miranda Fuel Co., 140 N.L.R.B. 181 (1962), enforcement denied, 326 F.2d 172 (C.A.2d Cir. 1963), where a sharply divided Board held for the first time that a union's breach of its statutory duty of fair representation violates N.L.R.A. § 8(b), as amended. With the NLRB's adoption of Miranda Fuel, petitioners argue, the broad pre-emption doctrine defined in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, becomes applicable. For the reasons which follow, we reject this argument.
8
It is now well established that, as the exclusive bargaining representative of the employees in Owens' bargaining unit, the Union had a statutory duty fairly to represent all of those employees, both in its collective bargaining with Swift, see Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048; Syres v. Oil Workers International Union, 350 U.S. 892, 76 S.Ct. 152, 100 L.Ed. 785, and in its enforcement of the resulting collective bargaining agreement, see Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370. The statutory duty of fair representation was developed over 20 years ago in a series of cases involving alleged racial discrimination by unions certified as exclusive bargaining representatives under the Railway Labor Act, see Steele v. Louisville & N.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173; Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187, and was soon extended to unions certified under the N.L.R.A., see Ford Motor Co. v. Huffman, supra. Under this doctrine, the exclusive agent's statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct. Humphrey v. Moore, 375 U.S., at 342, 84 S.Ct., at 367. It is obvious that Owens' complaint alleged a breach by the Union of a duty grounded in federal statutes, and that federal law therefore governs his cause of action. e.g., Ford Motor Co. v. Huffman, supra.
9
Although N.L.R.A. § 8(b) was enacted in 1947, the NLRB did not until Miranda Fuel interpret a breach of a union's duty of fair representation as an unfair labor practice. In Miranda Fuel, the Board's majority held that N.L.R.A. § 7 gives employees 'the right to be free from unfair or irrelevant or invidious treatment by their exclusive bargaining agent in matters affecting their employment,' and 'that Section 8(b)(1)(A) of the Act accordingly prohibits labor organizations, when acting in a statutory representative capacity, from taking action against any employee upon considerations or classifications which are irrelevant, invidious, or unfair.' 140 N.L.R.B., at 185. The Board also held that an employer who 'participates' in such arbitrary union conduct violates § 8(a)(1), and that the employer and the union may violate §§ 8(a)(3) and 8(b)(2), respectively, 'when, for arbitrary or irrelevant reasons or upon the basis of an unfair classification, the union attempts to cause or does cause an employer to derogate the employment status of an employee.'5 Id., at 186.
10
The Board's Miranda Fuel decision was denied enforcement by a divided Second Circuit, 326 F.2d 172 (1963). However, in Local Union No. 12, United Rubber, etc., Workers of America v. N.L.R.B., 368 F.2d 12, the Fifth Circuit upheld the Board's Miranda Fuel doctrine in an opinion suggesting that the Board's approach will pre-empt judicial cognizance of some fair representation duty suits. In light of these developments, petitioners argue that Owens' state court action was based upon Union conduct that is arguably proscribed by N.L.R.A. § 8(b), was potentially enforceable by the NLRB, and was therefore pre-empted under the Garmon line of decisions.
11
A. In Garmon, this Court recognized that the broad powers conferred by Congress upon the National Labor Relations Board to interpret and to enforce the complex Labor Management Relations Act (L.M.R.A.) necessarily imply that potentially conflicting 'rules of law, of remedy, and of administration' cannot be permitted to operate. 359 U.S. at 242, 79 S.Ct. 778, at 3 L.Ed.2d 775. In enacting the National Labor Relations Act and later the Labor Management Relations Act,
12
'Congress did not merely law down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties. It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal * * *. Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies. * * * A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law.' Garner v. Teamsters, etc., Union, 346 U.S. 485, 490—491, 74 S.Ct. 161, 165—166, 98 L.Ed. 228.
13
Consequently, as a general rule, neither state nor federal courts have jurisdiction over suits directly involving 'activity (which) is arguably subject to § 7 or § 8 of the Act.' San Diego Building Trades Council v. Garmon, 359 U.S., at 245, 79 S.Ct., at 780.
14
This pre-emption doctrine, however, has never been rigidly applied to cases where it could not fairly be inferred that Congress intended exclusive jurisdiction to lie with the NLRB. Congress itself has carved out exceptions to the Board's exclusive jurisdiction: Section 303 of the Labor Management Relations Act, 1947, 61 Stat. 158, 29 U.S.C. § 187, expressly permits anyone injured by a violation of N.L.R.A. § 8(b)(4) to recover damages in a federal court even though such unfair labor practices are also remediable by the Board; § 301 of that Act, 61 Stat. 156, 29 U.S.C. § 185, permits suits for breach of a collective bargaining agreement regardless of whether the particular breach is also an unfair labor practice within the jurisdiction of the Board (see Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246); and N.L.R.A. § 14, as amended by Title VII, § 701(a) of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 541, 29 U.S.C. § 164(c), permits state agencies and courts to assume jurisdiction 'over labor disputes over which the Board declines, pursuant to paragraph (1) of this subsection, to assert jurisdiction' (compare Guss v. Utah Labor Relations Board, 353 U.S. 1, 77 S.Ct. 598, 609, 1 L.Ed.2d 601).
15
In addition to these congressional exceptions, this Court has refused to hold state remedies pre-empted 'where the activity regulated was a merely peripheral concern of the Labor Management Relations Act. * * * (or) touched interests so deeply rooted in local feeling and responsibility that in the absence of compelling congressional direction, we could not infer that Congress has deprived the States of the power to act.' San Diego Building Trades Council v. Garmon, 359 U.S., at 243—244, 79 S.Ct. at 779. See, e.g., Linn v. United Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (libel); International Union, United Automobile, etc., Workers of America v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 (violence); International Assn. of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018 (wrongful expulsion from union membership); Allen-Bradley Local No. 1111, United Electrical, etc., Workers v. Wisconsin Employment Relations Board, 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154 (mass picketing). See also Hanna Mining Co. v. District 2, Marine Engineers Beneficial Assn., 382 U.S. 181, 86 S.Ct. 327, 15 L.Ed.2d 254. While these exceptions in no way undermine the vitality of the pre-emption rule where applicable, they demonstrate that the decision to pre-empt federal and state court jurisdiction over a given class of cases must depend upon the nature of the particular interests being asserted and the effect upon the administration of national labor policies of concurrent judicial and administrative remedies.
16
A primary justification for the pre-emption doctrine—the need to avoid conflicting rules of substantive law in the labor relations area and the desirability of leaving the development of such rules to the administrative agency created by Congress for that purpose—is not applicable to cases involving alleged breaches of the union's duty of fair representation. The doctrine was judicially developed in Steele and its progeny, and suits alleging breach of the duty remained judicially cognizable long after the NLRB was given unfair labor practice jurisdiction over union activities by the L.M.R.A.6 Moreover when the Board declared in Miranda Fuel that a union's breach of its duty of fair representation would henceforth be treated as an unfair labor practice, the Board adopted and applied the doctrine as it had been developed by the federal courts. See 140 N.L.R.B., at 184 186. Finally, as the dissenting Board members in Miranda Fuel have pointed out, fair representation duty suits often require review of the substantive positions taken and policies pursued by a union in its negotiation of a collective bargaining agreement and in its handling of the grievance machinery; as these matters are not normally within the Board's unfair labor practice jurisdiction, it can be doubted whether the Board brings substantially greater expertise to bear on these problems than do the courts, which have been engaged in this type of review since the Steele decision.7
17
In addition to the above considerations, the unique interests served by the duty of fair representation doctrine have a profound effect, in our opinion, on the applicability of the pre-emption rule to this class of cases. The federal labor laws seek to promote industrial peace and the improvement of wages and working conditions by fostering a system of employee organization and collective bargaining. See N.L.R.A. § 1, as amended, 61 Stat. 136, 29 U.S.C. § 151. The collective bargaining system as encouraged by Congress and administered by the NLRB of necessity subordinates the interests of an individual employee to the collective interests of all employees in a bargaining unit. See, e.g., J. I. Case Co. v. N.L.R.B., 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762. This Court recognized in Steele that the congressional grant of power to a union to act as exclusive collective bargaining representative, with its corresponding reduction in the individual rights of the employees so represented, would raise grave constitutional problems if unions were free to exercise this power to further racial discrimination. 323 U.S., at 198—199, 65 S.Ct., at 230—231, 89 L.Ed. 173. Since that landmark decision, the duty of fair representation has stood as a bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law. Were we to hold, as petitioners and the Government urge, that the courts are foreclosed by the NLRB's Miranda Fuel decision from this traditional supervisory jurisdiction, the individual employee injured by arbitrary or discriminatory union conduct could no longer be assured of impartial review of his complaint, since the Board's General Counsel has unreviewable discretion to refuse to institute an unfair labor practice complaint. See United Electrical Contractors Assn. v. Ordman, 366 F.2d 776 (C.A.2d Cir., 1966), cert. denied, 385 U.S. 1026, 87 S.Ct. 753, 17 L.Ed.2d 674.8 The existence of even a small group of cases in which the Board would be unwilling or unable to remedy a union's breach of duty would frustrate the basic purposes underlying the duty of fair representation doctrine. For these reasons, we cannot assume from the NLRB's tardy assumption of jurisdiction in these cases that Congress, when it enacted N.L.R.A. § 8(b) in 1947, intended to oust the courts of their traditional jurisdiction to curb arbitrary conduct by the individual employee's statutory representative.
18
B. There are also some intensely practical considerations which foreclose pre-emption of judicial cognizance of fair representation duty suits, considerations which emerge from the intricate relationship between the duty of fair representation and the enforcement of collective bargaining contracts. For the fact is that the question of whether a union has breached its duty of fair representation will in many cases be a critical issue in a suit under L.M.R.A. § 301 charging an employer with a breach of contract. To illustrate, let us assume a collective bargaining agreement that limits discharges to those for good cause and that contains no grievance, arbitration or other provisions purporting to restrict access to the courts. If an employee is discharged without cause, either the union or the employee may sue the employer under L.M.R.A. § 301. Under this section, courts have jurisdiction over suits to enforce collective bargaining agreements even though the conduct of the employer which is challenged as a breach of contract is also arguably an unfair labor practice within the jurisdiction of the NLRB. Garmon and like cases have no application to § 301 suits. Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246.
19
The rule is the same with regard to pre-emption where the bargaining agreement contains grievance and arbitration provisions which are intended to provide the exclusive remedy for breach of contract claims.9 If an employee is discharged without cause in violation of such an agreement, that the employer's conduct may be an unfair labor practice does not preclude a suit by the union10 against the employer to compel arbitration of the employee's grievance, the adjudication of the claim by the arbitrator, or a suit to enforce the resulting arbitration award. See, e.g., United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403.
20
However, if the wrongfully discharged employee himself resorts to the courts before the grievance procedures have been fully exhausted, the employer may well defend on the ground that the exclusive remedies provided by such a contract have not been exhausted. Since the employee's claim is based upon breach of the collective bargaining agreement, he is bound by terms of that agreement which govern the manner in which contractual rights may be enforced. For this reason, it is settled that the employee must at least attempt to exhaust exclusive grievance and arbitration procedures established by the bargaining agreement. Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580. However, because these contractual remedies have been devised and are often controlled by the union and the employer, they may well prove unsatisfactory or unworkable for the individual grievant. The problem then is to determine under what circumstances the individual employee may obtain judicial review of his breach-of-contract claim despite his failure to secure relief through the contractual remedial procedures.
21
An obvious situation in which the employee should not be limited to the exclusive remedial procedures established by the contract occurs when the conduct of the employer amounts to a repudiation of those contractual procedures. Cf. Drake Bakeries, Inc. v. Local 50, Am. Bakery, etc., Workers, 370 U.S. 254, 260 263, 82 S.Ct. 1346, 1350—1352, 8 L.Ed.2d 474. See generally 6A Corbin, Contracts § 1443 (1962). In such a situation (and there may of course be others), the employer is estopped by his own conduct to rely on the unexhausted grievance and arbitration procedures as a defense to the employee's cause of action.
22
We think that another situation when the employee may seek judicial enforcement of his contractual rights arises, if, as is true here, the union has sole power under the contract to invoke the higher stages of the grievance procedure, and if, as is alleged here, the employee-plaintiff has been prevented from exhausting his contractual remedies by the union's wrongful refusal to process the grievance. It is true that the employer in such a situation may have done nothing to prevent exhaustion of the exclusive contractual remedies to which he agreed in the collective bargaining agreement. But the employer has committed a wrongful discharge in breach of that agreement, a breach which could be remedied through the grievance process to the employee-plaintiff's benefit were it not for the union's breach of its statutory duty of fair representation to the employee. To leave the employee remediless in such circumstances would, in our opinion, be a great injustice. We cannot believe that Congress, in conferring upon employers and unions the power to establish exclusive grievance procedures, intended to confer upon unions such unlimited discretion to deprive injured employees of all remedies for breach of contract. Nor do we think that Congress intended to shield employers from the natural consequences of their breaches of bargaining agreements by wrongful union conduct in the enforcement of such agreements. Cf. Richardson v. Texas & N.O.R. Co., 242 F.2d 230, 235—236 (C.A.5th Cir.).
23
For these reasons, we think the wrongfully discharged employee may bring an action against his employer in the face of a defense based upon the failure to exhaust contractual remedies, provided the employee can prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee's grievance.11 We may assume for present purposes that such a breach of duty by the union is an unfair labor practice, as the NLRB and the Fifth Circuit have held. The employee's suit against the employer, however, remains a § 301 suit, and the jurisdiction of the courts is no more destroyed by the fact that the employee, as part and parcel of his § 301 action, finds it necessary to prove an unfair labor practice by the union, than it is by the fact that the suit may involve an unfair labor practice by the employer himself. The court is free to determine whether the employee is barred by the actions of his union representative, and, if not, to proceed with the case. And if, to facilitate his case, the employee joins the union as a defendant, the situation is not substantially changed. The action is still a § 301 suit, and the jurisdiction of the courts is not pre-empted under the Garmon principle. This, at the very least, is the holding of Humphrey v. Moore, supra, with respect to pre-emption, as petitioners recognize in their brief. And, insofar as adjudication of the union's breach of duty is concerned, the result should be no different if the employee, as Owens did here, sues the employer and the union in separate actions. There would be very little to commend a rule which would permit the Missouri courts to adjudicate the Union's conduct in an action against Swift but not in an action against the Union itself.
24
For the above reasons, it is obvious that the courts will be compelled to pass upon whether there has been a breach of the duty of fair representation in the context of many § 301 breach-of-contract actions. If a breach of duty by the union and a breach of contract by the employer are proven, the court must fashion an appropriate remedy. Presumably, in at least some cases, the union's breach of duty will have enhanced or contributed to the employee's injury. What possible sense could there be in a rule which would permit a court that has litigated the fault of employer and union to fashion a remedy only with respect to the employer? Under such a rule, either the employer would be compelled by the court to pay for the union's wrong—slight deterrence, indeed, to future union misconduct—or the injured employee would be forced to go to two tribunals to repair a single injury. Moreover, the Board would be compelled in many cases either to remedy injuries arising out of a breach of contract, a task which Congress has not assigned to it, or to leave the individual employee without remedy for the union's wrong.12 Given the strong reasons for not pre-empting duty of fair representation suits in general, and the fact that the courts in many § 301 suits must adjudicate whether the union has breached its duty, we conclude that the courts may also fashion remedies for such a breach of duty.
25
It follows from the above that the Missouri courts had jurisdiction in this case. Of course, it is quite another problem to determine what remedies may be available against the Union if a breach of duty is proven. See Part IV, infra. But the unique role played by the duty of fair representation doctrine in the scheme of federal labor laws, and its important relationship to the judicial enforcement of collective bargaining agreements in the context presented here, render the Garmon pre-emption doctrine inapplicable.
III.
26
Petitioners contend, as they did in their motion for judgment notwithstanding the jury's verdict, that Owens failed to prove that the Union breached its duty of fair representation in its handling of Owens' grievance. Petitioners also argue that the Supreme Court of Missouri, in rejecting this contention, applied a standard that is inconsistent with governing principles of federal law with respect to the Union's duty to an individual employee in its processing of grievances under the collective bargaining agreement with Swift. We agree with both contentions.
27
A. In holding that the evidence at trial supported the jury's verdict in favor of Owens, the Missouri Supreme Court stated:
28
'The essential issue submitted to the jury was whether the union * * * arbitrarily * * * refused to carry said grievance * * * through the fifth step. * * *
29
'We have concluded that there was sufficient substantial evidence from which the jury reasonably could have found the foregoing issue in favor of plaintiff. It is notable that no physician actually testified in the case. Both sides were content to rely upon written statements. Three physicians certified that plaintiff was able to perform his regular work. Three other physicians certified that they had taken plaintiff's blood pressure and that the readings were approximately 160 over 100. It may be inferred that such a reading does not indicate that this blood pressure was dangerously high. Moreover, plaintiff's evidence showed that he had actually done hard physical labor periodically during the four years following his discharge. We accordingly rule this point adversely to defendants.' 397 S.W.2d, at 665.
30
Quite obviously, the question which the Missouri Supreme Court thought dispositive of the issue of liability was whether the evidence supported Owens' assertion that he had been wrongfully discharged by Swift, regardless of the Union's good faith in reaching a contrary conclusion. This was also the major concern of the plaintiff at trial: the bulk of Owens' evidence was directed at whether he was medically fit at the time of discharge and whether he had performed heavy work after that discharge.
31
A breach of the statutory duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith. See Humphrey v. Moore, supra; Ford Motor Co. v. Huffman, supra. There has been considerable debate over the extent of this duty in the context of a union's enforcement of the grievance and arbitration procedures in a collective bargaining agreement. See generally Blumrosen, The Worker and Three Phases of Unionism: Administrative and Judicial Control of the Worker-Union Relationship, 61 Mich.L.Rev. 1435, 1482—1501 (1963); Comment, Federal Protection of Individual Rights under Labor Contracts, 73 Yale L.J. 1215 (1964). Some have suggested that every individual employee should have the right to have his grievance taken to arbitration.13 Others have urged that the union be given substantial discretion (if the collective bargaining agreement so provides) to decide whether a grievance should be taken to arbitration, subject only to the duty to refrain from patently wrongful conduct such as racial discrimination or personal hostility.14
32
Though we accept the proposition that a union may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion, we do not agree that the individual employee has an absolute right to have his grievance taken to arbitration regardless of the provisions of the applicable collective bargaining agreement. In L.M.R.A. § 203(d), 61 Stat. 154, 29 U.S.C. § 173(d), Congress declared that 'Final adjustment by a method agreed upon by the parties is * * * the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement.' In providing for a grievance and arbitration procedure which gives the union discretion to supervise the grievance machinery and to invoke arbitration, the employer and the union contemplate that each will endeavor in good faith to settle grievances short of arbitration. Through this settlement process, frivolous grievances are ended prior to the most costly and time-consuming step in the grievance procedures. Moreover, both sides are assured that similar complaints will be treated consistently, and major problem areas in the interpretation of the collective bargaining contract can be isolated and perhaps resolved. And finally, the settlement process furthers the interest of the union as statutory agent and as coauthor of the bargaining agreement in representing the employees in the enforcement of that agreement. See Cox, Rights Under a Labor Agreement, 69 Harv.L.Rev. 601 (1956).
33
If the individual employee could compel arbitration of his grievance regardless of its merit, the settlement machinery provided by the contract would be substantially undermined, thus destroying the employer's confidence in the union's authority and returning the individual grievant to the vagaries of independent and unsystematic negotiation. Moreover, under such a rule, a significantly greater number of grievances would proceed to arbitration.15 This would greatly increase the cost of the grievance machinery and could so overburden the arbitration process as to prevent it from functioning successfully. See NLRB v. Acme Industrial Co., 385 U.S. 432, 438, 87 S.Ct. 565, 569, 17 L.Ed.2d 495; Ross, Distressed Grievance Procedures and Their Rehabilitation, in Labor Arbitration and Industrial Change, Proceedings of the 16th Annual Meeting, National Academy of Arbitrators 104 (1963). It can well be doubted whether the parties to collective bargaining agreements would long continue to provide for detailed grievance and arbitration procedures of the kind encouraged by L.M.R.A. § 203(d), supra, if their power to settle the majority of grievances short of the costlier and more time-consuming steps was limited by a rule permitting the grievant unilaterally to invoke arbitration. Nor do we see substantial danger to the interests of the individual employee if his statutory agent is given the contractual power honestly and in good faith to settle grievances short of arbitration. For these reasons, we conclude that a union does not breach its duty of fair representation, and thereby open up a suit by the employee for breach of contract, merely because it settled the grievance short of arbitration.
34
For these same reasons, the standard applied here by the Missouri Supreme Court cannot be sustained. For if a union's decision that a particular grievance lacks sufficient merit to justify arbitration would constitute a breach of the duty of fair representation because a judge or jury later found the grievance meritorious, the union's incentive to settle such grievances short of arbitration would be seriously reduced. The dampening effect on the entire grievance procedure of this reduction of the union's freedom to settle claims in good faith would surely be substantial. Since the union's statutory duty of fair representation protects the individual employee from arbitrary abuses of the settlement device by providing him with recourse against both employer (in a § 301 suit) and union, this severe limitation on the power to settle grievances is neither necessary nor desirable. Therefore, we conclude that the Supreme Court of Missouri erred in upholding the verdict in this case solely on the ground that the evidence supported Owens' claim that he had been wrongfully discharged.
35
B. Applying the proper standard of union liability to the facts of this case, we cannot uphold the jury's award, for we conclude that as a matter of federal law the evidence does not support a verdict that the Union breached its duty of fair representation. As we have stated, Owens could not have established a breach of that duty merely by convincing the jury that he was in fact fit for work in 1960; he must also have proved arbitrary or bad-faith conduct on the part of the Union in processing his grievance. The evidence revealed that the Union diligently supervised the grievance into the fourth step of the bargaining agreement's procedure, with the Union's business representative serving as Owens' advocate throughout these steps. When Swift refused to reinstate Owens on the basis of his medical reports indicating reduced blood pressure, the Union sent him to another doctor of his own choice, at Union expense, in an attempt to amass persuasive medical evidence of Owens' fitness for work. When this examination proved unfavorable, the Union concluded that it could not establish a wrongful discharge. It then encouraged Swift to find light work for Owens at the plant. When this effort failed, the Union determined that arbitration would be fruitless and suggested to Owens that he accept Swift's offer to send him to a heart association for rehabilitation. At this point, Owens' grievance was suspended in the fourth step in the hope that he might be rehabilitated.
36
In administering the grievance and arbitration machinery as statutory agent of the employees, a union must, in good faith and in a nonarbitrary manner, make decisions as to the merits of particular grievances. See Humphrey v. Moore, 375 U.S. 335, 349 350, 84 S.Ct. 363, 371—372, 11 L.Ed.2d 370; Ford Motor Co. v. Huffman, 345 U.S. 330, 337—339, 73 S.Ct. 681, 685—687, 97 L.Ed. 1048. In a case such as this, when Owens supplied the Union with medical evidence supporting his position, the Union might well have breached its duty had it ignored Owens' complaint or had it processed the grievance in a perfunctory manner. See Cox, Rights under a Labor Agreement, 69 Harv.L.Rev., at 632—634. But here the Union processed the grievance into the fourth step, attempted to gather sufficient evidence to prove Owens' case, attempted to secure for Owens less vigorous work at the plant, and joined in the employer's efforts to have Owens rehabilitated. Only when these efforts all proved unsuccessful did the Union conclude both that arbitration would be fruitless and that the grievance should be dismissed. There was no evidence that any Union officer was personally hostile to Owens or that the Union acted at any time other than in good faith.16 Having concluded that the individual employee has no absolute right to have his grievance arbitrated under the collective bargaining agreement at issue, and that a breach of the duty of fair representation is not established merely by proof that the underlying grievance was meritorious, we must conclude that that duty was not breached here.
IV.
37
In our opinion, there is another important reason why the judgment of the Missouri Supreme Court cannot stand. Owens' suit against the Union was grounded on his claim that Swift had discharged him in violation of the applicable collective bargaining agreement. In his complaint, Owens alleged 'that, as a direct result of said wrongful breach of said contract, by employer * * * Plaintiff was damaged in the sum of Six Thousand, Five Hundred ($6,500.00) Dollars per year, continuing until the date of trial.' For the Union's role in 'preventing Plaintiff from completely exhausting administrative remedies,' Owens requested, and the jury awarded, compensatory damages for the above-described breach of contract plus punitive damages of $3,000. R., at 4. We hold that such damages are not recoverable from the Union in the circumstances of this case.
38
The appropriate remedy for a breach of a union's duty of fair representation must vary with the circumstances of the particular breach. In this case, the employee's complaint was that the Union wrongfully failed to afford him the arbitration remedy against his employer established by the collective bargaining agreement. But the damages sought by Owens were primarily those suffered because of the employer's alleged breach of contract. Assuming for the moment that Owens had been wrongfully discharged, Swift's only defense to a direct action for breach of contract would have been the Union's failure to resort to arbitration, compare Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580, with Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246, and if that failure was itself a violation of the Union's statutory duty to the employee, there is no reason to exempt the employer from contractual damages which he would otherwise have had to pay. See pp. 185-186, supra. The difficulty lies in fashioning an appropriate scheme of remedies.
39
Petitioners urge that an employee be restricted in such circumstances to a decree compelling the employer and the union to arbitrate the underlying grievance.17 It is true that the employee's action is based on the employer's alleged breach of contract plus the union's alleged wrongful failure to afford him his contractual remedy of arbitration. For this reason, an order compelling arbitration should be viewed as one of the available remedies when a breach of the union's duty is proved. But we see no reason inflexibly to require arbitration in all cases. In some cases, for example, at least part of the employee's damages may be attributable to the union's breach of duty, and an arbitrator may have no power under the bargaining agreement to award such damages against the union. In other cases, the arbitrable issues may be substantially resolved in the course of trying the fair representation controversy. In such situations, the court should be free to decide the contractual claim and to award the employee appropriate damages or equitable relief.
40
A more difficult question is, what portion of the employee's damages may be charged to the union: in particular, may an award against a union include, as it did here, damages attributable solely to the employer's breach of contract? We think not. Though the union has violated a statutory duty in failing to press the grievance, it is the employer's unrelated breach of contract which triggered the controversy and which caused this portion of the employee's damages. The employee should have no difficulty recovering these damages from the employer, who cannot, as we have explained, hide behind the union's wrongful failure to act; in fact, the employer may be (and probably should be) joined as a defendant in the fair representation suit, as in Humphrey v. Moore, supra. It could be a real hardship on the union to pay these damages, even if the union were given a right of indemnification against the employer. With the employee assured of direct recovery from the employer, we see no merit in requiring the union to pay the employer's share of the damages.18
41
The governing principle, then, is to apportion liability between the employer and the union according to the damage caused by the fault of each. Thus, damages attributable solely to the employer's breach of contract should not be charged to the union, but increases if any in those damages caused by the union's refusal to process the grievance should not be charged to the employer. In this case, even if the Union had breached its duty, all or almost all of Owens' damages would still be attributable to his allegedly wrongful discharge by Swift. For these reasons, even if the Union here had properly been found liable for a breach of duty, it is clear that the damage award was improper.
42
Reversed.
43
Mr. Justice FORTAS, with whom THE CHIEF JUSTICE and Mr. Justice HARLAN join, concurring in the result.
44
1. In my view, a complaint by an employee that the union has breached its duty of fair representation is subject to the exclusive jurisdiction of the NLRB. It is a charge of unfair labor practice. See Miranda Fuel Co., 140 N.L.R.B. 181 (1962);1 Local 12, United Rubber Workers, 150 N.L.R.B. 312, enforced, 368 F.2d 12 (C.A.5th Cir., 1966).2 As is the case with most other unfair labor practices, the Board's jurisdiction is preemptive. Garner v. Teamsters, Chauffeurs and Helpers Union, No. 776, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228 (1953); Guss v. Utah Labor Board, 353 U.S. 1, 77 S.Ct. 598, 1 L.Ed.2d 601 (1957); San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959); Local 438, Constr. Laborers v. Curry, 371 U.S. 542, 83 S.Ct. 531, 9 L.Ed.2d 514 (1963); Local 100 of the United Association of Journeymen & Apprentices v. Borden, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638 (1963); Local No. 207 International Assoc. of Bridge etc., Iron Workers v. Perko, 373 U.S. 701, 83 S.Ct. 1429, 10 L.Ed.2d 646 (1963); Liner v. Jafco, Inc., 375 U.S. 301, 84 S.Ct. 391, 11 L.Ed.2d 347 (1964). Cf. Woody v. Sterling Alum. Prods., Inc., 365 F.2d 448 (C.A.8th Cir. 1966), pet. for cert. pending, No. 946, O.T. 1966. There is no basis for failure to apply the pre-emption principle in the present case, and, as I shall discuss, strong reason for its application. The relationship between the union and the individual employee with respect to the processing of claims to employment rights under the collective bargaining agreement is fundamental to the design and operation of federal labor law. It is not 'merely peripheral,' as the Court's opinion states. It 'presents difficult problems of definition of status, problems which we have held are precisely 'of a kind most wisely entrusted initially to the agency charged with the day-to-day administration of the Act as a whole." Local No. 207 International Assoc. of Bridge etc., Iron Workers v. Perko, supra, 373 U.S., at 706, 83 S.Ct. at 1432. Accordingly, the judgment of the Supreme Court of Missouri should be reversed and the complaint dismissed for this reason and on this basis. I agree, however, that if it were assumed that jurisdiction of the subject matter exists, the judgment would still have to be reversed because of the use by the Missouri court of an improper standard for measuring the union's duty, and the absence of evidence to establish that the union refused further to process Owens' grievance because of bad faith or arbitrarily.
45
2. I regret the elaborate discussion in the Court's opinion of problems which are irrelevant. This is not an action by the employee against the employer, and the discussion of the requisites of such an action is, in my judgment, unnecessary, sue the employer under L.M.R.A. § 301; and that to maintain such an action the employee would have to show that he has exhausted his remedies under the collective bargaining agreement, or alternatively that he was prevented from doing so because the union breached its duty to him by failure completely to process his claim. That may be; or maybe all he would have to show to maintain an action against the employer for wrongful discharge is that he demanded that the union process his claim to exhaustion of available remedies, and that it refused to do so.3 I see no need for the Court to pass upon that question, which is not presented here, and which, with all respect, lends no support to the Court's argument. The Court seems to use its discussion of the employee-employer litigation as somehow analogous to or supportive of its conclusion that the employee may maintain a court action against the union. But I do not believe that this follows. I agree that the NLRB's unfair labor practice jurisdiction does not preclude an action under § 301 against the employer for wrongful discharge from employment. Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). Therefore, Owens might have maintained an action against his employer in the present case. This would be an action to enforce the collective bargaining agreement, and Congress has authorized the courts to entertain actions of this type. But his claim against the union is quite different in character, as the Court itself recognizes. The Court holds—and I think correctly if the issue is to be reached—that the union could not be required to pay damages measured by the breach of the employment contract, because it was not the union but the employer that breached the contract. I agree; but I suggest that this reveals the point for which I contend: that the employee's claim against the union is not a claim under the collective bargaining agreement, but a claim that the union has breached its statutory duty of fair representation. This claim, I submit, is a claim of unfair labor practice and it is within the exclusive jurisdiction of the NLRB. The Court agrees that 'one of the available remedies (obtainable, the Court says, by court action) when a breach of the union's duty is proved' is 'an order compelling arbitration.' This is precisely and uniquely the kind of order which is within the province of the Board. Beyond this, the Court is exceedingly vague as to remedy: 'appropriate damages or equitable relief' are suggested as possible remedies, apparently when arbitration is not available. Damages against the union, the Court admonishes, should be gauged 'according to the damage caused by (its) fault'—i.e., the failure to exhaust remedies for the grievance. The Court's difficulty, it seems to me, reflects the basic awkwardness of its position: It is attempting to force into the posture of a contract violation an alleged default of the union which is not a violation of the collective bargaining agreement but a breach of its separate and basic duty fairly to represent all employees in the unit. This is an unfair labor practice, and should be treated as such.4
46
3. If we look beyond logic and precedent to the policy of the labor relations design which Congress has provided, court jurisdiction of this type of actions seems anomalous and ill-advised. We are not dealing here with the interpretation of a contract or with an alleged breach of an employment agreement. As the Court in effect acknowledges, we are concerned with the subtleties of a union's statutory duty faithfully to represent employees in the unit, including those who may not be members of the union. The Court—regrettably, in my opinion—ventures to state judgments as to the metes and bounds of the reciprocal duties involved in the relationship between the union and the employee. In my opinion, this is precisely and especially the kind of judgment that Congress intended to entrust to the Board and which is well within the pre-emption doctrine that this Court has prudently stated.5 See cases cited, supra, especially the Perko and Borden cases, the facts of which strongly parallel the situation in this case. See also Linn v. Plant Guard Workers, 383 U.S. 53, 72, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966) (dissenting opinion). The nuances of union-employee and union-employer relationships are infinite and consequential, particularly when the issue is an amorphous as whether the union was proved guilty of 'arbitrary or bad-faith conduct' which the Court states as the standard applicable here. In all reason and in all good judgment, this jurisdiction should be left with the Board and not be placed in the courts especially with the complex and necessarily confusing guidebook that the Court now publishes.
47
Accordingly, I join the judgment of reversal, but on the basis stated.
48
Mr. Justice BLACK, dissenting.
49
The Court today opens slightly the courthouse door to an employee's incidental claim against his union for breach of its duty of fair representation, only to shut it in his face when he seeks direct judicial relief for his underlying and more valuable breach-of-contract claim against his employer. This result follows from the Court's announcement in this case, involving an employee's suit against his union, of a new rule to govern an employee's suit against his employer. The rule is that before an employee can sue his employer under § 301 of the L.M.R.A. for a simple breach of his employment contract, the employee must prove not only that he attempted to exhaust his contractual remedies, but that his attempt to exhaust them was frustrated by 'arbitrary, discriminatory, or * * * bad faith' conduct on the part of his union. With this new rule and its result I cannot agree.
50
The Court recognizes as it must, that the jury in this case found at least that Benjamin Owens was fit for work, that his grievance against Swift was meritorious, and that Swift breached the collective bargaining agreement when it wrongfully discharged him. The Court also notes in passing that Owens* has a separate action for breach of contract pending against Swift in the state courts. And in Part IV of its opinion, the Court vigorously insists that 'there is no reason to exempt the employer from contractual damages which he would otherwise have had to pay,' that the 'employee should have no difficulty recovering these damages from the employer' for his 'unrelated breach of contract,' and that 'the employee (is) assured of direct recovery from the employer.' But this reassurance in Part IV gives no comfort to Owens, for Part IV is based on the assumption that the union breached its duty to Owens, an assumption which, in Part III of its opinion, the Court finds unsupported by the facts of this case. What this all means, though the Court does not expressly say it, is that Owens will be no more successful in his pending breach-of-contract action against Swift than he is here in his suit against the union. For the Court makes it clear 'that the question of whether a union has breached its duty of fair representation will * * * be a critical issue in a suit under L.M.R.A. § 301,' that 'the wrongfully discharged employee may bring an action against his employer' only if he 'can prove that the union * * * breached its duty of fair representation in its handling of the employee's grievance,' and 'that the employee, as part and parcel of his § 301 action, finds it necessary to prove an unfair labor practice by the union.' Thus, when Owens attempts to proceed with his pending breach-of-contract action against Swift, Swift will undoubtedly secure its prompt dismissal by pointing to the Court's conclusion here that the union has not breached its duty of fair representation. Thus, Owens, who now has obtained a judicial determination that he was wrongfully discharged, is left remediless, and Swift, having breached its contract, is allowed to hide behind, and is shielded by, the union's conduct. I simply fail to see how it should make one iota of difference, as far as the 'unrelated breach of contract' by Swift is concerned, whether the union's conduct is wrongful or rightful. Neither precedent nor logic supports the Court's new announcement that it does.
51
Certainly, nothing in Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, supports this new rule. That was a case where the aggrieved employee attempted to 'completely sidestep available grievance procedures in favor of a lawsuit.' Id., at 653, 85 S.Ct. at 616. Noting that 'it cannot be said * * * that contract grievance procedures are inadequate to protect the interests of an aggrieved employee until the employee has attempted to implement the procedures and found them so,' ibid., the Court there held that the employee 'must attempt use of the contract grievance procedure,' id., at 652, 85 S.Ct. at 616, and 'must afford the union the opportunity to act on his behalf,' id., at 653, 85 S.Ct. at 616. I dissented on the firm belief that an employee should be free to litigate his own lawsuit with his own lawyer in a court before a jury, rather than being forced to entrust his claim to a union which even if it did agree to press it, would be required to submit it to arbitration. And even if, as the Court implied, 'the worker would be allowed to sue after he had presented his claim to the union and after he had suffered the inevitable discouragement and delay which necessarily accompanies the union's refusal to press his claim,' id., at 669, 85 S.Ct. at 625, I could find no threat to peaceful labor relations or to the union's prestige in allowing an employee to by-pass completely contractual remedies in favor of a traditional breach-of-contract lawsuit for back pay or wage substitutes. Here, of course, Benjamin Owens did not 'completely sidestep available grievance procedures in favor of a lawsuit.' With complete respect for the union's authority and deference to the contract grievance procedures, he not only gave the union a chance to act on his behalf, but in every way possible tried to convince it that his claim was meritorious and should be carried through the fifth step to arbitration. In short, he did everything the Court's opinion in Maddox said he should do, and yet now the Court says so much is not enough.
52
In Maddox, I noted that the 'cases really in point are those which involved agreements governed by the Railway Labor Act and which expressly refused to hold that a discharged worker must pursue collective bargaining grievance procedures before suing in a court for wrongful discharge. Transcontinental & Western Air, Inc. v. Koppal, 345 U.S. 653, 73 S.Ct. 906, 97 L.Ed. 1325; Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089.' 379 U.S., at 666, 85 S.Ct. at 623. I also observed that the Court's decision in Maddox 'raised the overruling axe so high (over those cases) that its falling is just about as certain as the changing of the seasons.' Id., at 667, 85 S.Ct. at 624. In the latter observation I was mistaken. The Court has this Term, in Walker v. Southern R. Co., 385 U.S. 196, 87 S.Ct. 365, 17 L.Ed.2d 294, refused to overrule in light of Maddox such cases as Moore and Koppal. Noting the long delays attendant upon exhausting administrative remedies under the Railway Labor Act, the Court based this refusal on '(t)he contrast between the administrative remedy' available to Maddox and that available to Walker. If, as the Court suggested, the availability of an administrative remedy determines whether an employee can sue without first exhausting it, can there be any doubt that Owens who had no administrative remedy should be as free to sue as Walker who had a slow one? Unlike Maddox, Owens attempted to implement the contract grievance procedures and found them inadequate. Today's decision, following in the wake of Walker v. Southern R. Co., merely prepetuates an unfortunate anomaly created by Maddox in the law of labor relations.
53
The rule announced in Maddox, I thought, was a 'brainchild' of the Court's recent preference for arbitration. But I am unable to ascribe any such genesis to today's rule, for arbitration is precisely what Owens sought and preferred. Today the Court holds that an employee with a meritorious claim has no absolute right to have it either litigated or arbitrated. Fearing that arbitrators would be overworked, the Court allows unions unilaterally to determine not to take a grievance to arbitration—the first step in the contract grievance procedure at which the claim would be presented to an impartial third party—as long as the union decisions are neither 'arbitrary' nor 'in bad faith.' The Court derives this standard of conduct from a long line of cases holding that '(a) breach of the statutory duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.' What the Court overlooks is that those cases laid down this standard in the context of situations where the employee's sole or fundamental complaint was against the union. There was not the slightest hint in those cases that the same standard would apply where the employee's primary complaint was against his employer for breach of contract and where he only incidentally contended that the union's conduct prevented the adjudication, by either court or arbitrator, of the underlying grievance. If the Court here were satisfied with merely holding that in this situation the employee could not recover damages from the union unless the union breached its duty of fair representation, then it would be one thing to say that the union did not do so in making a good-faith decision not to take the employee's grievance to arbitration. But if, as the Court goes on to hold, the employee cannot sue his employer for breach of contract unless his failure to exhaust contractual remedies is due to the union's breach of its duty of fair representation, then I am quite unwilling to say that the union's refusal to exhaust such remedies—however non-arbitrary—does not amount to a breach of its duty. Either the employee should be able to sue his employer for breach of contract after having attempted to exhaust his contractual remedies, or the union should have an absolute duty to exhaust contractual remedies on his behalf. The merits of an employee's grievance would thus be determined by either a jury or an arbitrator. Under today's decision it will never be determined by either.
54
And it should be clear that the Court's opinion goes much further than simply holding that an employee has no absolute right to have the union take his grievance to arbitration. Here, of course, the union supervised the grievance into the fourth step of the contract machinery and dropped it just prior to arbitration on its belief that the outcome of arbitration would be unfavorable. But limited only by the standard of arbitrariness, there was clearly no need for the union to go that far. Suppose, for instance, the union had a rule that it would not prosecute a grievance even to the first step unless the grievance were filed by the employee within 24 hours after it arose. Pursuant to this rule, the union might completely refuse to prosecute a grievance filed several days late. Thus, the employee, no matter how meritorious his grievance, would get absolutely nowhere. And unless he could prove that the union's rule was arbitrary (a standard which no one can define), the employee would get absolutely no consideration of the merits of his grievance—either by a jury, an arbitrator, nor by the employer, or by the union. The Court suggests three reasons for giving the union this almost unlimited discretion to deprive injured employees of all remedies for breach of contract. The first is that 'frivolous grievances' will be ended prior to time-consuming and costly arbitration. But here no one, not even the union, suggests that Benjamin Owens' grievance was frivolous. The union decided not to take it to arbitration simply because the union doubted the chance of success. Even if this was a good-faith doubt, I think the union had the duty to present this contested, but serious, claim to the arbitrator whose very function is to decide such claims on the basis of what he believes to be right. Second, the Court says that allowing the union to settle grievances prior to arbitration will assure consistent treatment of 'major problem areas in the interpretation of the collective bargaining contract.' But can it be argued that whether Owens was 'fit to work' presents a major problem in the interpretation of the collective bargaining agreement? The problem here was one of interpreting medical reports, not a collective bargaining agreement, and of evaluating other evidence of Owens' physical condition. I doubt whether consistency is either possible or desirable in determining whether a particular employee is able to perform a particular job. Finally, the Court suggests that its decision 'furthers the interest of the union as statutory agent.' I think this is the real reason for today's decision which entirely overlooks the interests of the injured employee, the only one who has anything to lose. Of course, anything which gives the union life and death power over those whom it is supposed to represent furthers its 'interest.' I simply fail to see how the union's legitimate role as statutory agent is undermined by requiring it to prosecute all serious grievances to a conclusion or by allowing the injured employee to sue his employer after he has given the union a chance to act on his behalf.
55
Henceforth, in almost every § 301 breach-of-contract suit by an employee against an employer, the employee will have the additional burden of proving that the union acted arbitrarily or in bad faith. The Court never explains what is meant by this vague phrase or how trial judges are intelligently to translate it to a jury. Must the employee prove that the union in fact acted arbitrarily, or will it be sufficient to show that the employee's grievance was so meritorious that a reasonable union would not have refused to carry it to arbitration? Must the employee join the union in his § 301 suit against the employer, or must he join the employer in his unfair representation suit against the union? However these questions are answered, today's decision, requiring the individual employee to take on both the employer and the union in every suit against the employer and to prove not only that the employer breached its contract, but that the union acted arbitrarily, converts what would otherwise be a simple breach-of-contract action into a three-ring donnybrook. It puts an intolerable burden on employees with meritorious grievances and means they will frequently be left with no remedy. Today's decision, while giving the worker an ephemeral right to sue his union for breach of its duty of fair representation, creates insurmountable obstacles to block his far more valuable right to sue his employer for breach of the collective bargaining agreement.
1
Now known as the National Brotherhood of Packinghouse & Dairy Workers.
2
Punitive damages were reduced to $3,000, the amount claimed by Owens in his complaint.
3
The agreement created a five-step procedure for the handling of grievances. In steps one and two, either the aggrieved employee or the Union's representative presents the grievance first to Swift's department foreman, and then in writing to the division superintendent. In step three, grievance committees of the Union and management meet, and the company must state its position in writing to the Union. Step four is a meeting between Swift's general superintendent and representatives of the National Union. If the grievance is not settled in the fourth step, the National Union is given power to refer the grievance to a specified arbitrator.
4
No notice of the dismissal was given to Owens, who by that time had filed a second suit against Swift for breach of contract. The suit against Swift is still pending in a pretrial stage.
5
See also Cargo Handlers, Inc., 159 N.L.R.B. No. 17; Local 12, United Rubber Workers, 150 N.L.R.B. 312, enforced, 368 F.2d 12 (C.A.5th Cir. 1966); Maremont Corp., 149 N.L.R.B. 482; Galveston Maritime Assn., Inc., 148 N.L.R.B. 897; Hughes Tool Co., 147 N.L.R.B. 1573.
6
See Ford Motor Co. v. Huffman, 345 U.S. 330, 332, n. 4, 73 S.Ct. 681, 97 L.Ed. 1048. In Huffman, the NLRB submitted an amicus brief stating that it had not assumed pre-emptive jurisdiction over fair representation duty issues. Mem. for the NLRB, Nos. 193 and 194, Oct. Term, 1952. In Syres v. Oil Workers International Union, 350 U.S. 892, 76 S.Ct. 152, 100 L.Ed. 785, the Court reversed the dismissal of a suit which claimed breach of the duty of fair representation despite express reliance by one respondent on exclusive NLRB jurisdiction. Brief for Resp. Gulf Oil Corp., No. 390, Oct. Term, 1955.
7
See Hughes Tool Co., 147 N.L.R.B. 1573, 1589—1590 (Chairman McCulloch and Member Fanning, dissenting in part).
8
The public interest in effectuating the policies of the federal labor laws, not the wrong done the individual employee, is always the Board's principal concern in fashioning unfair labor practice remedies. See N.L.R.A. § 10(c), as amended, 61 Stat. 147, 29 U.S.C. § 160(c); Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271. Thus, the General Counsel will refuse to bring complaints on behalf of injured employees where the injury complained of is 'insubstantial.' See Administrative Decision of the General Counsel, Case No. K—610, Aug. 13, 1956, in CCH N.L.R.B. Decisions, 1956—1957, at Transfer Binder, 54,059.
9
If a grievance and arbitration procedure is included in the contract, but the parties do not intend it to be an exclusive remedy, then a suit for breach of contract will normally be heard even though such procedures have not been exhausted. See Republic Steel Corp. v. Maddox, 379 U.S. 650, 657—658, 85 S.Ct. 614, 13 L.Ed.2d 580; 6A Corbin, Contracts § 1436 (1962).
10
Occasionally, the bargaining agreement will give the aggrieved employee, rather than his union, the right to invoke arbitration. See Retail Clerks Intern. Ass'n, etc. v. Lion Dry Goods, Inc., 6 Cir., 341 F.2d 715, cert. denied, 382 U.S. 839, 86 S.Ct. 87, 15 L.Ed.2d 81.
11
Accord, Hiller v. Liquor Salesmen's Union, 338 F.2d 778 (C.A.2d Cir.); Hardcastle v. Western Greyhound Lines, 303 F.2d 182 (C.A.9th Cir.), cert. denied, 371 U.S. 920, 83 S.Ct. 288, 9 L.Ed.2d 229; Fiore v. Associated Transport, Inc., D.C., 255 F.Supp. 596; Bieski v. Eastern Automobile Forwarding Co., D.C., 231 F.Supp. 710, aff'd, 354 F.2d 414 (C.A.3d Cir.); Ostrofsky v. United Steelworkers, etc., D.C., 171 F.Supp. 782, aff'd per curiam, 273 F.2d 614 (C.A.4th Cir.), cert. denied, 363 U.S. 849, 80 S.Ct. 1628, 4 L.Ed.2d 1732; Jenkins v. Wm. Schluderberg-T. J. Kurdle Co., 217 Md. 556, 144 A.2d 88.
12
Assuming for the moment that Swift breached the collective bargaining agreement in discharging Owens and that the Union breached its duty in handling Owens' grievance, this case illustrates the difficulties that would result from a rule pre-empting the courts from remedying the Union's breach of duty. If Swift did not 'participate' in the Union's unfair labor practice, the Board would have no jurisdiction to remedy Swift's breach of contract. Yet a court might be equally unable to give Owens full relief in a § 301 suit against Swift. Should the court award damages against Swift for Owens' full loss, even if it concludes that part of that loss was caused by the Union's breach of duty? Or should it award Owens only partial recovery hoping that the Board will make him whole? These remedy problems are difficult enough when one tribunal has all parties before it; they are impossible if two independent tribunals, with different procedures, time limitations, and remedial powers, must participate.
13
See Donnelly v. United Fruit Co., 40 N.J. 61, 190 A.2d 825; Report of Committee on Improvement of Administration of Union-Management Agreements, 1954, Individual Grievances, 50 Nw.U.L.Rev. 143 (1955); Murphy, The Duty of Fair Representation under Taft-Hartley, 30 Mo.L.Rev. 373, 389 (1965); Summers, Individual Rights in Collective Agreements and Arbitration, 37 N.Y.U.L.Rev. 362 (1962).
14
See Sheremet v. Chrysler Corp., 372 Mich. 626, 127 N.W.2d 313; Wyle, Labor Arbitration and the Concept of Exclusive Representation, 7 B.C.Ind. & Com.L.Rev. 783 (1966).
15
Under current grievance practices, an attempt is usually made to keep the number of arbitrated grievances to a minimum. An officer of the National Union testified in this case that only one of 967 grievances filed at all of Swift's plants between September 1961 and October 1963 was taken to arbitration. And the AFL—CIO's amicus brief reveals similar performances at General Motors Corporation and United States Steel Corporation, two of the Nation's largest unionized employers: less than .05% of all written grievances filed during a recent period at General Motors required arbitration, while only 5.6% of the grievances processed beyond the first step at United States Steel were decided by an arbitrator.
16
Owens did allege and testify that petitioner Vaca, President of the Kansas City local, demanded $300 in expenses before the Union would take the grievance to arbitration, a charge which all the petitioners vigorously denied at trial. Under the collective bargaining agreement, the local union had no power to invoke arbitration. See n. 3, supra. Moreover, the Union's decision to send Owens to another doctor at Union expense occurred after Vaca's alleged demand, and the ultimate decision not to invoke arbitration came later still. Thus, even if the jury believed Owens' controverted testimony, we do not think that this incident would establish a breach of duty by the Union.
17
Obviously, arbitration is an appropriate remedy only when the parties have created such a procedure in the collective bargaining agreement.
18
We are not dealing here with situations where a union has affirmatively caused the employer to commit the alleged breach of contract. In cases of that sort where the union's conduct is found to be an unfair labor practice, the NLRB has found an unfair labor practice by the employer, too, and has held the union and the employer jointly and severally liable for any back pay found owing to the particular employee who was the subject of their joint discrimination. E.g., Imparato Stevedoring Corp., 113 N.L.R.B. 883 (1955); Squirt Distrib. Co., 92 N.L.R.B. 1667 (1951); H. M. Newman, 85 N.L.R.B. 725 (1949). Even if this approach would be appropriate for analogous § 301 and breach-of-duty suits, it is not applicable here. Since the Union played no part in Swift's alleged breach of contract and since Swift took no part in the Union's alleged breach of duty, joint liability for either wrong would be unwarranted.
1
This decision of the NLRB was denied enforcement by the Court of Appeals for the Second Circuit but on a basis which did not decide the point relevant here. NLRB v. Miranda Fuel Co., 326 F.2d 172 (C.A.2d Cir. 1963). Only one judge, Judge Medina, took the position that the NLRB had incorrectly held violation of the duty of fair representation to be an unfair labor practice. As an alternative ground for decision, he held that the NLRB had not had sufficient evidence to support its finding of breach of the duty. Judge Lumbard agreed with this latter holding, and explicitly did not reach the question whether breach of the duty is an unfair labor practice. Judge Friendly dissented. He would have affirmed the NLRB both on the sufficiency of the evidence and on the holding that breach of the duty of fair representation is an unfair labor practice as to which the NLRB can give relief.
2
The opinion by Judge Thornberry for the Fifth Circuit supports the views expressed herein. See also Cox, The Duty of Fair Representation, 2 Vill.L.Rev. 151, 172—173 (1957); Wellington, Union Democracy and Fair Representation: Federal Responsibility in a Federal System, 67 Yale L.J. 1327 (1958).
3
Cf. my Brother BLACK's dissenting opinion in this case. Cf. also Brown v. Sterling Alum. Prods. Corp., 365 F.2d 651, 656 657 (C.A.8th Cir. 1966) cert. denied, 386 U.S. 957, 87 S.Ct. 1023, 18 L.Ed.2d 105. Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965), does not pass upon the issue. The Court states that 'To leave the employee remediless' when the union wrongfully refuses to process his grievance, 'would * * * be a great injustice.' I do not believe the Court relieves this injustice to any great extent by requiring the employee to prove an unfair labor practice as a prerequisite to judicial relief for the employer's breach of contract. Nor do I understand how giving the employee a cause of action against the union is an appropriate way to remedy the injustice which would exist if the union were allowed to foreclose relief against the employer.
4
The Court argues that since the employee suing the employer for breach of the employment contract would have to show exhaustion of remedies under the contract, and since he would for this purpose have to show his demand on the union and, according to the Court, its wrongful failure to prosecute his grievance, the union could be joined as a party defendant; and since the union could be joined in such a suit, it may be sued independently of the employer. But this is a non sequitur. As the Court itself insists, the suit against the union is not for breach of the employment contract, but for violation of the duty fairly to represent the employee. This is an entirely different matter. It is a breach of statutory duty—an unfair labor practice—and not a breach of the employment contract.
5
In a variety of contexts the NLRB concerns itself with the substantive bargaining behavior of the parties. For example: (a) the duty to bargain in good faith, see, e.g., Fibreboard Corp. v. Labor Board, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964); (b) jurisdictional disputes, see, e.g., National Labor Relations Board v. Radio Engineers, 364 U.S. 573, 81 S.Ct. 330, 5 L.Ed.2d 302, (1961); (c) secondary boycotts and hot cargo clauses, see, e.g., Orange Belt District Council of Painters No. 48 v. NLRB, 117 U.S.App.D.C. 233, 328 F.2d 534 (1964).
*
Owens died while the appeal of his case from the trial court was pending. The administrator of his estate was substituted and is the respondent herein though for simplicity is referred to herein as Owens.
| 67
|
386 U.S. 228
87 S.Ct. 998
18 L.Ed.2d 11
FEDERAL TRADE COMMISSION, Petitioner,v.JANTZEN, INC.
No. 310.
Argued Feb. 14, 1967.
Decided March 13, 1967.
Ralph S. Spritzer, Washington, D.C., for petitioner.
Edwin S. Rockefeller, Washington, D.C., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
This case involves the effect of the Act of July 23, 1959, 73 Stat. 243 (Finality Act), upon orders issued by the Federal Trade Commission under § 11 of the Clayton Act, 38 Stat. 734, prior to the date of the former Act. The respondent claims that the Finality Act repealed the enforcement provisions of § 11 of the Clayton Act, 15 U.S.C. § 21 (1958 ed.), and that orders of the Commission entered prior to the enactment of the Finality Act are not now enforceable. The Court of Appeals agreed, held that it had no jurisdiction to enforce such orders and directed that the proceeding be dismissed. 356 F.2d 253. In view of the pendency of almost 400 such orders and the conflict among the circuits1 on the point, we granted certiorari. 385 U.S. 810, 87 S.Ct. 76, 17 L.Ed.2d 52.
I.
2
The facts are not disputed, save on points not relevant here, and will not be stated in detail. Jantzen manufactures men's, women's and children's apparel. On September 4, 1958, it was charged by the Commission with having violated § 2(d) of the Clayton Act by allowing discriminatory advertising and promotional allowances to certain of its customers. Jantzen did not answer the complaint. However, it consented to the entry of a cease-and-desist order against it prohibiting further discrimination in advertising and promotional activities. This agreement and a form of order were approved by a hearing examiner and on January 16, 1959, the order was adopted by the Commission. On July 22, 1964, some five years after the adoption of the Finality Act, the Commission ordered an investigation into charges that Jantzen had violated the 1959 consent order. Jantzen stipulated before a hearing examiner that it had violated the consent order by granting discriminatory allowances to customers in Chattanooga, Tenn., and Brooklyn, N.Y. The Commission thereafter concluded that Jantzen had violated the order. It then applied to the Court of Appeals for an order affirming and enforcing the original order. The application was based on the provisions of the third paragraph of § 11 of the original Clayton Act, which authorized the Commission, in the event such an order was not obeyed, to apply to a court of appeals for its 'enforcement.' Jantzen claimed that the amendment of § 11 by the Finality Act resulted in a repeal of the Commission's authority to seek, and the courts' to grant, affirmance and enforcement of such orders. The Court of Appeals agreed and dismissed the application for lack of jurisdiction. We reverse and remand the proceedings for further consideration in light of this opinion.
II.
3
We start with the proposition that the Congress intended by its enactment of the Finality Act of 1959 to strengthen the hand of the Commission in the enforcement of the Clayton Act. As the report of the Committee on the Judiciary of the Senate stated: 'The effectiveness of the Clayton Act * * * has long been handicapped by the absence of adequate enforcement provisions. * * * S. 726 would put teeth into Clayton Act orders and would fill the enforcement void which has existed for many years.' S.Rep.No.83, 86th Cong., 1st Sess., 2 (1959). The procedures existing prior to the adoption of the Finality Act required the Commission to investigate, and after complaint, prove a violation of the Clayton Act before it could issue a cease-and-desist order. After its issuance a violation of the order had to be investigated and proved before the Commission might obtain an order compelling its obedience. Only then could a court of appeals order enforcement. And under Federal Trade Comm'n v. Ruberoid Co., 343 U.S. 470, 72 S.Ct. 800, 96 L.Ed. 1081 (1952), a contempt proceeding would not lie except on allegations of violation of the Act a third time and proof of a failure or refusal to obey the Commission's order, previously affirmed.
4
The Finality Act eliminated these 'laborious, time consuming, and very expensive' procedures. S.Rep.No. 83, supra, at 2. As Congressman Huddleston, one of the principal supporters of the bill which later became the Act, stated to the House:
5
'The bill * * * is in effect a perfecting amendment to the Clayton Act. It has no other purpose than to effect the will of Congress with respect to the role of the Federal Trade Commission in Clayton Act enforcement in the same manner and to the same degree that the will of Congress was effectuated by the Wheeler-Lea amendments to the Federal Trade Commission Act.' 105 Cong.Rec. 12732.
6
the remarks of Congressman Celler, Chairman of the House Judiciary Committee, of Congressman Roosevelt and of other supporters of the bill were substantially the same. 105 Cong.Rec. 12730—12733.
7
The Wheeler-Lea Amendment clarified the procedures of the Federal Trade Commission Act but did not amend those of the Clayton Act. Under the Wheeler-Lea Amendment orders issued by the Commission were to become final 60 days after their issuance or upon affirmance by a court of appeals in which a petition for review had been filed. However, § 5(a) of the Amendment expressly provided that orders outstanding at the time of the adoption of the Amendment would become final 60 days after the latter date or upon affirmance in review proceedings instituted during that 60-day period. 50 Stat. 117. The Finality Act instead of using the language of § 5(a) of the Wheeler-Lea Amendment contains a special provision, § 2, which reads as follows:
8
'The amendments made by section 1 shall have no application to any proceeding initiated before the date of enactment of this Act under the third or fourth paragraph of section 11 of the (Clayton) Act * * *. Each such proceeding shall be governed by the provisions of such section as they existed on the day preceding the date of enactment of this Act.'
9
The Court of Appeals thought the use of this language was significant in that, unlike § 5(a), it 'does not deal with cease and desist orders issued before its effective date, nor provide for their becoming final within the meaning of the amended Act. It deals solely with proceedings begun in a Court of Appeals * * *. Thus the third paragraph (of § 11) is expressly continued in effect for this very limited purpose, namely, the completion of proceedings for enforcement initiated by the Commission in a Court of Appeals. * * * (T)his is a strong indication that the Congress knew, and intended, that it was repealed for other purposes.' The Court of Appeals buttressed this reading of the Finality Act by noting that the Commission originally took the position 'that existing Clayton Act orders would become final within 60 days, under the new law, just as under the Wheeler-Lea Act * * *.' 356 F.2d, at 257. See Sperry Rand Corp. v. F.T.C., 110 U.S.App.D.C. 1, 288 F.2d 403 (1961); F.T.C. v. Nash-Finch Co., 110 U.S.App.D.C. 5, 288 F.2d 407 (1961). From this, the court indicated that this change of position by the Commission pointed up its conclusion that 'the repeal in this case was express.' 356 F.2d, at 257.
III.
10
We cannot agree. One error of the Court of Appeals seems to be the limited scope it gives the phrase 'proceeding initiated before the date of enactment of this Act.' (Emphasis supplied.) The Court of Appeals thought this included only the application for enforcement under paragraph three or the petition for review under paragraph four of the original § 11 of the Act. We think not. We believe the word 'proceeding' was used in the sense that it was employed throughout § 11 prior to the Amendment, namely the action brought by the Commission against the alleged violator of the Clayton Act. It follows that the 'proceeding initiated' meant the filing of the 'proceeding' before the Commission and was not limited to the application for enforcement or petition for review. This is made clear to us by the last sentence of § 2: 'Each such proceeding shall be governed by the provisions of such section (§ 11 of the Clayton Act) as they existed on the day preceding the date of enactment of this Act.' We emphasize that here the Congress said 'section' not paragraphs 3—7, inclusive, of the section. It follows that the provisions of the entire section were preserved intact and governed all orders predating the Finality Act. The apparent reason for this variance from the procedure of the Wheeler-Lea Act was because of the heavy penalties which the Congress attached to the violation of final orders of the Commission under the Finality Act.2 It, therefore, wished to make clear that not only applications for enforcement of pre-Finality Act orders and petitions for review of such orders but any action of the Commission with reference to pre-Finality Act orders would be governed by the provisions of § 11 of the Clayton Act 'as they existed on the day preceding the date of enactment of this (Finality) Act.' We believe that this interpretation is implicit in our opinion on the second review by this Court of Federal Trade Comm'n v. Henry Broch & Co., 368 U.S. 360, 82 S.Ct. 431, 7 L.Ed.2d 353 (1962), where Mr. Justice Brennan held that the 1959 amendments to § 11 of the Clayton Act 'do not apply to enforcement of the instant order.' At 365, 82 S.Ct. at 434. In note 5, on p. 365, 82 S.Ct. on p. 434, the opinion pointed out that the order 'was entered by the Commission on December 10, 1957. The procedures enacted by the 1959 amendments therefore do not apply to it. See Sperry Rand Corp. v. Federal Trade Comm'n, 110 U.S.App.D.C. 1, 288 F.2d 403.' It is significant that Sperry Rand specifically held that '(e) nforcement due to any violation of the (pre-Finality Act) consent order which might occur is left to the provisions of the statute as they existed at the time the order was entered.' At 4, 288 F.2d, at 406. Such a holding here is supported not only by the fact that the Finality Act nowhere denies the Commission the power to enforce pre-existing orders. At most its provisions are silent with regard to such authority. Furthermore, the caption of the Finality Act itself as well as the legislative history gives added weight to our interpretation. The caption recites the purpose of the Act to be 'to provide for the more expeditious enforcement of cease and desist orders * * *.' 73 Stat. 243. Such a purpose would certainly not include making approximately 400 orders dead letters. As we have noted previously the legislative history shows beyond contradiction that not only its sponsors but the responsible committees reporting the bill for passage believed 'that this legislation will strengthen the enforcement provisions of section 11 of the Clayton Act * * *.' S.Rep. No. 83, supra, at 3. Giving some 400 proven violators absolution from prior orders of the Commission would hardly comport with such a congressional intent. The Court of Appeals bottomed its opinion on the language used in the opening sentence of subsection (c) of the Finality Act reading that the 'third, fourth, fifth, sixth, and seventh paragraphs of' § 11 of the Clayton Act 'are amended to read as follows.' But we must read the Act as a whole as we have § 2 heretofore. And in so doing we cannot, as Mr. Justice Douglas said, ignore the 'common sense, precedent, and legislative history' of the setting that gave it birth. United States v. Standard Oil Co., 384 U.S. 224, 225, 86 S.Ct. 1427, 1428, 16 L.Ed.2d 492 (1966). And as Mr. Justice Holmes said many years ago:
11
'The Legislature has the power to decide what the policy of the law shall be, and if it has intimated its will, however indirectly, that will should be recognized and obeyed. The major premise of the conclusion expressed in a statute, the change of policy that induces the enactment, may not be set out in terms but it is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before.' Johnson v. United States, 1 Cir., 163 F. 30, 32, 18 L.R.A., N.S., 1194 (1908).
12
But whether or not we are correct in our application and interpretation we have concluded that a sensible construction of the Finality Act compels the opposite result to that reached by the Court of Appeals. That court would grant review and enforcement of proceedings under the old procedures where the petition for review or the application for enforcement was filed prior to the date of the enactment of the Finality Act but orders from which no petition or application was ever filed would not be capable of enforcement. This would subject violators who sought review to the sanctions of the section but those who had not sought review would be free to violate orders against them with impunity. Consequently, almost 400 separate violators would be forgiven. It is no answer to say that the Commission could file new complaints which would come under the new procedures. The fact is that some 400 particularized orders written to correct specific mischief violative of the Clayton Act would be unenforceable. There is quite a difference between proving a violation of the Clayton Act and a failure to obey a specific order of the Commission. Long, tedious, and costly investigation, proof of injury to competition as well as other affirmative requirements necessary to the issuance of an order and many defenses such as cost justification, meeting competition, exclusive dealing, etc., are all avoided. Particularly in merger cases would the enforcement of prior orders be simplified and expedited.
13
In view of all of these considerations we cannot say that the author of the Finality Act and its sponsors—all stalwart champions of effective antitrust enforcement—would have intended to strip the Commission of all of its enforcement weapons with reference to some 400 concerns already adjudged to be Clayton Act violators. Nor could we ascribe to a Congress that has so clearly expressed its will any such result. We can only say that as between choices Congress rejected only one, namely, that of the Wheeler-Lea Act's 60-day review provision. Certainly it intended that the old procedures would apply to proceedings on petition for review or application for enforcement. There is no evidence that it intended to put the pre-1959 orders into the discard. We remain more faithful to the Act, we think, when we find that they too are enforceable under the old procedures.
14
Reversed and remanded.
15
Mr. Justice HARLAN, concurring.
16
While I confess to great difficulty in driving through the statute to the Court's conclusion, I am content to acquiesce in my Brother CLARK's opinion with the added help of the Second Circuit's opinion in F.T.C. v. Standard Motor Products, Inc., 371 F.2d 613.
1
See Federal Trade Comm'n v. Pacific-Gamble-Robison Co., No. 18260 (C.A.9th Cir. 1962); Federal Trade Comm'n v. Benrus Watch Co., No. 27752 (C.A.2d Cir. 1962), and the instant case.
2
The penalties were raised to $5,000 for each day in which a violation continued.
| 78
|
386 U.S. 258
87 S.Ct. 996
18 L.Ed.2d 33
Harold SWENSON, Wardenv.Clarence R. BOSLER.
No. 759.
March 13, 1967.
Norman H. Anderson, Atty. Gen. of Missouri, and J. Gordon Siddens and Howard L. MacFadden, Asst. Attys. Gen., for petitioner.
PER CURIAM.
1
Petitioner seeks certiorari from a judgment of the Court of Appeals holding invalid under the doctrine of Douglas v. State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, the State of Missouri's former practice of deciding direct criminal appeals by convicted indigent defendants without the appointment of appellate counsel. We grant the writ of certiorari and, for the reasons below, we affirm.
2
Under Missouri criminal practice, a convicted defendant's motion for new trial must set forth in detail his specific grounds for relief; and in general, a Missouri appellate court may not consider on appeal questions which were not first presented to the trial court in a motion for new trial. See State v. Mallory, 336 S.W.2d 383 (Mo.Sup.Ct.), cert. denied, 364 U.S. 852, 81 S.Ct. 99, 5 L.Ed.2d 75; State v. Davis, 251 S.W.2d 610, 615—616 (Mo.Sup.Ct.); Mo.Sup.Ct.Rule Crim.Proc. 27.20, V.A.M.R. Prior to March 1, 1964, Missouri had no rule requiring appointment of appellate counsel for indigent defendants.* If trial counsel filed a motion for new trial and notice of appeal and then withdrew from the case, the Supreme Court of Missouri would require preparation of the transcript for appeal and then would consider the questions raised by the motion for new trial on the basis of pro se briefs by the defendant-appellant, or on no briefs at all. This is what occurred in this case. We agree with the Court of Appeals that this procedure violated respondent's Fourteenth Amendment rights, as defined in Douglas, even though respondent's trial counsel filed the notice of appeal and a motion for new trial which specifically designated the issues which could be considered on direct appeal. The assistance of appellate counsel in preparing and submitting a brief to the appellate court which defines the legal principles upon which the claims of error are based and which designates and interprets the relevant portions of the trial transcript may well be of substantial benefit to the defendant. This advantage may not be denied to a criminal defendant, solely because of his indigency, on the only appeal which the State affords him as a matter of right.
3
Petitioner contends that, since the District Court did not hold a hearing to determine whether respondent actually requested the appointment of appellate counsel, the record as it presently exists does not support the Court of Appeals' express conclusion that respondent did make such a request. Respondent included in the appendix to his petition to the District Court a copy of the full transcript of his Missouri trial, the accuracy of which petitioner does not contest. We think the documents contained in this transcript demonstrate that respondent did indicate to the Missouri courts his desire for counsel on appeal. But even if such a request had not been made, we do not think its absence would amount to a waiver of respondent's rights. It is now settled 'that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request.' Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 889, 8 L.Ed.2d 70. When a defendant whose indigency and desire to appeal are manifest does not have the services of his trial counsel on appeal, it simply cannot be inferred from defendant's failure specifically to request appointment of appellate counsel that he has knowingly and intelligently waived his right to the appointment of appellate counsel.
4
Affirmed.
*
On July 9, 1963, after the Douglas decision, Missouri altered its appellate practice by adding Subsection (c) to Rule 29.01 of the Supreme Court's Rules of Criminal Procedure, effective March 1, 1964:
'(c) When a defendant is convicted of a felony, is sentenced therefor and desires to appeal, if it appears from a showing of indigency that the defendant is unable to employ counsel the trial court shall appoint counsel to represent him upon such appeal; such counsel may, in the discretion of the court, be the same counsel who represented the defendant at the trial or other counsel.'
| 12
|
386 U.S. 213
87 S.Ct. 988
18 L.Ed.2d 1
Peter H. KLOPFER, Petitioner,v.STATE OF NORTH CAROLINA.
No. 100.
Argued Dec. 8, 1966.
Decided March 13, 1967.
Wade H. Penny, Jr., Durham, N.C., for petitioner.
Andrew A. Vanore, Jr., Raleigh, N.C., for respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
The question involved in this case is whether a State may indefinitely postpone prosecution on an indictment without stated justification over the objection of an accused who has been discharged from custody. It is presented in the context of an application of an unusual North Carolina criminal procedural device known as the 'nolle prosequi with leave.'
2
Under North Carolina criminal procedure, when the prosecuting attorney of a county, denominated the solicitor, determines that he does not desire to proceed further with a prosecution, he may take a nolle prosequi, thereby declaring 'that he will not, at that time, prosecute the suit further. Its effect is to put the defendant without day, that is, he is discharged and permitted to go whithersoever he will, without entering into a recognizance to appear at any other time.' Wilkinson v. Wilkinson, 159 N.C. 265, 266—267, 74 S.E. 740, 741, 39 L.R.A.,N.S., 1215 (1912). But the taking of the nolle prosequi does not permanently terminate proceedings on the indictment. On the contrary, 'When a nolle prosequi is entered, the case may be restored to the trial docket when ordered by the judge upon the solicitor's application.' State v. Klopfer, 266 N.C. 349, 350, 145 S.E.2d 909, 910 (1966). And if the solicitor petitions the court to nolle prosequi the case 'with leave,' the consent required to reinstate the prosecution at a future date is implied in the order 'and the solicitor (without further order) may have the case restored for trial.' Ibid. Since the indictment is not discharged by either a nolle prosequi or nolle prosequi with leave, the statute of limitations remains tolled. State v. Williams, 151 N.C. 660, 65 S.E. 908 (1909).
3
Although entry of a nolle prosequi is said to be 'usually and properly left to the discretion of the Solicitor,' State v. Moody, 69 N.C. 529, 531 (1873), early decisions indicate that the State was once aware that the trial judge would have to exercise control over the procedure to prevent oppression of defendants. See State v. Smith, 129 N.C. 546, 40 S.E. 1 (1901); State v. Thornton, 35 N.C. 256 (1852). But, in the present case, neither the court below nor the solicitor offers any reason why the case of petitioner should have been nolle prossed except for the suggestion of the Supreme Court that the solicitor, having tried the defendant once and having obtained only a mistrial, 'may have concluded that another go at it would not be worth the time and expense of another effort.' 266 N.C., at 350, 145 S.E.2d, at 910. In his brief in this Court, the Attorney General quotes this language from the opinion below in support of the judgment.
4
Whether this procedure is presently sustained by the North Carolina courts under a statute or under their conception of the common-law procedure is not indicated by the opinion of the court, the transcript or the briefs of the parties in the present case. The only statutory reference to a nolle prosequi is in § 15—175, General Statutes of North Carolina,1 which on its face does not apply to the facts of this case. Perhaps the procedure's genesis lies in early nineteenth century decisions of the State's Supreme Court approving the use of a nolle prosequi with leave to reinstate the indictment, although those early applications of the procedure were quite different from those of the period following enactment of § 15—175. Compare State v. Thompson, 10 N.C. 613 (1825), and State v. Thornton, 35 N.C. 256 (1852) (capias issued immediately after entry of the nolle prosequi with leave), with State v. Smith, 170 N.C. 742, 87 S.E. 98 (1915) (capias issued eight years after a nolle prosequi with leave was taken, even though the fendant had been available for trial in 1907).
5
The consequence of this extraordinary criminal procedure is made apparent by the case before the Court. A defendant indicted for a misdemeanor may be denied an opportunity to exonerate himself in the discretion of the solicitor and held subject to trial, over his objection, throughout the unlimited period in which the solicitor may restore the case to the calendar. During that period, there is no means by which he can obtain a dismissal or have the case restored to the calendar for trial.2 In spite of this result, both the Supreme Court and the Attorney General state as a fact, and rely upon it for affirmance in this case, that this procedure as applied to the petitioner placed no limitations upon him, and was in no way violative of his rights. With this we cannot agree.
6
This procedure was applied to the petitioner in the following circumstances: On February 24, 1964, petitioner was indicted by the grand jury of Orange County for the crime of criminal trespass, a misdemeanor punishable by fine and imprisonment in an amount and duration determined by the court in the exercise of its discretion.3 The bill charged that he entered a restaurant on January 3, 1964, and, 'after being ordered * * * to leave the said premises, wilfully and unlawfully refused to do so, knowing or having reason to know that he * * * had no license therefor * * *.' Prosecution on the indictment began with admirable promptness during the March 1964 Special Criminal Session of the Superior Court of Orange County; but, when the jury failed to reach a verdict, the trial judge declared a mistrial and ordered the case continued for the term.
7
Several weeks prior to the April 1965 Criminal Session of the Superior Court, the State's solicitor informed petitioner of his intention to have a nolle prosequi with leave entered in the case. During the session, petitioner, through his attorney, opposed the entry of such an order in open court. The trespass charge, he contended, was abated by the Civil Rights Act of 1964 as construed in Hamm v. City of Rock Hill, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300 (1964). In spite of petitioner's opposition, the court indicated that it would approve entry of a nolle prosequi with leave if requested to do so by the solicitor. But the solicitor declined to make a motion for a nolle prosequi with leave. Instead, he filed a motion with the court to continue the case for yet another term, which motion was granted.
8
The calendar for the August 1965 Criminal Session of the court did not list Klopfer's case for trial. To ascertain the status on his case, petitioner filed a motion expressing his desire to have the charge pending against him 'permanently concluded in accordance with the applicable laws of the State of North Carolina and of the United States as soon as is reasonably possible.' Noting that some 18 months had elapsed since the indictment, petitioner, a professor of zoology at Duke University, contended that the pendency of the indictment greatly interfered with his professional activities and with his travel here and abroad. 'Wherefore,' the motion concluded, 'the defendant * * * petitions the Court that the Court in the exercise of its general supervisory jurisdiction inquire into the trial status of the charge pending against the defendant and * * * ascertain the intention of the State in regard to the trial of said charge and as to when the defendant will be brought to trial.'
9
In response to the motion, the trial judge considered the status of petitioner's case in open court on Monday, August 9, 1965, at which time the solicitor moved the court that the State be permitted to take a nolle prosequi with leave. Even though no justification for the proposed entry was offered by the State, and, in spite of petitioner's objection to the order, the court granted the State's motion.
10
On appeal to the Supreme Court of North Carolina, petitioner contended that the entry of the nolle prosequi with leave order deprived him of his right to a speedy trial as required by the Fourteenth Amendment to the United States Constitution. Although the Supreme Court acknowledged that entry of the nolle prosequi with leave did not permanently discharge the indictment, it nevertheless affirmed. Its opinion concludes:
11
'Without question a defendant has the right to a speedy trial, if there is to be a trial. However, we do not understand the defendant has the right to compel the State to prosecute him if the state's prosecutor, in his discretion and with the court's approval, elects to take a nolle prosequi. In this case one jury seems to have been unable to agree. The solicitor may have concluded that another go at it would not be worth the time and expense of another effort.
12
'In this case the solicitor and the court, in entering the nolle prosequi with leave followed the customary procedure in such cases. Their discretion is not reviewable under the facts disclosed by this record. The order is affirmed.' 266 N.C., at 350—351, 145 S.E.2d, at 910.
13
The North Carolina Supreme Court's conclusion—that the right to a speedy trial does not afford affirmative protection against an unjustified postponement of trial for an accused discharged from custody—has been explicitly rejected by every other state court which has considered the question.4 That conclusion has also been implicitly rejected by the numerous courts which have held that a nolle prossed indictment may not be reinstated at a subsequent term.5
14
We, too, believe that the position taken by the court below was erroneous. The petitioner is not relieved of the limitations placed upon his liberty by this prosecution merely because its suspension permits him to go 'whithersoever he will.' The pendency of the indictment may subject him to public scorn and deprive him of employment, and almost certainly will force curtailment of his speech, associations and participation in unpopular causes. By indefinitely prolonging this oppression, as well as the 'anxiety and concern accompanying public accusation,'6 the criminal procedure condoned in this case by the Supreme Court of North Carolina clearly denies the petitioner the right to a speedy trial which we hold is guaranteed to him by the Sixth Amendment of the Constitution of the United States.
15
While there has been a difference of opinion as to what provisions of this Amendment to the Constitution apply to the States through the Fourteenth Amendment, that question has been settled as to some of them in the recent cases of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). In the latter case, which dealt with the confrontation-of-witnesses provision, we said:
16
'In the light of Gideon, Malloy, and other cases cited in those opinions holding various provisions of the Bill of Rights applicable to the States by virtue of the Fourteenth Amendment, the statements made in West (West v. State of Louisiana, 194 U.S. 258, 24 S.Ct. 650, 48 L.Ed. 965) and similar cases generally declaring that the Sixth Amendment does not apply to the States can no longer be regarded as the law. We hold that petitioner was entitled to be tried in accordance with the protection of the confrontation guarantee of the Sixth Amendment, and that that guarantee, like the right against compelled self-incrimination, is 'to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.' Malloy v. Hogan, supra, 378 U.S. (1), at 10, 84 S.Ct. (1489), at 1495 (12 L.Ed.2d 653).'7
17
We hold here that the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment. That right has its roots at the very foundation of our English law heritage. Its first articulation in modern jurisprudence appears to have been made in Magna Carta (1215), wherein it was written, 'We will sell to no man, we will not deny or defer to any man either justice or right';8 but evidence of recognition of the right to speedy justice in even earlier times is found in the Assize of Clarendon (1166).9 By the late thirteenth century, justices, armed with commissions of gaol delivery and/or oyer and terminer10 were visiting the countryside three times a year.11 These justices, Sir Edward Coke wrote in Part II of his Institutes, 'have not suffered the prisoner to be long detained, but at their next coming have given the prisoner full and speedy justice, * * * without detaining him long in prison.'12 To Coke, prolonged detention without trial would have been contrary to the law and custom of England;13 but he also believed that the delay in trial, by itself, would be an improper denial of justice. In his explication of Chapter 29 of the Magna Carta, he wrote that the words 'We will sell to no man, we will not deny or defer to any man either justice or right' had the following effect:
18
'And therefore, every subject of this realme, for injury done to him in bonis terris, vel persona, by any other subject, be he ecclesiasticall, or temporall, free, or bond, man, or woman, old, or young, or be he outlawed, excommunicated, or any other without exception, may take his remedy by the course of the law, and have justice, and right for the injury done to him, freely without sale, fully without any deniall, and speedily without delay.'14
19
Coke's Institutes were read in the American Colonies by virtually every student of the law.15 Indeed, Thomas Jefferson wrote that at the time he studied law (1762—1767), 'Coke Lyttleton was the universal elementary book of law students.'16 And to John Rutledge of South Carolina, the Institutes seemed 'to be almost the foundation of our law.'17 To Coke, in turn, Magna Carta was one of the fundamental bases of English liberty.18 Thus, it is not surprising that when George Mason drafted the first of the colonial bills of rights,19 he set forth a principle of Magna Carta, using phraseology similar to that of Coke's explication: '(I)n all capital or criminal prosecutions,' the Virginia Declaration of Rights of 1776 provided, 'a man hath a right * * * to a speedy trial * * *.'20 That this right was considered fundamental at this early period in our history is evidenced by its guarantee in the constitutions of several of the States of the new nation,21 as well as by its prominent position in the Sixth Amendment. Today, each of the 50 States guarantees the right to a speedy trial to its citizens.
20
The history of the right to a speedy trial and its reception in this country clearly establish that it is one of the most basic rights preserved by our Constitution.
21
For the reasons stated above, the judgment must be reversed and remanded for proceedings not inconsistent with the opinion of the Court. It is so ordered.
22
Judgment reversed and case remanded.
23
Mr. Justice STEWART concurs in the result.
24
Mr. Justice HARLAN, concurring in the result.
25
While I entirely agree with the result reached by the Court, I am unable to subscribe to the constitutional premises upon which that result is based—quite evidently the viewpoint that the Fourteenth Amendment 'incorporates' or 'absorbs' as such all or some of the specific provisions of the Bill of Rights. I do not believe that this is sound constitutional doctrine. See my opinion concurring in the result in Pointer v. State of Texas, 380 U.S. 400, 408, 85 S.Ct. 1065, 1070, 13 L.Ed.2d 923.
26
I would rest decision of this case not on the 'speedy trial' provision of the Sixth Amendment, but on the ground that this unusual North Carolina procedure, which in effect allows state prosecuting officials to put a person under the cloud of an unliquidated criminal charge for an indeterminate period, violates the requirement of fundamental fairness assured by the Due Process Clause of the Fourteenth Amendment. To support that conclusion I need only refer to the traditional concepts of due process set forth in the opinion of THE CHIEF JUSTICE.
1
N.C.Gen.Stat. § 15—175 (1965):
'A nolle prosequi 'with leave' shall be entered in all criminal actions in which the indictment has been pending for two terms of court and the defendant has not been apprehended and in which a nolle prosequi has not been entered, unless the judge for good cause shown shall order otherwise The clerk of the superior court shall issue a capias for the arrest of any defendant named in any criminal action in which a nolle prosequi has been entered when he has reasonable ground for believing that such defendant may be arrested or upon the application of the solicitor of the district. When any defendant shall be arrested it shall be the duty of the clerk to issue a subpoena for the witnesses for the State indorsed on the indictment.'
The provision was originally enacted in 1905.
2
On oral argument, counsel for the State informed the Court that a North Carolina indictment could be quashed only if it contained a vitiating defect. See also N.C.Gen.Stat. §§ 15—153, 15 155 (1965).
3
N.C.Gen.Stat. § 14—134 (Supp.1965). Although not expressly limited by statute, the extent of punishment is limited by N.C.Const.1868, Art. I, § 14 ('Excessive bail should not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted'). See State v. Driver, 78 N.C. 423 (1878). Decisions of the state courts indicate that imprisonment for up to two years would not be an 'unusual punishment.' See, e.g., State v. Farrington, 141 N.C. 844, 53 S.E. 954 (1906). The constitutional limitation upon the amount of the fine has not been judicially determined.
4
See Rost v. Municipal Court of Southern Judicial District, 184 Cal.App.2d 507, 7 Cal.Rptr. 869, 85 A.L.R.2d 974 (1st Dist. 1960); Kistler v. State, 64 Ind. 371 (1879); Jones v. Commonwealth, 114 Ky. 599, 71 S.W. 643 (1903); Barrett v. State, 155 Md. 636, 142 A. 96 (1928); Hicks v. Judge of Recorder's Court of Detroit, 236 Mich. 689, 211 N.W. 35 (1926); State v. Artz, 154 Minn. 290, 191 N.W. 605 (1923).
See also Jacobson v. Winter, 91 Idaho 11, 415 P.2d 297 (1966); People v. Bryarly, 23 Ill.2d 313, 178 N.E.2d 326 (1961); People v. Prosser, 309 N.Y. 353, 130 N.E.2d 891, 57 A.L.R.2d 295 (1955); State v. Couture, 156 Me. 231, 163 A.2d 646 (1960); State v. Keefe, 17 Wyo. 227, 98 P. 122, 22 L.R.A., N.S., 896 (1908) (the right to a speedy trial may be violated by
undue delay in bringing a prisoner confined within the State to trial, even though he is not held in custody under the indictment).
Dicta in decisions of the Colorado, Iowa, and Utah courts clearly indicate that these States would also hold that the speedy trial right would protect a defendant in petitioner's position: see In re Miller, 66 Colo. 261, 263—264, 180 P. 749, 750—751 (1919); Pines v. District Court of Woodbury County, 233 Iowa 1284, 1294, 10 N.W.2d 574, 580 (1943); State v. Mathis, 7 Utah 2d 100, 103, 319 P.2d 134, 136 (1957).
Although Pennsylvania has not decided the question presented by this case, decisions of its Supreme Court indicate that the 'right to a speedy trial' is only applicable to a man held in prison. See Commonwealth ex rel. Smith v. Patterson, 409 Pa. 500, 187 A.2d 278 (1963). But in that case, the Commonwealth's Supreme Court held that the delay in trying the defendant and the failure to give him notice of the pendency of a complaint for eight years constituted a denial of due process. Moreover, Rule 316 of the Commonwealth's rules of criminal procedure, 19 P.S.Appendix, authorizes the court to dismiss a case which has not been brought to trial within a 'reasonable time.'
By rule or legislation in 17 States, any defendant, whether at large or in custody, whose trial has been unduly delayed is entitled to a dismissal. See Ariz. Rule Crim.Proc. 236, 17 A.R.S.; Cal.Pen.Code § 1382; Ga.Code Ann. § 27—1901 (1953); Idaho Code Ann. § 19—3501 (1948); Iowa Code § 795.2 (Supp.1966); La.Rev.Stat. §§ 15:7.8—15:7.11 (Supp.1962); Me.Rev.Stat.Ann., Tit. 15, § 1201 (1964); Mont.Rev.Codes Ann. § 94—9501 (1947); Nev.Rev.Stat. § 178.495; N.J.Rev.Rule Crim.Proc. 3:11—3 (Supp.1966); N.D.Cent.Code § 29—18—01 (1960); Okla.Stat., Tit. 22, § 812 (1951); Ore.Rev.Stat. § 134.120; S.D.Code § 34.2203 (Supp.1960); Utah Code Ann. § 77—51—1 (1953); Wash.Rev.Code § 10.46.010; W.Va.Code Ann. § 6210 (1961).
5
Thirty States continue to permit a prosecuting official to enter a nolle prosequi. Legislation or court decisions in 13 of these proscribe reinstatement of the indictment at a subsequent term. See Lawson v. People, 63 Colo. 270, 165 P. 771 (1917); Price v. Cobb, 60 Ga.App. 59, 61, 3 S.E.2d 131, 133 (1939) (by implication); State ex rel. Jones v. Newell, 117 So.2d 752 (D.C.App.Fla., 2d Dist., 1960); State v. Wong, 47 Haw. 361, 389 P.2d 439 (1964); People v.
Watson, 394 Ill. 177, 68 N.E.2d 265 (1946), cert. denied, 329 U.S. 769, 67 S.Ct. 130, 91 L.Ed. 662; La.Rev.Stat., § 15:328 (1950); Barrett v. State, 155 Md. 363, 142 A. 96 (1928); State v. Montgomery, 276 S.W.2d 166 (Mo.1955); In re Golib, 99 Ohio App. 88, 130 N.E.2d 855 (1955); State ex rel. Hobbs v. Murrell, 170 Tenn. 152, 93 S.W.2d 628 (1936); Ex parte Isbell, 48 Tex.Cr.R. 252, 87 S.W. 145 (1905); Dudley v. State, 55 W.Va. 472, 47 S.E. 285 (1904); Woodworth v. Mills, 61 Wis. 44, 20 N.W. 728 (1884).
Alabama permits reinstatement of an indictment nolle prossed with leave, but only if the defendant cannot be brought before the court. See Ala.Code, Tit. 15, § 251 (Supp.1965). Thus this procedure is similar to that of filing away the indictment, discussed below.
Of the remaining States, only North Carolina and Pennsylvania have held that a nolle prossed indictment could be reinstated at a subsequent term. See Commonwealth v. McLaughlin, 293 Pa. 218, 142 A. 213 (1928).
Several States permit the removal of the indictment from the trial docket with leave to reinstate at some indefinite future date. But in each, use of the procedure has been limited to situations in which the defendant cannot be brought before the court or where he has consented to the removal. See, e.g., People v. Fewkes, 214 Cal. 142, 4 P.2d 538 (1931); State v. Dix, 18 Ind.App. 472, 48 N.E. 261 (1897); Lifshutz v. State, 236 Md. 428, 204 A.2d 541 (1964), cert. denied, 380 U.S. 953, 85 S.Ct. 1087, 13 L.Ed.2d 971; Commonwealth v. Dowdican's Bail, 115 Mass. 113 (1874) (indictment may be filed away only after verdict and then only with the consent of the accused); Gordon v. State, 127 Miss. 396, 90 So. 95, 18 A.L.R. 1150 (1921) (consent of defendant necessary); Rush v. State, 254 Miss. 641, 182 So.2d 214 (1966) (but not if defendant was in a mental institution at the time the indictment was retired to the files). At one time, Illinois decisions indicated that when an accused was imprisoned within the State on another charge an indictment might be filed away without his consent. See, e.g., People v. Kidd, 357 Ill. 133, 191 N.E. 244 (1934). But these decisions have since been overruled. See People v. Bryarly, 23 Ill.2d 313, 178 N.E.2d 326 (1961).
6
United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966).
7
380 U.S., at 406, 85 S.Ct. at 1069.
8
Magna Carta, c. 29 (c. 40 of King John's Charter of 1215) (1225), translated and quoted in Coke, The Second Part of the Institutes of the Laws of England 45 (Brooke, 5th ed., 1797).
9
'4. And when a robber or murderer or thief or receiver of them has been arrested through the aforesaid oath, if the justices are not about to come speedily enough into the country where they have been taken, let the sheriffs send word to the nearest justice by some well-informed person that they have arrested such men, and the justices shall send back word to the sheriffs informing them where they desire the men to be brought before them; and let the sheriffs bring them before the justices.' 2 English Historical Documents 408 (1953).
10
An example of the Commission of gaol delivery is set forth in Goebel, Cases and Materials on the Development of Legal Institutions 53 (7th rev. 1946):
'The lord king to his beloved and faithful Stephen de Segrave and William Fitz Warin, greeting. Know that we have appointed you justices to deliver our gaol at Gloucester, in accordance with the custom of our realm, of the prisoners arrested and held there. And hence we order you that in company with the coroners of the county of Gloucester you convene at Gloucester on the morrow of the festival of the Holy Trinity in the twelfth year of our reign (Monday, May 22, 1228), to deliver the aforementioned gaol, as aforesaid, for we have ordered our sheriff of Gloucestershire that at the aforesaid time and place he cause to come before you all the prisoners in the aforesaid gaol and all persons attached to appear against them and on account of them. In witness whereof, etc. Dated April 20, in the twelfth year of our reign.'
'The judges commissioned in a general oyer and terminer commission,' Professor Goebel writes, 'are ordered to inquire by grand jury of named crimes, from treasons to the pettiest offence, as to all particulars and to hear and determine these according to the law and custom of the realm.' Id., at 54.
11
Id., at 54.
12
Coke, op. cit. supra, n. 8, at 43.
13
See Ibid.
14
Id., at 55. 'Hereby it appeareth,' Coke stated in the next paragraph, 'that justice must have three qualities, it must be libera, quia nihil iniquius venali justitia; plena, quia justitia non debet claudicare; et celeris, quia dilatio est quaedam negatio; and then it is both justice and right.' Later in the explication of Chapter 29, Coke wrote that in conformity with the promise not to delay justice, all of the King's 'commissions of oier, and terminer, of goale delivery, of the peace, &c. have this clause, facturi quod ad justitiam pertinet secundum legem, and consuetudinem Angliae, that is, to doe justice and right, according to the rule of the law and custome of England * * *.'
15
See Warren, History of the American Bar 157—187 (1911); Meador, Habeas Corpus and Magna Carta 23—24 (1966).
16
Quoted in Warren, op. cit. supra, n. 15, at 174.
17
Quoted in Bowen, The Lion and the Throne 514 (1956).
18
See Coke, op. cit. supra, n. 8, at A4 (Proeme).
19
See 1 Rowland, The Life of George Mason 234—266 (1892).
20
See Va. Declaration of Rights, 1776, § 8.
21
See Del.Const., 1792, Art. I, § 7; Md. Declaration of Rights, 1776, Art. XIX; Pa. Declaration of Rights, 1776, Art. IX; Va. Declaration of Rights 1776, § 8. Mass.Const., 1780, Part I, Art. XI, provided:
'Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.'
This has been construed as guaranteeing to all citizens the right to a speedy trial. See Commonwealth v. Hanley, 337 Mass. 384, 149 N.E.2d 608, 66 A.L.R.2d 222 (1958). A similar provision was included in the New Hampshire Constitution of 1784, Part I, Art. XIV.
Kentucky, Tennessee, and Vermont, the three States which were admitted to the Union during the eighteenth century, specifically guaranteed the right to a speedy trial in their constitutions. See Vt.Const. 1786, c. I, Art. XIV; Ky.Const.1792, Art. XII, § 10; Tenn.Const.1796, Art. XI, § 9.
| 01
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386 U.S. 237
87 S.Ct. 1003
18 L.Ed.2d 18
FEDERAL POWER COMMISSION, Petitioner,v.UNITED GAS PIPE LINE COMPANY et al. MEMPHIS LIGHT, GAS AND WATER DIVISION, Petitioner, v. UNITED GAS PIPE LINE COMPANY et al.
Nos. 127 and 128.
Argued Jan. 11, 1967.
Decided March 13, 1967.
Howard E. Wahrenbrock and Reuben Goldberg, Washington, D.C., for petitioners.
Thomas Fletcher, Houston, Tex., and William W. Brackett, Chicago Ill., for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
The question here is whether the Federal Power Commission, in the course of determining just and reasonable rates for United Gas Pipe Line Company (United) under § 4(e) of the Natural Gas Act, 52 Stat. 822, 15 U.S.C. § 717c(e), made a proper allowance for federal income taxes in calculating the company's cost of service. United claimed that in determining the cost of service its allowance for federal income taxes should be at the full 52% rate, or $12,751,454, for the test year. The Commission disagreed because United was a member of an affiliated group which during the five-year period of 1957—1961 had elected to file consolidated returns for federal income tax purposes,1 a fact which in the Commission's view required a reduced tax allowance in the company's cost of service. Had consolidated returns not been filed during the five-year period and had each company in the affiliated group instead filed separate returns, the total tax for the group would have been several million dollars more than was paid on a consolidated basis. This was so because on a consolidated basis consolidated losses serve to reduce consolidated income and because two members of the group, Union and Overseas, had net losses over the five-year period, thereby reducing taxes by $2,092,038 over those years.
2
To determine what the Commission considered the proper tax allowance for United's rate base, it allocated the actual consolidated taxes paid during the five-year period among the members of the group in accordance with a formula it had developed in Cities Service Gas Co., 30 F.P.C. 158, the order in which was set aside after issuance of the order in the instant case, 337 F.2d 97. As so allocated, United's annual share of the consolidated tax was 50.04% of its taxable income. Using this rate, the Commission allowed United $9,940,892 for federal income taxes instead of the $12,751,454 claimed by United. 31 F.P.C. 1180, 1191.
3
The Court of Appeals, relying on the decision of the Court of Appeals for the Tenth Circuit in Cities Service Gas Co. v. FPC, 337 F.2d 97, held 'the tax allocation as made by the Commission's order was contrary to the requirements which Congress had imposed', 357 F.2d 230, 231, and hence vacated and set aside the order. We reverse and remand to the Court of Appeals for further proceedings.
I.
4
In the Cities Service case the affiliated group filing the consolidated return was composed of both regulated and unregulated companies. Some of the unregulated companies had taxable income, others had even larger losses, and, therefore, as a group the unregulated companies showed a net loss over the representative years used by the Commission to forecast the future federal income tax element of cost of service. The regulated companies as a group, on the other hand, had taxable income in the same period. On an unconsolidated basis the individual members of the affiliated group would have paid a considerably larger total tax than was actually paid on the consolidated basis. The gas company whose tax allowance for rate purposes was being determined claimed that it was entitled to the full 52% of its own taxable income. Its position was that the Commission had no power at all to apply any of the losses of unregulated companies to reduce its tax allowance and hence its rates. The tax allowance was thus to be figured at 52% without regard to the taxes actually paid by the affiliated group on a consolidated basis, seemingly even if the group paid no tax at all.
5
For the Commission, however, the only real cost to the regulated company was related to the consolidated tax actually paid and incurred in connection with the other companies in the group. In the Commission's view, it was unacceptable to determine the cost of service on a hypothetical figure—to fix jurisdictional rates 'on the basis of converting a hypothetical tax payment into a prudent operating expense.' 30 F.P.C., at 162. It refused to accept the argument that 'Gas Company ratepayers should make Cities Service stockholders whole for the tax losses of nonregulated enterprises even though this means an allowance for taxes over and beyond that which the consolidated system as a whole actually paid.' Ibid. The Commission's function, it said, was to fix just and reasonable rates, not to insure that other affiliates would be made whole for their tax losses out of income from regulated enterprises. Thus the task was 'to determine the proportion of the consolidated tax which is reasonably attributable to the Gas Company vis-a-vis the other Cities Service affiliates.' Ibid.
6
To make this determination, the Commission devised a formula which in effect applied the losses of unregulated companies first to the gains of other unregulated companies.2 If a net taxable income remained in the unregulated group, the regulated companies would not share in the savings from the consolidated return and would be deemed to have paid a tax at the full 52% rate. But if losses of the unregulated companies exceeded their net income and hence reduced the taxes of the regulated group below what they would have paid had they filed separate returns, the consolidated tax paid would be allocated among the regulated companies in proportion to their taxable income. As applied to the facts in the Cities Service case, the formula resulted in a tax allowance of $5,866,847 rather than the $7,055,981 claimed by the Cities Service Gas Company.
7
The Court of Appeals set aside the Commission's order. In its view, the addition of the gas company's income to the consolidated return cost the affiliated group exactly 52% of the taxable income of the gas company, either in taxes paid or in a reduction of loss carry-forwards or carrybacks. The Commission's formula as applied was therefore held to appropriate losses of unregulated companies and to exceed the Commission's 'jurisdictional limits which require an effective separation of regulated and nonregulated activities for the determination of the ingredients of the rate base * * * mean(ing) a separation of profits and losses between regulated and nonregulated businesses in determining the tax allowance includible in the cost of service of the regulated company.' 337 F.2d 97, 101. Hence the court, relying on Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 65 S.Ct. 829, 89 L.Ed. 1206, and Panhandle Eastern Pipe Line Co. v. FPC, 324 U.S. 635, 65 S.Ct. 821, 89 L.Ed. 1241, set aside the Commission's order.
II.
8
In our view what the Commission did here did not exceed the powers granted to it by Congress. One of its statutory duties is to determine just and reasonable rates which will be sufficient to permit the company to recover its costs of service and a reasonable return on its investment. Cost of service is therefore a major focus of inquiry. Normally included as a cost of service is a proper allowance for taxes, including federal income taxes. The determination of this allowance, as a general proposition, is obviously within the jurisdiction of the Commission. Ratemaking is, of course subject to the rule that the income and expense of unregulated and regulated activities should be segregated. But there is no suggestion in these cases that in arriving at the net taxable income of United the Commission violated this rule. Nor did it in our view in determining the tax allowance. United had not filed its own separate tax return. Instead it had joined with others in the filing of a consolidated return which resulted in the affiliated group's paying a lower total tax than would have been due had the affiliates filed on a separate-return basis. The question for the Commission was what portion of the single consolidated tax liability belonged to United. Other members of the group should not be required to pay any part of United's tax, but neither should United pay the tax of others. A proper allocation had to be made by the Commission. Respondents insist that in making the allocation the Commission would violate the statute unless in every conceivable circumstance, including this one, United is allowed an amount for taxes equal to what it would have paid had it filed a separate return. In their view United should never share in the tax savings inherent in a consolidated return, even if on a consolidated basis system losses exceed system gains and neither the affiliated group nor any member in it has any tax liability. This is an untenable position and we reject it. Rates fixed on this basis would give the pipeline company and its stockholders not only the fair return to which they are entitled but also the full amount of an expense never in fact incurred. In such circumstances, the Commission could properly disallow the hypothetical tax expense and hold that rates based on such an unreal cost of service would not be just and reasonable.
9
It is true that the avoidance of tax and the reduction of the tax allowance are accomplished only by applying losses of unregulated companies to the income of the regulated entity. But the Commission is not responsible for the use of consolidated returns. It is the tax law which permits an election by an appropriate group to file on a consolidated basis. The members of a group, as in these cases, themselves chose not to file separate returns and hence, for tax purposes, to mingle profits and losses of both regulated and unregulated concerns, apparently deeming it more desirable to attempt to turn the losses of some companies into immediate cash through tax savings rather than to count on the loss companies themselves having future profits against which prior losses could be applied. Such a private decision made by the affiliates, including the regulated member, has the practical and intended consequence of reducing the group's federal income taxes, perhaps to zero, as was true of one of the years involved in the Cities Service case. But when the out-of-pocket tax cost of the regulated affiliate is reduced, there is an immediate confrontation with the ratemaking principle that limits cost of service to expenses actually incurred. Nothing in Colorado Interstate or Panhandle forbids the Commission to recognize the actual tax saving impact of a private election to file consolidated returns. On the contrary, both cases support the power and the duty of the Commission to limit cost of service to real expenses.3
10
We think that in the proper circumstances the Commission has the power to reduce cost of service, and hence rates, based on the application of nonjurisdictional losses to jurisdictional income. Hence, the question becomes one of when and to what extent the tax savings flowing from the filing of a consolidated return are to be shared by the regulated company. Or, to put it in the Commission's words the issue is one of determining 'the proportion of the consolidated tax which is reasonably attributable to the Gas Company vis-a-vis (its) other * * * affiliates.' 30 F.P.C., at 162.
11
Viewing these cases in this light, we cannot say that the method the Commission chose to allocate the tax liability among the group members was erroneous or contrary to its statutory authority. Under its formula, the net losses and net income of unregulated companies are first set off one against the other, and the tax savings made possible by losses of unregulated enterprises are thus first allocated to the unregulated companies. Only if 'unregulated' losses exceed 'unregulated' income is the regulated company deemed to have enjoyed a reduction in its taxes as a result of the consolidated return. If there is more than one regulated company in the group, they will share the tax liability or tax saving in proportion to their taxable income.
12
It is true that the Commission includes in the regulated group companies which are regulated not by it but by state or local authorities and that under the Commission's formula enterprises not subject to its jurisdiction may be required to share the tax saving with the federally regulated concern. But we know of nothing in the decisions or the statutes governing the ratemaking activities of the Commission which dictates priority for the state-regulated company or which provides that the jurisdictional company may share in the tax saving only if the saving exceeds the separate-return tax liability of the state-regulated company. One could as well argue that for ratemaking purposes the company subject to federal regulation should have the first benefit of the tax saving. The Commission's formula, of course, prefers neither concern but allocates the tax liability equitably between each regulated member, without regard to the source of the regulation.4 'When Congress, as here, fails to provide a formula for the Commission to follow courts are not warranted in rejecting the one which the Commission employs unless it plainly contravenes the statutory scheme of regulation.' Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 589, 65 S.Ct. 829, 833, 89 L.Ed. 1206. 'If the total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry under the Act is at an end. The fact that the method employed to reach that result may contain infirmities is not then important.' FPC v. Hope Natural Gas Co., 320 U.S. 591, 602, 64 S.Ct. 281, 288, 88 L.Ed. 333.
13
There is no frustration of the tax laws inherent in the Commission's action. The affiliated group may continue to file consolidated returns and through this mechanism set off system losses against system income, including United's fair return income. The tax law permits this, but it does not seek to control the amount of income which any affiliate will have. Nor does it attempt to set United's rates. This is the function of the Commission, a function performed here by rejecting that part of the claimed tax expense which was no expense at all, by reducing cost of service and therefore rates, and by allowing United only a fair return on its investment.
14
Nor did the Commission 'appropriate' or extinguish the losses of any member of the affiliated group, regulated or unregulated. Those losses may still be applied to system gains and thereby be turned into instant cash. United may, of course, have less income than it did. If so, this will correspondingly reduce the opportunity of the affiliated group to use the losses of unregulated companies to appropriate United's income for the benefit of nonjurisdictional activities because United's income will no longer offset the same amount of losses which it once did. But the losses of unregulated companies are in no way destroyed. They remain with the system, readily available to reduce the taxes of the profitable affiliates to the maximum extent allowed by the tax law.
15
Another matter deserves some comment. It is said here that the Commission, in applying its tax allowance formula, erroneously failed to recognize and to take account of the fact that United has both jurisdictional and nonjurisdictional activities and income. Although this is a matter which might affect the results achieved in application of the Commission's formula, it is one to which the Court of Appeals has not addressed itself, and we think it appropriate for the issue to be raised there if the parties are so inclined.
16
For the reasons stated herein, the judgment of the Court of Appeals is reversed and the cases remanded for further proceedings consistent with this opinion.
17
It is so ordered.
18
Judgment of Court of Appeals reversed and case remanded.
19
MR. JUSTICE FORTAS took no part in the consideration or decision of these cases.
20
Mr. Justice HARLAN, whom Mr. Justice DOUGLAS and Mr. Justice STEWART join, dissenting.
21
My analysis of the elusive issue involved in these cases leads me to different conclusions from those reached by the Court and to agreement with the result reached by the Court of Appeals on the facts of these cases.
22
We are presented here with the problems of resolving an apparent conflict between the consolidated tax return provisions of the Internal Revenue Code,1 which permit an affiliated group of corporations, in this instance having some activities within and some without the Federal Power Commission's jurisdiction, to be treated as a 'business entity' for tax purposes,2 and the Natural Gas Act which imposes on the Commission the duty of observing 'the fundamental rate making principle (that) * * * requires a separation between regulated and unregulated costs and revenues.' Cities Service Gas Co., 30 F.P.C. 158, 162. The Court holds that the FPC may resolve the apparent dilemma by working only with 'the single consolidated tax liability' and determining by allocation what portion should be attributed to United for ratemaking purposes. By filing a consolidated return the members of the affiliated group are said 'to mingle profits and losses of both regulated and unregulated concerns' and thus create the necessity for allocation. The only serious problem the Court sees is the resolution of the question 'when and to what extent the tax savings flowing from the filing of a consolidated return are to be shared by the regulated company.' And the Court attempts to sidestep sharp analysis of that problem by resorting to the principle that, in ratemaking, the end in effect justifies the means.3
23
As will be developed more fully below, I think that the Court's resolution of the jurisdictional issue, while possessing a certain surface plausibility, mistakes the operation of the tax laws and permits the Commission to place regulatory presure on entities and business decisions wholly outside its jurisdiction under the Natural Gas Act. I think also that the Commission's formula cannot be upheld even under the Court's jurisdictional analysis. The formula indefensibly undercuts the policy of the tax laws, and thus cannot be considered a means of reaching 'just and reasonable' rates. Cf. El Paso Natural Gas Co. v. FPC, 5 Cir., 281 F.2d 567.
I.
24
The Court's 'single consolidated tax liability' approach ignores the fact that what is consolidated is corporate taxable incomes rather than the underlying revenues and deductions. Thus what has happened in this case is not the imposition of a single tax liability on the activities, as a whole, of the affiliated corporate group, but the reduction of the sum of separate 52% corporate tax liabilities by the setoff of tax losses against taxable income. Certainly there can be no contention that United would be entitled to anything other than a 52% of taxable income tax expense for ratemaking purposes absent tax losses in the consolidated group.4 The only question that properly arises on this record is whether the Commission could consider any setoff to have been made against United's tax liability for ratemaking purposes when nonjurisdictional activities could have taken full advantage of the setoffs belonging to the group and the group desired to allocate them to those activities.5
25
The 'tax losses' belonging to the group arose almost exclusively from the excess of depletion allowances over revenues in the accounts of the nonjurisdictional activities of Union and Overseas. Such allowances belonged to Union and Overseas and those corporations were entitled to their exclusive use. By agreeing to the consolidated return6 Union and Overseas agreed to deliver to the group, in any taxable year, whatever deductions they themselves could not then utilize in their own returns. The question how to allocate the benefit of those deductions among the members of the group would seem to be one for the group rather than the Commission when, as here, they do not arise from jurisdictional activities and can be used by group members to offset other nonjurisdictional gains. The courts have allowed good-faith business decisions to control such allocations for the vital purpose of determining which corporations shall pay the tax. See Case v. New York Central R. Co., 15 N.Y.2d 150, 256 N.Y.S.2d 607, 204 N.E.2d 643. And the tax Commissioner would permit the group to allocate for earnings and profits purposes in precisely the manner the group has chosen here.7 Although these decisions cannot control for ratemaking purposes, they do make it clear that the Commission's assertion of jurisdiction to make an allocation amounts to an order that certain nonjurisdictional assets be delivered up to jurisdictional use since there is no other compulsion for such an allocation. The Court asserts that '(o)ne could as well argue that for ratemaking purposes the company subject to federal regulation should have the first benefit of the tax saving.' But no authority or reason is given in support of this assertion, and, in my opinion, none can be found. The Commission has no authority to control the disposition of nonjurisdictional assets or the revenues or losses arising therefrom.
26
A parallel example will make even clearer the jurisdictional violation arising from the Commission's action here. If Union or Overseas had found itself with an excess quantity of steel pipe useful to all members of the group and had to negotiate its sale at a discount, one could hardly 'as well argue that for ratemaking purposes' United should be credited with the discount purchase when the pipe had been sold to Gas Corporation and United had been forced to purchase pipe on the market.8 And it could not be asserted that the Commission would have authority to order the transfer of the discount pipe to United.9
27
The far-reaching nonjurisdictional impact of the Commission's ruling gives further evidence that its action was one which Congress could not have contemplated and would not have condoned. As the dissenting Commissioners pointed out in the Cities Service Gas Co. proceeding, supra, 30 F.P.C., 175, the Commission has made jurisdictional rates turn on the corporate form assumed by nonjurisdictional activities. If, for example, the group had separately incorporated its nonjurisdictional operations, they would have shown taxable income in filing the consolidated return and no ratemaking allocation would be forthcoming. Similarly, since the Commission regulations themselves require separation of jurisdictional and nonjurisdictional operations within a single corporation, all the affiliates could merge into United and since nonjurisdictional activities would show a net taxable income, United would receive a 52% tax expense for ratemaking purposes.10 The congressional purpose in allowing consolidated returns was to eliminate exactly this kind of dependence on corporate form and leave corporations free to continue business in whatever corporate form best suited them. See, e.g., S.Rep. No. 960, 70th Cong., 1st Sess., p. 14. The congressional purpose in passing the Natural Gas Act was to prevent exploitation of the natural gas consumer. It was not to prevent natural gas companies from fully developing their nonjurisdictional opportunities, nor to control in any way the form of those activities, nor to appropriate nonjurisdictional assets for the benefit of consumers. Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 593—594, 65 S.Ct. 829, 835—836, 89 L.Ed. 1206.
28
The Court focuses its analysis on a case, not presented here, in which there are net nonjurisdictional losses and the consolidated tax liability is thus less than 52% of the taxable income of the jurisdictional activity. In such a case it is clear that nonjurisdictional assets are being used for tax purposes by the jurisdictional activity and it would blink reality not to recognize this use for ratemaking purposes, just as it would be wholly improper not to recognize the lower cost of discount pipe when a jurisdictional activity actually purchased it from a nonjurisdictional affiliate. When the group's election to file consolidated returns, or its intercorporate arrangements, require that nonjurisdictional deductions be utilized to set off jurisdictional income then, and only then, can there, in my opinion, be allocation.11 That, however, is not the situation here where nonjurisdictional income was fully capable of absorbing all nonjurisdictional losses.
II.
29
In a well-reasoned opinion in El Paso Natural Gas Co. v. FPC, 5 Cir., 281 F.2d 567, the court held that the Commission properly took account of depletion allowances arising from jurisdictional activities in fixing rates. The gas company there had argued that since Congress intended by the allowance to encourage exploration its benefit could not be passed on to the ratepayers. The court rejected that argument because it concluded that the proper place to reflect the congressional policy was in the ultimate rate of return allowed the company. It made explicit, however, that the Commission could not fail to take account of the congressional policy.
30
The Court's opinion departs from that sound analysis by sustaining a formula which allocates the entire 'tax saving' to the 'regulated' corporations and thus fails to take account of the congressional desire to benefit the loss corporations by allowing the profit corporations to retain earnings which could be passed on to them. The consolidated return is the horizontal equivalent of the vertical loss carry-forward and carryback provisions of the Internal Revenue Code. It allows the 'business unit' to recoup from the Government some of the loss which has been sustained and, in the words of Mr. Justice Jackson, 'it is probable that the intention * * * was to provide salvage for the loser * * *.' Western Pacific Railroad Case (Western Pacific R. Corp. v. Western Pacific R. Co.) 345 U.S. 247, 277, 73 S.Ct. 656, 671, 97 L.Ed. 986 (dissenting opinion). Any rate formula which does not provide a means of allocating benefit to the loss corporation cannot then be 'just and reasonable.' And if the group as a whole does not benefit from consolidation because the setoff advantages of losses are absorbed by the 'regulated' corporations and passed on to the ratepayers it is most unlikely that the loss corporations will achieve the benefit Congress intended them to have.12
31
The Court recognizes the adverse effect on the benefits flowing to the loss corporations, but contends there is no frustration of the tax laws because the losses 'remain with the system, readily available to reduce the taxes of the profitable affiliates * * *.' But this hypothetical 'availability' is meaningless for the 'instant cash' produced by the losses is passed on to the ratepayers rather than, as the tax laws intends, to the loss corporations. The fact that the group's tax payment is lower will not satisfy the intent behind the revenue provisions which was not to reduce government collections but to increase resources available to the business unit.13
III.
32
To summarize, I think, first, that no allocation whatever could be required by the Commission in these cases because nonjurisdictional income was more than sufficient to absorb all nonjurisdictional losses and there was no showing that jurisdictional activities would actually benefit from nonjurisdictional losses. To permit the FPC in such circumstances to allocate would in effect extend the Commission's jurisdiction to areas not encompassed within the authority given the Commission by the Natural Gas Act. While the basic purpose of the Act is, of course, to protect ratepayers, Congress has not carried that protection so far as to allow them to share in the benefits of the nonjurisdictional activities of a jurisdictional corporation or those of its corporate affiliates—a result which today's decision permits the Commission to achieve.
33
Second, in instances where the Commission may allocate, it seems to me that any allocation formula that does not take account of the underlying policy of the tax statute would 'plainly (contravene) the statutory scheme of regulation.' Colorado Interstate Gas Co. v. FPC, supra, 324 U.S. at 589, 65 S.Ct. at 833.
34
Third, while I thus agree with the Court of Appeals that United, on this record, is entitled to have its rates calculated on the premise of a full 52% tax liability, I cannot subscribe to such intimations as there may be in the opinion relied upon by that court that the Commission may never allocate in a consolidated tax situation.
35
I would affirm the judgment of the Court of Appeals.14
1
The election was pursuant to the privilege granted in § 1501 of the Internal Revenue Code of 1954, 26 U.S.C. § 1501. The other members of the affiliated group are United Gas Corporation, which wholly owns United and which is a gas distribution company subject to state and local regulation, and two other wholly owned subsidiaries of United Gas Corporation—Union Producing Company (Union), a domestic oil and gas producer whose interstate sales of gas are subject to the jurisdiction of the Federal Power Commission, and United Overseas Production Company (Overseas) which engaged in oil exploration in foreign countries.
2
'(T)he proper method to be applied in computing the Federal income taxes to be included in the cost of service of a regulated company where that company has joined in a consolidated tax return with affiliates is (1) separate the companies into regulated and unregulated groups, (2) determine the net aggregate taxable income of each group, and (3) apportion the net total consolidated tax liability over a representative period of time between the two groups, and among the companies in the regulated group, on the basis of their respective taxable incomes; provided that the allowance so computed for the regulated company shall not exceed what its tax liability would be for rate making purposes, if computed on a separate return basis.' 30 F.P.C. 158, 164.
As the Commission noted, id., at 162, it could draw little from the experience of state and local regulatory bodies dealing with the question whether the losses of affiliates should be taken into account in determining the tax allowance for regulated enterprises since the state and local solutions had not been consistent. It does not appear that the Commission drew on its own experience, although with a single exception the Commission seems to have accounted for consolidated tax savings in past ratemaking proceedings. See Penn-York Natural Gas Corp., 5 F.P.C. 33, 39 (1946); Hope Natural Gas Co., 10 F.P.C. 583, 612, aff'd, 10 F.P.C. 625 (1951); Atlantic Seaboard Corp., 11 F.P.C. 486, 515, aff'd, 11 F.P.C. 43, remanded on other grounds, 200 F.2d 108 (4 Cir., 1952); United Fuel Gas Co., 12 F.P.C. 251 (1953); Hope Natural Gas Co., 12 F.P.C. 342, 347 (1953); Home Gas Co., 13 F.P.C. 241, 246 (1954); United Fuel Gas Co., 23 F.P.C. 127, 134 (1960). But see Olin Gas Transmission Corp., 17 F.P.C. 685 (1956).
3
See Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 604 605, 65 S.Ct. 829, 840—841, 89 L.Ed. 1206; Panhandle Eastern Pipe Line Co. v. FPC, 324 U.S. 635, 648—649, 65 S.Ct. 821, 827—828, 89 L.Ed. 1241; El Paso Natural Gas Co. v. FPC, 5 Cir., 281 F.2d 567, 573, cert. denied sub nom. State of California v. FPC, 366 U.S. 912, 81 S.Ct. 1083, 6 L.Ed.2d 236; Alabama-Tennessee Natural Gas Co. v. FPC, 5 Cir., 359 F.2d 318, 331, cert. denied, 385 U.S. 847, 87 S.Ct. 69, 17 L.Ed.2d 78.
4
That some sharing of the tax savings with nonfederally regulated companies was in order seems to have been recognized by the members of the affiliated group. Under the internal allocation formula employed by the group, the tax liability assigned to United represented an effective tax rate of 48.8%.
1
26 U.S.C. §§ 1501—1505.
2
'The permission to file consolidated returns by affiliated corporations merely recognizes the business entity as distinguished from the legal corporate entity of the business enterprise.' S.Rep. No. 960, 70th Cong., 1st Sess., p. 14.
3
The Court's opinion seizes on the language of FPC v. Hope Natural Gas Co., 320 U.S. 591, 602, 64 S.Ct. 281, 288, 88 L.Ed. 333, for the proposition that judicial inquiry must be at an end when it is determined that a rate order 'cannot be said to be unjust and unreasonable'. But the problem before the Court in that case was an entirely different one. There it was argued that the Court was obligated to delve into the details of an initial ratemaking in order to determine whether certain rates were reasonable. The Court held that in an initial ratemaking the essential question was only whether the return actually allowed permitted the company to sustain itself in the market. The Court noted that it could not become involved in questions of 'fair value' because 'the value of the going enterprise depends on earnings under whatever rates may be anticipated.' Id., at 601, 64 S.Ct. at 287. Nothing in Hope Natural Gas suggests that courts are powerless to review a particular formula to determine whether it is based on rational criteria. A return which is 'just and reasonable' must reflect underlying congressional policies. Thus courts have not hesitated to review the underlying rationales of Commission decisions while giving due deference to the Commission's discretion. See, e.g., Tennessee Gas Transmission Co. v. FPC, 5 Cir., 293 F.2d 761; United Gas Imp. Co. v. FPC, 5 Cir., 290 F.2d 133; City of Detroit v. FPC, 97 U.S.App.D.C. 260, 230 F.2d 810.
4
Thus despite the Court's 'single consolidated tax liability' phraseology, I am certain that the Court does not mean to imply that the Commission may allocate by any criterion other than taxable incomes. The Court cannot mean to suggest that, for example, the Commission is empowered to allocate by gross revenues and thus consider special deductions belonging to nonjurisdictional activities as allocable for ratemaking purposes when the nonjurisdictional activity is fully capable of using them.
5
In determining what it considered to be the properly allocated percentage of 'tax saving' for ratemaking purposes the Commission utilized a five-year average (1957—1961) to eliminate the effects of short-term fluctuation. During that period, the total tax losses of
Union and Overseas were $3,893,980. The total taxable income of Gas Corporation, all of which was nonjurisdictional, was $9,024,170. Moreover, 56% of United's taxable income of $105,290,983 was nonjurisdictional. Thus even in the two years, 1960 and 1961, when the tax losses of Union and Overseas exceeded the taxable income of Gas Corporation, the group's nonjurisdictional taxable income was more than sufficient to offset all tax losses.
The Court notes the observation, made by the FPC in its brief, p. 26, that United reflected a 'tax saving' on its books. This statement is somewhat misleading since it is directed to the allocation made for earnings and profits tax purposes under 26 U.S.C. § 1552(a)(1) and that allocation bears no necessary relation to the actual allocation of liability for corporate purposes. Exhibit 14—1 reveals that, on the basis of allocated liability for corporate purposes, United had an average effective tax rate of 51.749% for the test years.
Moreover, the allocation of setoffs in the 1957—1961 period has no direct relevance to the issue in this case for the Commission was not engaged in analyzing rates for that period. The rates under scrutiny were those United proposed to charge in the future. If the Commission had found that United actually intended to allocate setoffs to its jurisdictional operation for corporate purposes while attempting to take a full 52% tax expense deduction for ratemaking purposes, the Commission might well have been justified in recognizing the setoffs for ratemaking purposes to the extent that United actually utilized them. On this record, it is clear that the Commission did not make any such finding.
6
26 U.S.C. § 1501 requires that all of the affiliated corporations consent to the filing of the consolidated return.
7
Proposed Treas.Reg. § 1.1502—33 recently promulgated by the Commissioner of Internal Revenue makes this a permissible means of allocation. 31 Fed.Reg. 16788—16789.
8
And this nonjurisdictional decision would seem outside the Commission's control even if it were influenced by the fact that United could benefit less from the lower price because the ratepayers would absorb the benefit. Union and Overseas have no duty to act for the benefit of United's ratepayers. And if United were to join in a group compact agreeing to this allocation of excess pipe with the proviso that the excess would be sold to United in the absence of other needs, the decision would seem perfectly justifiable. United's contingent benefit would be more than it would have outside the compact, and since United has no right to compel the nonjurisdictional corporations to deal with it, United would not have surrendered anything. See Case v. New York Central R. Co., 15 N.Y.2d 150, 256 N.Y.S.2d 607, 204 N.E.2d 643.
9
It should be noted as well that this example makes clear that it is entirely normal for United to be expected to pay for the acquisition of the asset, and thus some consideration should pass to Union and Overseas. This point is further developed in Part II of this opinion.
10
Title 18 CFR § 154.63(f) which deals with joint facilities requires allocation of expenses between jurisdictional and nonjurisdictional activities.
11
This formulation is, of course, very similar in form to that utilized by the Commission. The essential difference lies in the fact that the Commission substituted the concept of a 'regulated corporation' for that of a jurisdictional activity. The regulated-unregulated division made by the Commission has no basis in the Natural Gas Act.
12
The Commission has argued that the intended benefit can be disregarded in this case because the loss corporations are in that category for tax purposes solely because of depletion allowances and are actually profitable in economic terms. While this argument might be thought to have some force, it is not for us to decide that the depletion allowances Congress has authorized are not real costs of carrying on the business.
13
The Commission, if not the Court, was aware of this problem. In its petition for certiorari, p. 10, n. 8, the Commission recognized that '(t)here may indeed be problems in the application of * * * a formula which may result in allocating the entire tax saving resulting from losses on unregulated activities to the regulated members of the consolidated group.' The Commission has not attempted to justify its formula to this Court.
14
Since, in my view, no allocation is permissible in the circumstances of these cases, as a matter of law, a remand to the FPC is unnecessary. Under the Court's view, however, such a remand would appear to be the appropriate disposition. The Court's 'single consolidated tax liability' jurisdictional formulation is essentially the 'fused mass' theory proposed by the Commission staff and rejected by the Commission for jurisdictional reasons. Cities Service Gas Co., 30 F.P.C. 158, 160. The Commission should at least be required to re-examine the matter under the Court's jurisdictional premises. SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626; Connecticut Light & Power Co. v. FPC, 324 U.S. 515, 534, 65 S.Ct. 749, 758, 89 L.Ed. 1150. In any event, I cannot understand the Court's remand to the Court of Appeals, the Commission's power to allocate and its allocation formula having already been upheld by this Court.
| 78
|
386 U.S. 267
87 S.Ct. 1015
18 L.Ed.2d 37
Kenneth Reynolds WHEATONv.CALIFORNIA.
No. 46.
Supreme Court of the United States
March 13, 1967
Byron J. Walters, for petitioner.
Thomas C. Lynch, Atty. Gen. of California, William E. James, Asst. Atty. Gen., and C. Anthony Collins, Deputy Atty. Gen., for respondent.
On Petition for Writ of Certiorari to the District Court of Appeal of California, Second Appellate District.
PER CURIAM.
1
The petition for a writ of certiorari is granted. The judgment is vacated and the case remanded for further consideration in the light of Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824.
2
Mr. Justice STEWART would grant certiorari and reverse the judgment for the reasons stated in his opinion concurring in the result in Chapman v. State of California, 386 U.S., at 42, 87 S.Ct., at 837.
| 01
|
386 U.S. 287
87 S.Ct. 1065
18 L.Ed.2d 53
COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.Howe A. STIDGER et ux.
No. 173.
Argued Jan. 16, 1967.
Decided March 20, 1967.
Mitchell
Rogovin, Washington, D.C., for petitioner.
John A. Reed, New York City, as amicus curiae, in support of judgment, by invitation of the Court.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
In this case we are required to determine whether, under the 1954 Internal Revenue Code, expenditures for meals by a military officer stationed at a post to which is dependents were prohibited from accompanying him were deductible 'traveling expenses * * * (incurred) while away from home' within the meaning of § 162(a)(2)1 or whether instead they were nondeductible 'personal, living, or family expenses' within the meaning of § 262.2 At all pertinent times, respondent3 was a captain in the United States Marine Corps, attached to an aviation squadron. Immediately prior to October 1957, his permanent duty station was a Marine Corps base located at El Toro, California, and he lived nearby with his wife and children. On October 1, 1957, however, respondent and his squardron were transferred to Iwakuni, Japan, where they were to be based while serving a standard 15-month tour of duty in the Far East. Because dependents were prohibited from accompanying Marine Corps personnel to that duty station, respondent's wife and children remained in California.
2
Of the 14 1/2 months' actual duration of respondent's Far Eastern tour of duty, he was physically located at the Iwakuni base for 10 months. The remaining time was consumed by travel and short periods of duty at various other military bases; respondent was declared to be in a 'travel status' for a period of 49 days, and he received additional compensation for those days on a per diem basis. During the entire period of his service as a Marine Corps captain, both while he served at bases in the United States and while he served abroad away from his family, respondent also received tax-free monthly allowances for quarters and subsistence.
3
On his 1958 income tax return, respondent claimed a deduction of $650, representing the cost of his meals at a rate of $65 per month for the 10 months spent at the Iwakuni base. The Commissioner of Internal Revenue disallowed the deduction, ruling that the expenditure for meals was a 'personal, living' expense under § 262 and not a travel expense under § 162(a)(2). In the Commissioner's view respondent's 'home' during the period in question was his permanent duty station at Iwakuni rather than California where his family resided; therefore, he was not 'away from home' when he incurred the expenditure, The Tax Court upheld the Commissioner (40 T.C. 896), and respondent petitioned for review in the Court of Appeals for the Ninth Circuit. That court, in a per curiam decision with one judge dissenting, reversed the Tax Court and rejected the Commissioner's definition of 'home' for purposes of the deduction. 355 F.2d 294. The majority of the Court of Appeals ruled that the word 'home' as used in § 162(a)(2) of the Code must be given its usual meaning as the place of residence, not the place of business, of the taxpayer and his family. And since it was not reasonable for this taxpayer to move his family residence closer to his place of business, the 'ordinary and necessary' requirement applicable to all § 162 deductions was met and the cost of meals at Iwakuni was deductible. To resolve a direct conflict between this decision and a 1948 decision of the Court of Appeals for the Fourth Circuit in another case involving a military officer, Bercaw v. Commissioner of Internal Revenue, 165 F.2d 521, we granted certiorari. 385 U.S. 809, 87 S.Ct. 45, 17 L.Ed.2d 51.
4
This case then requires us to focus upon one of the three conditions which must be met before an item is deductible as a travel expense under § 162(a) (2). There is no question but that the expenditure here was 'ordinary and necessary' and that there was a 'direct connection between the expenditure and the carrying on of the trade or business of the taxpayer or of his employer.' Cf. Commissioner of Internal Revenue v. Flowers, 326 U.S. 465, 470, 66 S.Ct. 250, 252, 90 L.Ed. 203 (1946); Peurifoy v. Commissioner of Internal Revenue, 358 U.S. 59, 79 S.Ct. 104, 3 L.Ed.2d 30 (1958). The essence of the case is whether respondent was 'away from home' when he incurred the expenditure. And the answer to that question turns upon a determination of whether, under the circumstances related above, respondent's 'home' in 1958 was his permanent duty station at Iwakuni, Japan, or, instead, the residence of his family in California.
5
From the Revenue Act of 19214 down to § 162(a)(2) of the 1954 Internal Revenue Code Congress has provided a deduction from taxable income for travel expenses, including amounts expended for meals and lodging, while 'away from home.' Although Congress has not defined the crucial phrase 'away from home,' administrative rulings and regulations have been directed toward that problem. In 1921, a general rule was established to the effect that 'home' meant the taxpayer's principal place of business or employment whether or not it coincided with his place of residence.5 This interpretation prevented deductions of day-to-day commuting expenses which were not the unusual type of 'traveling expense' to which the statute was directed. Cf. Commissioner of Internal Revenue v. Flowers, 326 U.S. 465, 470, 66 S.Ct. 250, 252, 90 L.Ed. 203 (1946). Its logic has been applied to a host of other situations. Although certain refinements have been added,6 the essential position of the Commissioner has remained unchanged.
6
While the court below,7 together with the Courts of Appeals for the Fifth8 and Sixth9 Circuits, has not always agreed with this interpretation, the Tax Court10 and all of the other courts of appeals which have considered it have sustained the Commissioner.11 The Commissioner's interpretation of the word 'home' in connection with travel-expense deductions was also made clear to Congress when in 1936 it was held that Members of Congress could not deduct expenses which they incurred in Washington, D.C., even though each also maintained a residence in the district from which he had been elected. Lindsay v. Commissioner of Internal Revenue, 34 B.T.A. 840. Congress did not respond to this ruling by amending the statutory language generally to provide that 'home' was intended to be synonymous with 'residence,' but instead merely carved out an exception to cover the special travel-expense problems inherent in service as a national legislator.12
7
The Commissioner argues that the fact that Congress has reviewed and re-enacted the pertinent language with an awareness of the administrative interpretation constitutes a legislative endorsement of the Commissioner's position and is sufficient reason for reversing the judgment below. Helvering v. Winmill, 305 U.S. 79, 59 S.Ct. 45, 83 L.Ed. 52 (1938). But it is not necessary for us to decide here whether this congressional action (or inaction) constitutes approval and adoption of the Commissioner's interpretation of 'home' in all of its myriad applications since, in the context of the military taxpayer, the Commissioner's position has a firmer foundation. The Commissioner has long held that a military taxpayer's permanent duty station is also his home for purposes of determining deductibility of travel expenses. This position builds on the terminology employed by the military services to categorize various assignments and tours of duty, and also on the language and policy of the statutory provisions prescribing travel and transportation allowances for military personnel. For example, a Marine Corps directive, which was effective during respondent's Far Eastern tour of duty, defined the length of standard tours of duty in terms of the commencement and termination dates of 'permanent change(s) of station.'13 (Emphasis supplied.) Similarly, eligibility for certain statutory travel allowances turns upon whether an assignment constitutes a 'change of permanent station' (emphasis supplied) or whether the serviceman is 'away from his designated post of duty.' 37 U.S.C. § 404(a)(1). Thus, the Commissioner's position recognizes, as do the relevant statutes and the military services themselves, that the 'permanence' of location in civilian life cannot find a complete parallel in military life which necessarily contemplates relatively frequent changes of location.
8
The nondeductibility of expenses incurred by a military taxpayer while at a permanent duty station was previously challenged in Bercaw v. Commissioner of Internal Revenue, 165 F.2d 521 (C.A.4th Cir. 1948). There, the taxpayer, a reserve army officer who was called to active duty and assigned to Fort Meade in Maryland where there were no quarters for dependents, sought to deduct expenditures for his meals and janitorial service as costs of traveling 'away from home' in pursuit of his trade or business. The Court of Appeals affirmed the Tax Court's disallowance of the deduction, stating:
9
'The taxpayer was engaged in the business of an Army officer. His place of business was his particular Army post. If his Army duties required him to travel, he would have received a per diem travel allowance which would not have been taxable. * * * But whenever he made a permanent change of station that place of duty became his place of business and there was his 'home' within the meaning of Section 23(a)(1)(A). * * * Thus the expenditures for meals * * * while at this post were personal living expenses and non-deductible * * *.' 165 F.2d, at 524.
10
Since the Bercaw decision, the Commissioner has reiterated his position in Rev.Rul. 55—571, 1955—2 Cum.Bull. 44. And until the decision of the court below in the present case, neither the courts nor Congress had disturbed the Commissioner's interpretation of 'home' as it pertained to military personnel.
11
Additional support for the Commissioner's position is found in the fact that Congress traditionally has provided a special system of tax-free allowances for military personnel.14 These allowances now range from monthly payments for quarters15 and subsistence16 to per diem payments when the serviceman is declared in a 'travel status.'17 Provision may also be made for financial relief to assist dependents in relocating when they are prohibited from accompanying a serviceman on a change of permanent duty station.18 In the present case, respondent received the per diem payments while he was away from his permanent duty station. His quarters at Iwakuni were provided without cost to him, and at the same time he continued to receive a tax-free quarters allowance of approximately $102.50 per month;19 he also received a tax-free subsistence allowance of approximately $42.50 per month at all relevant times. Moreover, because his assignment to Iwakuni was a change of permanent station, his wife and children could have moved their residence to another part of the United States at the Government's expense; however, they elected not to exercise that option.
12
Underlying the system of special allowances is congressional recognition of the fact that military life poses unusual financial problems.20 The system is designed to provide complete and direct relief from such problems as opposed to the incomplete and indirect relief which an income tax deduction affords to a civilian business traveler.21 If the system of allowances is in fact inadequate, or if there are inconsistencies in the Commissioner's application of the travel-expense provision to military personnel,22 it is the province of Congress and the Commissioner, not the courts, to make the appropriate adjustments. Given the Commissioner's longstanding and judicially approved interpretation, the knowledge of that interpretation by Congress, and the fact that Congress has chosen to deal specially by tax-free allowances with the financial problems peculiar to military life, we must agree with the Commissioner that the military taxpayer is not 'away from home' when he is at his permanent duty station whether or not it is feasible or even permissible for his family to reside with him there. The judgment is, therefore, reversed.
13
Reversed.
14
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice FORTAS concur, dissenting.
15
The resolution of this case depends upon whether respondent was 'away from home' when he incurred the expenses.1 The term 'home' is not defined.
16
The Treasury's administrative rulings for many years have indeed treated the statutory word 'home' as meaning a taxpayer's principal place of business or employment. See Commissioner of Internal Revenue v. Flowers, 326 U.S. 465, 471—472, 66 S.Ct. 250, 253, 90 L.Ed. 203. To me it is clear that home means residence, with the qualification that a taxpayer should establish his residence as near to his place of employment as is reasonable. Ibid. Here the taxpayer was forbidden by military orders to take his family with him. He was, in other words, barred from taking his home with him whenever he went on military orders. The Commissioner points to the difficulty of having any rule other than the fixed one that 'home' means the taxpayer's principal place of business or employment. It is said that if the rule is not rigid, a great complex of facts would have to be considered: adequacy of housing at the new post, expense of moving, school facilities, health of the family, the need to care for elderly or ailing relatives, and the like. Only a fixed rule provides certainty, it is said; any other would threaten the desire for uniformity.
17
While equity is seldom an ingredient of the tax laws, while they are indeed inherently discriminatory in many ways, reflecting perquisites obtained by pressure groups,2 we need not increase their harshness by giving simple words unusual or strained meanings—unless of course Congress has plainly made an arbitrary choice.
18
If the taxpayer chooses to maintain his residence at a place for removed from his place of business, the travel expenses are not 'ordinary and necessary' since not dictated by business needs. Commissioner of Internal Revenue v. Flowers, supra. On the other hand, if the taxpayer cannot reasonably maintain his residence at his place of business, the travel expenses are 'ordinary and necessary' and hence deductible. Such an interpretation would give effect to the congressional policy of allowing a deduction for expenses dictated by the needs of the taxpayer's employment.
19
In this case there can be no question that the expenses were incurred in the pursuit of the taxpayer's employment and that respondent could not move his residence to Iwakuni. There can be no question that the expenses were motivated by '(t)he exigencies of business rather than the personal conveniences and necessities of the' respondent. Commissioner of Internal Revenue v. Flowers, supra, 326 U.S. at 474, 66 S.Ct. at 254. I cannot see how the result is changed simply because respondent is a member of the armed services. The fact that Congress has afforded members of the military special allowances is no indication that Congress intended that they not be allowed to deduct 'ordinary and necessary' expenses incurred while away from their residence. Respondent received the same pay and basic allowances while in the Far East as he did while residing with his family in the United States. There was no increase to help defray the increased expenses incurred by him while required to live away from his family.
1
'There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including—
'(2) traveling expenses (including the entire amount expended for meals and lodging) while away from home in the pursuit of a trade or business. * * *' § 162(a)(2) of the Internal Revenue Code of 1954, 26 U.S.C. § 162(a)(2) (1958 ed.)
2
'Except as otherwise expressly provided in this chapter, no deduction shall be allowed for personal, living, or family expenses.' § 262 of the Internal Revenue Code of 1954, 26 U.S.C. § 262.
3
Since a joint income tax return was filed by Captain and Mrs. Stidger, both are respondents here. In this opinion, however, the terms 'respondent' and 'taxpayer' refer only to Captain Stidger.
4
Revenue Act of 1921, c. 136, § 214(a), 42 Stat. 239.
5
O.D. 864, 4 Cum.Bull. 211 (1921); O.D. 1021, 5 Cum.Bull. 174 (1921).
6
See, e.g., I.T. 1490, I—2 Cum.Bull. 89 (1922); Rev.Rul. 60 189, 1960—1 Cum.Bull. 60. See also note 22, infra.
7
In addition to the instant case, see also Wright v. Hartsell, 305 F.2d 221 (C.A.9th Cir. 1962).
8
Steinhort v. Commissioner of Internal Revenue, 335 F.2d 496 (C.A.5th Cir. 1964); United States v. Le Blanc, 278 F.2d 571 (C.A.5th Cir. 1960).
9
Burns v. Gray, 287 F.2d 698 (C.A.6th Cir. 1961).
10
See, e.g., Friedman v. Commissioner of Internal Revenue, 37 T.C. 539 (1961); Carroll v. Commissioner of Internal Revenue, 20 T.C. 382 (1953). The facts of the Carroll case are closely analogous to the circumstances surrounding the claimed deduction here. The taxpayer there was an employee of the War Department who in 1947 was transferred to a 'permanent duty station' in Korea for a minimum of one year. His wife and child remained in the United States. A deduction for the cost of meals and lodging while in Korea was not allowed by the Tax Court which noted that the taxpayer's employer (1) designated Korea as a 'permanent duty station' and (2) granted per diem travel allowances only while the taxpayer was en route to and from Korea, not while he was based there. See also Todd v. Commissioner, 10 T.C. 655 (1948).
11
See, e.g., O'Toole v. Commissioner of Internal Revenue, 243 F.2d 302 (C.A.2d Cir. 1957); Coerver v. Commissioner of Internal Revenue, 297 F.2d 837 (C.A.3d Cir. 1962), affirming 36 T.C. 252 (1961); Bercaw v. Commissioner of Internal Revenue, 165 F.2d 521 (C.A.4th Cir. 1948); England v. United States, 345 F.2d 414 (C.A.7th Cir. 1965); Cockrell v. Commissioner of Internal Revenue, 321 F.2d 504 (C.A.8th Cir. 1963); and York v. Commissioner of Internal Revenue, 82 U.S. App.D.C. 63, 160 F.2d 385 (1947). The Courts of Appeals for the First and Tenth Circuits apparently have not taken a position on this question.
12
66 Stat. 467. The exception was carried over to the 1954 Code and now reads: 'For purposes of the preceding sentence, the place of residence of a Member of Congress * * * within the State, congressional district, Territory, or possession which he represents in Congress shall be considered his home, but amounts expended by such Members within each taxable year for living expenses shall not be deductible for income tax purposes in excess of $3,000.' 26 U.S.C. § 162(a).
13
Marine Corps Order 1300.8B, c. 1, issued July 1, 1958. Record, p. 24.
14
See generally Advisory Commission on Service Pay, Career Compensation for the Uniformed Forces, Appendix 13—18 (1948).
15
37 U.S.C. § 403.
16
37 U.S.C. § 402.
17
37 U.S.C. § 404. See also 37 U.S.C. §§ 405—412.
18
37 U.S.C. § 406(h).
19
37 U.S.C. § 403(d) provides: 'A member of a uniformed service who is assigned to quarters of the United States or a housing facility under the jurisdiction of a uniformed service may not be denied the basic allowance for quarters if, because of orders of competent authority, his dependents are prevented from occupying those quarters.'
20
In 1948, the Hook Commission, which had been appointed by the Secretary of Defense to study military compensation, issued its report and recommendations. Advisory Commission on Service Pay, Career Compensation for the Uniformed Forces (1948). That report formed a principal basis for the Career Compensation Act of 1949, c. 681, 63 Stat. 802. On the subjects of subsistence and quarters allowances, the Commission stated (Appendix, p. 17):
'The theory behind the subsistence allowance is that since the officer is required to arrange and provide his subsistence at all times and since he has no choice as to the place where he is to be stationed and therefore does not have the choice of the average citizen as to the place and manner of subsisting himself, it is necessary to provide him with an allowance at all times so that he may bear that expense wherever stationed.
'Because an officer is transferred frequently from place to place and is required to dig up his roots at the old station and transplant them to the new station, the Government has acknowledged for years its obligation to furnish quarters to the officer for occupancy by himself and his dependents.'
21
Congress has through the years evidenced a determination to maintain the various allowances at levels consistent with the necessary financial burdens borne by servicemen. See, e.g. id., at 35 and Appendix 13—18; H.R.Rep.No. 779, 81st Cong., 1st Sess., p. 19. In 1963, Congress enacted yet another measure designed to provide direct relief for dependents separated from servicemen on permanent duty outside this country or in Alaska. 37 U.S.C. § 427(b). Under specified conditions, this provision authorizes an allowance of $30 monthly. It was established because Congress recognized that separated families incur additional expenses. See H.R.Rep. No. 208, 88th Cong., 1st Sess., p. 29 U.S. Congressional and Administrative News, p. 912. That recognition is, of course, the same one that underlies the travel-expense deduction for civilian taxpayers.
22
The Commissioner has taken the position that a naval officer may deduct as a traveling expense the cost of his meals aboard ship while the ship is away from its home port. Rev.Rul. 55 571, 1955—2 Cum.Bull. 44. It is contended that respondent's situation at Iwakuni was directly analogous to that of a naval officer on a ship at sea for an extended period of time. The Commissioner justifies the discrepant treatment by arguing that a naval officer should be treated like the engineer of a train, a bus driver, or an airplane pilot for purposes of the travel-expense deduction; the principal place of business of such taxpayers is their home terminal and they are allowed the deduction when away from that terminal on business trips. We are not convinced that respondent's situation was in all relevant respects analogous to that of a naval officer at sea. In any event, during oral argument we were advised that the Commissioner is re-examining his position with respect to neval officers.
1
Section 162 of the Internal Revenue Code of 1954 provides in relevant part:
'(a) In general.—There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including—
'(2) traveling expenses (including the entire amount expended for meals and lodging) while away from home in the pursuit of a trade or business. * * *'
2
'* * * assume that a farmer has a herd of hogs. Each year he selects certain young to be bred. After each sow has one litter, she is turned out to be conditioned for slaughter. The profits on the sale of the pigs unbred are taxable as ordinary income. But the profits on the sale of the pigs bred once are taxable as capital gains. They have been held as business properties producing other pigs. The fact that all the pigs are equally destined to be sold and eaten is unimportant.' Eisenstein, The Idelogies of Taxation 174 (1961).
| 1112
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386 U.S. 300
87 S.Ct. 1056
18 L.Ed.2d 62
George McCRAY, Petitioner,v.STATE OF ILLINOIS.
No. 159.
Argued Jan. 10 and 11, 1967.
Decided March 20, 1967.
Rehearing Denied May 8, 1967.
See 386 U.S. 1042, 87 S.Ct. 1474.
R. Eugene Pincham, Chicago, Ill., for petitioner.
John J. O'Toole, Chicago, Ill., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The petitioner was arrested in Chicago, Illinois, on the morning of January 16, 1964, for possession of narcotics. The Chicago police officers who made the arrest found a package containing heroin on his person and he was indicted for its unlawful possession. Prior to trial he filed a motion to suppress the heroin as evidence against him, claiming that the police had acquired it in an unlawful search and seizure in violation of the Fourth and Fourteenth Amendments. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. After a hearing, the court denied the motion, and the petitioner was subsequently convicted upon the evidence of the heroin the arresting officers had found in his possession. The judgment of conviction was affirmed by the Supreme Court of Illinois,1 and we granted certiorari to consider the petitioner's claim that the hearing on his motion to suppress was constitutionally defective.2
2
The petitioner's arrest occurred near the intersection of 49th Street and Calumet Avenue at about seven in the morning. At the hearing on the motion to suppress, he testified that up until a half hour before he was arrested he had been at 'a friend's house' about a block away, that after leaving the friend's house he had 'walked with a lady from 48th to 48th and South Park,' and that, as he approached 49th Street and Calumet Avenue, '(t)he Officers stopped me going through the alley.' 'The officers,' he said, 'did not show me a search warrant for my person or an arrest warrant for my arrest.' He said the officers then searched him and found the narcotics in question.3 The petitioner did not identify the 'friend' or the 'lady,' and neither of them appeared as a witness.
3
The arresting officers then testified. Officer Jackson stated that he and two fellow officers had had a conversation with an informant on the morning of January 16 in their unmarked police car. The officer said that the informant had told them that the petitioner, with whom Jackson was acquainted, 'was selling narcotics and had narcotics on his person and that he could be found in the vicinity of 47th and Calumet at this particular time.' Jackson said that he and his fellow officers drove to that vicinity in the police car and that when they spotted the petitioner, the informant pointed him out and then departed on foot. Jackson stated that the officers observed the petitioner walking with a woman, then separating from her and meeting briefly with a man, then proceeding alone, and finally, after seeing the police car, 'hurriedly walk(ing) between two buildings.' 'At this point,' Jackson testified, 'my partner and myself got out of the car and informed him we had information he had narcotics on his person, placed him in the police vehicle at this point.' Jackson stated that the officers then searched the petitioner and found the heroin in a cigarette package.
4
Jackson testified that he had been acquainted with the informant for approximately a year, that during this period the informant had supplied him with information about narcotics activities 'fifteen, sixteen times at least,' that the information had proved to be accurate and had resulted in numerous arrests and convictions. On cross-examination, Jackson was even more specific as to the informant's previous reliability, giving the names of people who had been convicted of narcotics violations as the result of information the informant had supplied. When Jackson was asked for the informant's name and address, counsel for the State objected, and the objection was sustained by the court.4
5
Officer Arnold gave substantially the same account of the circumstances of the petitioner's arrest and search, stating that the informant had told the officers that the petitioner 'was selling narcotics and had narcotics on his person now in the vicinity of 47th and Calumet.' The informant, Arnold testified, 'said he had observed (the petitioner) selling narcotics to various people, meaning various addicts, in the area of 47th and Calumet.' Arnold testified that he had known the informant 'roughly two years,' that the informant had given him information concerning narcotics '20 or 25 times,' and that the information had resulted in convictions. Arnold too was asked on cross-examination for the informant's name and address, and objections to these questions were sustained by the court.
6
There can be no doubt, upon the basis of the circumstances related by Officers Jackson and Arnold, that there was probable cause to sustain the arrest and incidental search in this case. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. Unlike the situation in Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142, each of the officers in this case described with specificity 'what the informer actually said, and why the officer thought the information was credible.' 379 U.S., at 97, 85 S.Ct., at 229. The testimony of each of the officers informed the court of the 'underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant * * * was 'credible' or his information 'reliable." Aguilar v. State of Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723. See United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684. Upon the basis of those circumstances, along with the officers' personal observations of the petitioner, the court was fully justified in holding that at the time the officers made the arrest 'the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. Brinegar v. United States, 338 U.S. 160, 175—176, 69 S.Ct. 1302, 1310—1311, 93 L.Ed. 1879; Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134,' Beck v. State of Ohio, supra, 379 U.S. at 91, 85 S.Ct. at 225. It is the petitioner's claim, however, that even though the officers' sworn testimony fully supported a finding of probable cause for the arrest and search, the state court nonetheless violated the Constitution when it sustained objections to the petitioner's questions as to the identity of the informant. We cannot agree.
7
In permitting the officers to withhold the informant's identity, the court was following well-settled Illinois law. When the issue is not guilt or innocence, but, as here, the question of probable cause for an arrest or search, the Illinois Supreme Court has held that police officers need not invariably be required to disclose an informant's identity if the trial judge is convinced, by evidence submitted in open court and subject to cross-examination, that the officers did rely in good faith upon credible information supplied by a reliable informant.5 This Illinois evidentiary rule is consistent with the law of many other States.6 In California, the State Legislature in 1965 enacted a statute adopting just such a rule for cases like the one before us:
8
'(I)n any preliminary hearing, criminal trial, or other criminal proceeding, for violation of any provision of Division 10 (commencing with Section 11000) of the Health and Safety Code, evidence of information communicated to a peace officer by a confidential informant, who is not a material witness to the guilt or innocence of the accused of the offense charged, shall be admissible on the issue of reasonable cause to make an arrest or search without requiring that the name or identity of the informant be disclosed if the judge or magistrate is satisfied, based upon evidence produced in open court, out of the presence of the jury, that such information was received from a reliable informant and in his discretion does not require such disclosure.' California Evid.Code § 1042(c).7
9
The reasoning of the Supreme Court of New Jersey in judicially adopting the same basic evidentiary rule was instructively expressed by Chief Justice Weintraub in State v. Burnett, 42 N.J. 377, 201 A.2d 39:
10
'If a defendant may insist upon disclosure of the informant in order to test the truth of the officer's statement that there is an informant or as to what the informant related or as to the informant's reliability, we can be sure that every defendant will demand disclosure. He has nothing to lose and the prize may be the suppression of damaging evidence if the State cannot afford to reveal its source, as is so often the case. And since there is no way to test the good faith of a defendant who presses the demand, we must assume the routine demand would have to be routinely granted. The result would be that the State could use the informant's information only as a lead and could search only if it could gather adequate evidence of probable cause apart from the informant's data. Perhaps that approach would sharpen investigatorial techniques, but we doubt that there would be enough talent and time to cope with crime upon that basis. Rather we accept the premise that the informer is a vital part of society's defensive arsenal. The basic rule protecting his identity rests upon that belief.
11
'We must remember also that we are not dealing with the trial of the criminal charge itself. There the need for a truthful verdict outweighs society's need for the informer privilege. Here, however, the accused seeks to avoid the truth. The very purpose of a motion to suppress is to escape the inculpatory thrust of evidence in hand, not because its probative force is diluted in the least by the mode of seizure, but rather as a sanction to compel enforcement officers to respect the constitutional security of all of us under the Fourth Amendment. State v. Smith, 37 N.J. 481, 486, 181 A.2d 761 (1962). If the motion to suppress is denied, defendant will still be judged upon the untarnished truth.
12
'The Fourth Amendment is served if a judicial mind passes upon the existence of probable cause. Where the issue is submitted upon an application for a warrant, the magistrate is trusted to evaluate the credibility of the affiant in an ex parte proceeding. As we have said, the magistrate is concerned, not with whether the informant lied, but with whether the affiant is truthful in his recitation of what he was told. If the magistrate doubts the credibility of the affiant, he may require that the informant be identified or even produced. It seems to us that the same approach is equally sufficient where the search was without a warrant, that is to say, that it should rest entirely with the judge who hears the motion to suppress to decide whether he needs such disclosure as to the informant in order to decide whether the officer is a believable witness.' 42 N.J., at 385—388, 201 A.2d, at 43—45.
13
What Illinois and her sister States have done is no more than recognize a well-established testimonial privilege, long familiar to the law of evidence. Professor Wigmore, not known as an enthusiastic advocate of testimonial privileges generally,8 has described that privilege in these words:
14
'A genuine privilege, on * * * fundamental principle * * *, must be recognized for the identity of persons supplying the government with information concerning the commission of crimes. Communications of this kind ought to receive encouragement. They are discouraged if the informer's identity is disclosed. Whether an informer is motivated by good citizenship, promise of leniency or prospect of pecuniary reward, he will usually condition his cooperation on an assurance of anonymity—to protect himself and his family from harm, to preclude adverse social reactions and to avoid the risk of defamation or malicious prosecution actions against him. The government also has an interest in nondisclosure of the identity of its informers. Law enforcement officers often depend upon professional informers to furnish them with a flow of information about criminal activities. Revelation of the dual role played by such persons ends their usefulness to the government and discourages others from entering into a like relationship.
15
'That the government has this privilege is well established, and its soundness cannot be questioned.' (Footnotes omitted.) 8 Wigmore, Evidence § 2374 (McNaughton rev. 1961).
16
In the federal courts the rules of evidence in criminal trials are governed 'by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.'9 This Court, therefore, has the ultimate task of defining the scope to be accorded to the various common law evidentiary privileges in the trial of federal criminal cases. See Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125. This is a task which is quite different, of course, from the responsibility of constitutional adjudication. In the exercise of this supervisory jurisdiction the Court had occasion 10 years ago, in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, to give thorough consideration to one aspect of the informer's privilege, the privilege itself having long been recognized in the federal judicial system.10
17
The Roviaro case involved the informer's privilege, not at a preliminary hearing to determine probable cause for an arrest or search, but at the trial itself where the issue was the fundamental one of innocence or guilt. The petitioner there had been brought to trial upon a two-court federal indictment charging sale and transportation of narcotics. According to the prosecution's evidence, the informer had been an active participant in the crime. He 'had taken a material part in bringing about the possession of certain drugs by the accused, had been present with the accused at the occurrence of the alleged crime, and might be a material witness as to whether the accused knowingly transported the drugs as charged.' 353 U.S., at 55, 77 S.Ct., at 625. The trial court nonetheless denied a defense motion to compel the prosecution to disclose the informer's identity.
18
This Court held that where, in an actual trial of a federal criminal case,
19
'the disclosure of an informer's identity * * * is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action. * * *
20
'We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.' 353 U.S., at 60—61, 62, 77 S.Ct., at 628. (Footnotes omitted.)
21
The Court's opinion then carefully reviewed the particular circumstances of Roviaro's trial, pointing out that the informer's 'possible testimony was highly relevant * * *,' that he 'might have disclosed an entrapment * * *,' 'might have thrown doubt upon petitioner's identity or on the identity of the package * * *,' 'might have testified to petitioner's possible lack of knowledge of the contents of the package that he 'transported' * * *,' and that the 'informer was the sole participant, other than the accused, in the transaction charged.' 353 U.S., at 63—64, 77 S.Ct., at 629—630. The Court concluded 'that, under these circumstances, the trial court committed prejudicial error in permitting the Government to withhold the identity of its undercover employee in the face of repeated demands by the accused for his disclosure.' 353 U.S., at 65, 77 S.Ct, at 630.
22
What Roviaro thus makes clear is that this Court was unwilling to impose any absolute rule requiring disclosure of an informer's identity even in formulating evidentiary rules for federal criminal trials. Much less has the Court ever approached the formulation of a federal evidentiary rule of compulsory disclosure where the issue is the preliminary one of probable cause, and guilt or innocence is not at stake. Indeed, we have repeatedly made clear that federal officers need not disclose an informer's identity in applying for an arrest or search warrant. As was said in United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684, we have 'recognized that 'an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant,' so long as the magistrate is 'informed of some of the underlying circumstances' supporting the affiant's conclusions and his belief that any informant involved 'whose identity need not be disclosed * * * was 'credible' or his information 'reliable." Aguilar v. State of Texas, supra, 378 U.S., at 114, 84 S.Ct., at 1514.' (Emphasis added.) See also Jones v. United States, 362 U.S. 257, 271—272, 80 S.Ct. 725, 736—737, 4 L.Ed.2d 697; Rugendorf v. United States, 376 U.S. 528, 533, 84 S.Ct. 825, 828, 11 L.Ed.2d 887.11 And just this Term we have taken occasion to point out that a rule virtually prohibiting the use of informers would 'severely hamper the Government' in enforcement of the narcotics laws. Lewis v. United States, 385 U.S. 206, 210, 87 S.Ct. 424, 427, 17 L.Ed.2d 312.
23
In sum, the Court in the exercise of its power to formulate evidentiary rules for federal criminal cases has consistently declined to hold that an informer's identity need always be disclosed in a federal criminal trial, let alone in a preliminary hearing to determine probable cause for an arrest or search. Yet we are now asked to hold that the Constitution somehow compels Illinois to abolish the informer's privilege from its law of evidence, and to require disclosure of the informer's identity in every such preliminary hearing where it appears that the officers made the arrest or search in reliance upon facts supplied by an informer they had reason to trust. The argument is based upon the Due Process Clause of the Fourteenth Amendment, and upon the Sixth Amendment right of confrontation, applicable to the States through the Fourteenth Amendment. Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. We find no support for the petitioner's position in either of those constitutional provisions.
24
The arresting officers in this case testified, in open court, fully and in precise detail as to what the informer told them and as to why they had reason to believe his information was trustworthy. Each officer was under oath. Each was subjected to searching cross-examination. The judge was obviously satisfied that each was telling the truth, and for that reason he exercised the discretion conferred upon him by the established law of Illinois to respect the informer's privilege.
25
Nothing in the Due Process Clause of the Fourteenth Amendment requires a state court judge in every such hearing to assume the arresting officers are committing perjury. 'To take such a step would be quite beyond the pale of this Court's proper function in our federal system. It would be a wholly unjustifiable encroachment by this Court upon the constitutional power of States to promulgate their own rules of evidence * * * in their own state courts * * *.' Spencer v. State of Texas, 385 U.S. 554, 568—569, 87 S.Ct. 648, 656, 17 L.Ed.2d 606.
26
The petitioner does not explain precisely how he thinks his Sixth Amendment right to confrontation and cross-examination was violated by Illinois' recognition of the informer's privilege in this case. If the claim is that the State violated the Sixth Amendment by not producing the informer to testify against the petitioner, then we need no more than repeat the Court's answer to that claim a few weeks ago in Cooper v. State of California:
27
'Petitioner also presents the contention here that he was unconstitutionally deprived of the right to confront a witness against him, because the State did not produce the informant to testify against him. This contention we consider absolutely devoid of merit.' 386 U.S. 58, at 62, n. 2, 87 S.Ct. 788, at 791, 17 L.Ed.2d 730.
28
On the other hand, the claim may be that the petitioner was deprived of his Sixth Amendment right to cross-examine the arresting officers themselves, because their refusal to reveal the informer's identity was upheld. But it would follow from this argument that no witness on cross-examination could ever constitutionally assert a testimonial privilege, including the privilege against compulsory self-incrimination guaranteed by the Constitution itself. We have never given the Sixth Amendment such a construction, and we decline to do so now.
29
Affirmed.
30
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE, Mr. Justice BRENNAN and Mr. Justice FORTAS concur, dissenting.
31
We have here a Fourth Amendment question concerning the validity of an arrest. If the police see a crime being committed they can of course seize the culprit. If a person is fleeing the scene of a crime, the police can stop him. And there are the cases of 'hot pursuit' and other instances of probable cause when the police can make an arrest. But normally an arrest should be made only on a warrant issued by a magistrate on a showing of 'probable cause, supported by Oath or affirmation,' as required by the Fourth Amendment. At least since Mapp. v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, the States are as much bound by those provisions as is the Federal Government. But for the Fourth Amendment they could fashion the rule for arrests that the Court now approves. With all deference, the requirements of the Fourth Amendment now make that conclusion unconstitutional.
32
No warrant for the arrest of petitioner was obtained in this case. The police, instead of going to a magistrate and making a showing of 'probable cause' based on their informant's tip-off, acted on their own. They, rather than the magistrate, became the arbiters of 'probable cause.' The Court's approval of that process effectively rewrites the Fourth Amendment.
33
In Roviaro v. United States, 353 U.S. 53, 61, 77 S.Ct. 623, 628, 1 L.Ed.2d 639, we held that where a search without a warrant is made on the basis of communications of an informer and the Government claims the police had 'probable cause,' disclosure of the identity of the informant is normally required. In no other way can the defense show an absence of 'probable cause.' By reason of Mapp v. Ohio, supra, that rule is now applicable to the States.
34
In Beck v. State of Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142, we said:
35
'An arrest without a warrant bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification for the arrest or search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment.'
36
For that reason we have weighted arrests with warrants more heavily than arrests without warrants. See United States v. Ventresca, 380 U.S. 102, 106, 85 S.Ct. 741, 744, 13 L.Ed.2d 684. Only through the informer's testimony can anyone other than the arresting officers determine 'the persuasiveness of the facts relied on * * * to show probable cause.' Aguilar v. State of Texas, 378 U.S. 108, 113, 84 S.Ct. 1509, 1513, 12 L.Ed.2d 723.1 Without that disclosure neither we nor the lower courts can ever know whether there was 'probable cause' for the arrest. Under the present decision we leave the Fourth Amendment exclusively in the custody of the police. As stated by Mr. Justice Schaefer dissenting in People v. Durr, 28 Ill.2d 308, 318, 192 N.E.2d 379, 384, unless the identity of the informer is disclosed 'the policeman himself conclusively determines the validity of his own arrest.' That was the view of the Supreme Court of California in Priestly v. Superior Court, 50 Cal.2d 812, 818, 330 P.2d 39, 43:
37
'Only by requiring disclosure and giving the defendant an opportunity to present contrary or impeaching evidence as to the truth of the officer's testimony and the reasonableness of his reliance on the informer can the court make a fair determination of the issue. Such a requirement does not unreasonably discourage the free flow of information to law enforcement officers or otherwise impede law enforcement. Actually its effect is to compel independent investigations to verify information given by an informer or to uncover other facts that establish reasonable cause to make an arrest or search.'
38
There is no way to determine the reliability of Old Reliable, the informer, unless he produced, at the trial and cross-examined. Unless he is produced, the Fourth Amendment is entrusted to the tender mercies of the police.2 What we do today is to encourage arrests and searches without warrants. The whole momentum of criminal law administration should be in precisely the opposite direction, if the Fourth Amendment is to remain a vital force. Except in rare and emergency cases, it requires magistrates to make the findings of 'probable cause.' We should be mindful of its command that a judicial mind should be interposed between the police and the citizen. We should also be mindful that 'disclosure, rather than suppression, of relevant materials ordinarily promotes the proper administration of criminal justice.' Dennis v. United States, 384 U.S. 855, 870, 86 S.Ct. 1840, 1849, 16 L.Ed.2d 973.
1
33 Ill.2d 66, 210 N.E.2d 161.
2
384 U.S. 949, 86 S.Ct. 1575, 16 L.Ed.2d 546.
3
The weather was 'real cold,' and the petitioner testified he 'had on three coats.' In order to conduct the search, the arresting officers required the petitioner to remove some of his clothing, but even the petitioner's version of the circumstances of the search did not disclose any conduct remotely akin to that condemned by this Court in Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183.
4
'Q. What is the name of this informant that gave you this information?
'Mr. Engerman: Objection, Your Honor.
'The Court: State for the record the reasons for your objection.
'Mr. Engerman: Judge, based upon the testimony of the officer so far that they had used this informant for approximately a year, he has worked with this individual, in the interest of the public, I see no reason why the officer should be forced to disclose the name of the informant, to cause harm or jeopardy to an individual who has cooperated with the police. The City of Chicago have a tremendous problem with narcotics. If the police are not able to withhold the name of the informant they will not be able to get informants. They are not willing to risk their lives if their names become known.
'In the interest of the City and the law enforcement of this community, I feel the officer should not be forced to reveal the name of the informant. And I also cite People vs. Durr.
'The Court: I will sustain that.
'Mr. Adam: Q. Where does this informant live?
'Mr. Engerman: Objection, your Honor, same basis.
'The Court: Sustained.'
5
People v. Durr, 28 Ill.2d 308, 192 L.E.2d 379; People v. Nettles, 34 Ill.2d 52, 213 N.E.2d 536; People v. Connie, 34 Ill.2d 353, 215 N.E.2d 280; People v. Freeman, 34 Ill.2d 362, 215 N.E.2d 206; People v. Miller, 34 Ill.2d 527, 216 N.E.2d 793. Cf. People v. Pitts, 26 Ill.2d 395, 186 N.E.2d 357; People v. Parren, 24 Ill.2d 572, 182 N.E.2d 662.
6
State v. Cookson, 361 S.W.2d 683 (Mo.Sup.Ct.); Simmons v. State, 198 Tenn. 587, 281 S.W.2d 487; People v. Coffey, 12 N.Y.2d 443, 240 N.Y.S.2d 721, 191 N.E.2d 263. But see People v. Malinsky, 15 N.Y.2d 86, 262 N.Y.S.2d 65, 209 N.E.2d 694. Cf. Stelloh v. Liban, 21 Wis.2d 119, 124 N.W.2d 101; Baker v. State, 150 So.2d 729 (Fla.App.); State v. Boles, 246 N.C. 83, 97 S.E.2d 476.
7
In the present case California has filed a helpful amicus brief, advising us that the validity of this provision is now before the Supreme Court of California. Martin v. Superior Court, (LA 29078). The statute was enacted to modify that court's decision in Priestly v. Superior Court, 50 Cal.2d 812, 330 P.2d 39. See also Ford v. City of Jackson, 153 Miss. 616, 121 So. 278.
8
See 8 Wigmore, Evidence § 2192 (McNaughton rev. 1961).
9
Rule 26, Fed.Rules Crim.Proc.
10
See Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151; In re Quarles & Butler, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080; Vogel v. Gruaz, 110 U.S. 311, 4 S.Ct. 12, 28 L.Ed. 158.
11
Some federal courts have applied the same rule of nondisclosure in both warrant and nonwarrant cases. Smith v. United States, 123 U.S.App.D.C. 202, 358 F.2d 833; Jones v. United States, 326 F.2d 124 (C.A.9th Cir.), cert. denied, 377 U.S. 956, 84 S.Ct. 1635, 12 L.Ed.2d 499; United States v. One 1957 Ford Ranchero Pickup, 265 F.2d 21 (C.A.10th Cir.). Other federal courts, however, have distinguished between these two classes of cases and have required the identification of informants in nonwarrant cases. United States v. Robinson, 325 F.2d 391 (C.A.2d Cir.); Cochran v. United States, 291 F.2d 633 (C.A.8th Cir.). Cf. Wilson v. United States, 59 F.2d 390 (C.A.3d Cir.). See Comment, Informer's Word as the Basis for Probable Cause in the Federal Courts, 53 Calif.L.Rev. 840 (1965).
In drawing this distinction some of the federal courts have relied upon a dictum in Roviaro v. United States, 353 U.S. 53, 61, 77 S.Ct. 623, 628, 1 L.Ed.2d 639:
'Most of the federal cases involving this limitation on the scope of the informer's privilege have arisen where the legality of a search without a warrant is in issue and the communications of an informer are claimed to establish probable cause. In these cases the Government has been required to disclose the identity of the informant unless there was sufficient evidence apart from his confidential communication.'
Since there was no probable cause issue in Roviaro, the quoted statement was clearly not necessary for decision. Indeed, an absolute rule of disclosure for probable cause determinations would conflict with the case-by-case approach upon which the Roviaro decision was based. Moreover, the precedent upon which this dictum was grounded furnishes only dubious support. Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151, the only decision of this Court which was cited, affirmed the trial judge's refusal to order arresting officers to reveal the source of their information.
1
Quoting from Giordenello v. United States, 357 U.S. 486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503.
2
It is not unknown for the arresting officer to misrepresent his connection with the informer, his knowledge of the informer's reliability, or the information allegedly obtained from the informer. See, e.g., United States v. Pearce, 7 Cir., 275 F.2d 318, 322.
| 01
|
386 U.S. 345
87 S.Ct. 1158
18 L.Ed.2d 94
Charles Joseph O'BRIEN et al.v.UNITED STATES.
No. 823.
Supreme Court of the United States
March 20, 1967
Philip A. Gillis, for petitioner O'Brien.
Ivan Barris, for petitioner Parisi.
Solicitor General Marshall, Assistant Attorney General Vinson, Beatrice Rosenberg and Mervyn Hamburg, for the United States.
On Petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit.
PER CURIAM.
1
The petition for a writ of certiorari is granted, judgment vacated and the case is remanded to the United States District Court for the Eastern District of Michigan for a new trial should the government seek to prosecute petitioners anew. Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26.
2
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, dissenting.
3
Petitioners in this case, Charles O'Brien and Thomas Parisi, were convicted on several counts of removing merchandise from a bonded area under the supervision of the United States Customs Service, in violation of 18 U.S.C. § 549. The items involved were, on the first count, applicable only to petitioner O'Brien, 14 cases of marble slabs; on the second count, a marble statue of St. Theresa; on the third count, 21 cases of valves and valve handles.
4
The issues raised in the petition for certiorari involve questions as to the sufficiency of the indictment and alleged errors at trial, none of which could well be deemed worthy of review by this Court. However, the Solicitor General in his response commendably notified the Court that pursuant to a general review of the use of 'electronic eavesdropping or wiretapping,' he discovered that a microphone had been installed in a commercial establishment owned by an acquaintance of petitioner O'Brien. A conversation in which O'Brien participated, occurring after the indictment and concerning his forthcoming trial, was overheard. The Solicitor General characterizes the episode as follows: 'That conversation, although overheard by the monitoring agents and summarized in their logs, was not mentioned in any F.B.I. report nor were its contents communicated to attorneys for the Department of Justice, including those who prosecuted this case.'
5
The Solicitor General further revealed a later conversation which he characterizes as follows: 'It also appears from the logs of this surveillance * * * that petitioner O'Brien was on the premises and was overheard in January 1964, when he placed a telephone call and requested one of his attorneys to file an application relating to the territorial conditions of his release on bail. This conversation, like the one in May 1963, was noted in the logs of the monitoring agents but was not communicated in any manner outside the F.B.I.' (Footnote omitted.)
6
On the basis of these representations the Solicitor General indicated that he would 'not oppose' a remand of the case for an adversary hearing as to the effect of this activity on the validity of petitioners' convictions. The Court, however, without a word of explanation, vacates the convictions and remands the entire case for a new trial. I must respectfully but emphatically dissent.
7
As I stated in dissenting from a similar disposition in Black v. United States, 385 U.S. 26, 31, 87 S.Ct. 190, 17 L.Ed.2d 26: 'I agree, of course, that petitioner is entitled to a full-scale development of the facts, but I can see no valid reason why this unimpeached conviction should be vacated at this stage. * * * [A] state. * * * [A] new trial is not an appropriate vehicle for sorting out the eavesdropping issue because until it is determined that such occurrence vitiated the original conviction no basis for a retrial exists. The Court's action puts the cart before the horse.'
8
In Black the Court's disposition might conceivably be accounted for by the fact that the Government admitted that the contents of the recorded conversation had been incorporated in memoranda used by the prosecuting attorneys.* In the present case, however, I can think of no justification for going beyond the position of the Solicitor General and forcing the Government to go through the effort and expense of an entirely new trial on the basis of this peripheral, totally insignificant, and uncommunicated eavesdropping. As in Black, I consider the Court's action, quixotically precipitate.
9
I would deny this petition for certiorari, but, given the Solicitor General's acknowledgment that electronic eavesdropping or wiretapping did in fact take place, I would remand the case to the District Court for a full hearing as to the circumstances and effects of these activities.
*
In Schipani v. United States, 385 U.S. 372, 87 S.Ct. 533, 17 L.Ed.2d 428, the Court properly vacated the conviction because the Solicitor General conceded that evidence used at trial was tainted.
| 01
|
386 U.S. 317
87 S.Ct. 1072
18 L.Ed.2d 75
Sandra Lee NEELY, etc., Petitioner,v.MARTIN K. EBY CONSTRUCTION CO., Inc.
No. 12.
Argued Jan. 16 and 17, 1967.
Decided March 20, 1967.
Rehearing Denied April 24, 1967.
See 386 U.S. 1027, 87 S.Ct. 1366.
Kenneth N. Kripke, Denver Colo., for petitioner.
John C. Mott, Denver, Colo., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
Petitioner brought this diversity action in the United States District Court for the District of Colorado alleging that respondent's negligent construction, maintenance, and supervision of a scaffold platform used in the construction of a missile silo near Elizabeth, Colorado, had proximately caused her father's fatal plunge from the platform during the course of his employment as Night Silo Captain for Sverdrup & Parcel, an engineering firm engaged in the construction of a missile launcher system in the silo. At the close of the petitioner's evidence and again at the close of all the evidence, respondent moved for a directed verdict. The trial judge denied both motions and submitted the case to a jury, which returned a verdict for petitioner for $25,000.
2
Respondent then moved for judgment notwithstanding the jury's verdict or, in the alternative, for a new trial, in accordance with Rule 50(b), Federal Rules of Civil Procedure.1 The trial court denied the motions and entered judgment for petitioner on the jury's verdict. Respondent appealed, claiming that its motion for judgment n.o.v. should have been granted. Petitioner, as appellee, urged only that the jury's verdict should be upheld.
3
The Court of Appeals held that the evidence at trial was insufficient to establish either negligence by respondent or proximate cause and reversed the judgment of the District Court 'with instructions to dismiss the action.' Without filing a petition for rehearing in the Court of Appeals, petitioner then sought a writ of certiorari, presenting the question whether the Court of Appeals could, consistent with the 1963 amendments to Rule 50 of the Federal Rules2 and with the Seventh Amendment's guarantee of a right to jury trial, direct the trial court to dismiss the action. Our order allowing certiorari directed the parties' attention to whether Rule 50(d) and our decisions in Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849; Globe Liquor Co. v. San Roman, 332 U.S. 571, 68 S.Ct. 246, 92 L.Ed. 177; and Weade v. Dichmann, Wright & Pugh, Inc., 337 U.S. 801, 69 S.Ct. 1326, 93 L.Ed. 1704, permit this disposition by a court of appeals despite Rule 50(c)(2), which gives a party whose jury verdict is set aside by a trial court 10 days in which to invoke the trial court's discretion to order a new trial.3 We affirm.
4
Under Rule 50(b), if a party moves for a directed verdict at the close of the evidence and if the trial judge elects to send the case to the jury, the judge is 'deemed' to have reserved decision on the motion. If the jury returns a contrary verdict, the party may within 10 days move to have judgment entered in accordance with his motion for directed verdict. This procedure is consistent with decisions of this Court rendered prior to the adoption of the Federal Rules in 1938. Compare Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 55 S.Ct. 890, 79 L.Ed. 1636, with Slocum v. New York Life Ins. Co., 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879, and Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 57 S.Ct. 809, 81 L.Ed. 1177. And it is settled that Rule 50(b) does not violate the Seventh Amendment's guarantee of a jury trial. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147.
5
The question here is whether the Court of Appeals, after reversing the denial of a defendant's Rule 50(b) motion for judgment notwithstanding the verdict, may itself order dismissal or direct entry of judgment for defendant. As far as the Seventh Amendment's right to jury trial is concerned, there is no greater restriction on the province of the jury when an appellate court enters judgment n.o.v. than when a trial court does; consequently, there is no constitutional bar to an appellate court granting judgment n.o.v. See Baltimore & Carolina Line, Inc. v. Redman, supra. Likewise, the statutory grant of appellate jurisdiction to the courts of appeals is certainly broad enough to include the power to direct entry of judgment n.o.v. on appeal. Section 2106 of Title 28 provides that,
6
'The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.'
7
See Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335.
8
This brings us to Federal Rules 50(c) and 50(d), which were added to Rule 50 in 1963 to clarify the proper practice under this Rule. Though Rule 50(d) is more pertinent to the facts of this case, it is useful to examine these interrelated provisions together. Rule 50(c) governs the case where a trial court has granted a motion for judgment n.o.v. Rule 50(c)(1) explains that, if the verdict loser has joined a motion for new trial with his motion for judgment n.o.v., the trial judge should rule conditionally on the new trial motion when he grants judgment n.o.v. If he conditionally grants a new trial, and if the court of appeals reverses his grant of judgment n.o.v., Rule 50(c) (1) provides that 'the new trial shall proceed unless the appellate court has otherwise ordered.' On the other hand, if the trial judge conditionally denies the motion for new trial, and if his grant of judgment n.o.v. is reversed on appeal, 'subsequent proceedings shall be in accordance with the order of the appellate court.' As the Advisory Committee's Note to Rule 50(c) makes clear, Rule 50(c)(1) contemplates that the appellate court will review on appeal both the grant of judgment n.o.v. and, if necesary, the trial court's conditional disposition of the motion for new trial.4 This review necessarily includes the power to grant or to deny a new trial in appropriate cases.
9
Rule 50(d) is applicable to cases such as this one where the trial court has denied a motion for judgment n.o.v. Rule 50(d) expressly preserves to the party who prevailed in the district court the right to urge that the court of appeals grant a new trial should the jury's verdict be set aside on appeal. Rule 50(d) also emphasizes that 'nothing in this rule precludes' the court of appeals 'from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted.' Quite properly, this Rule recognizes that the appellate court may prefer that the trial judge pass first upon the appellee's new trial suggestion. Nevertheless, consideration of the new trial question 'in the first instance' is lodged with the court of appeals. And Rule 50(d) is permissive in the nature of its direction to the court of appeals: as in Rule 50(c)(1), there is nothing in Rule 50(d) indicating that the court of appeals may not direct entry of judgment n.o.v. in appropriate cases.
10
Rule 50(c)(2), n. 2, supra, is on its face inapplicable to the situation presented here. That Rule regulates the verdict winner's opportunity to move for a new trial if the trial court has granted a Rule 50(b) motion for judgment n.o.v. In this case, the trial court denied judgment n.o.v. and respondent appealed. Jurisdiction over the case then passed to the Court of Appeals, and petitioner's right to seek a new trial in the trial court after her jury verdict was set aside became dependent upon the disposition by the Court of Appeals under Rule 50(d).
11
As the Advisory Committee explained, these 1963 amendments were not intended to 'alter the effects of a jury verdict or the scope of appellate review,' as articulated in the prior decisions of this Court. 31 F.R.D. 645. In Cone v. West Virginia Pulp & Paper Co., supra, the defendant moved for a directed verdict, but the trial judge sent the case to the jury. After a jury verdict for the plaintiff, the trial court denied defendant's motion for a new trial. On appeal, the Court of Appeals reversed and ordered the entry of judgment n.o.v. This Court reversed the Court of Appeals on the ground that the defendant had not moved for judgment n.o.v. in the trial court, but only for a new trial, and consequently the Court of Appeals was precluded from directing any disposition other than a new trial. See also Globe Liquor Co. v. San Roman, supra. In Johnson v. New York, N.H. & H.R. Co., 344 U.S. 48, 73 S.Ct. 125, 97 L.Ed. 77, this Court held that a verdict loser's motion to 'set aside' the jury's verdict did not comply with Rule 50(b)'s requirement of a timely motion for judgment n.o.v. and therefore that the Court of Appeals could not direct entry of judgment n.o.v. And in Weade v. Dichmann, Wright & Pugh, Inc., supra, where a proper motion for judgment n.o.v. was made and denied in the trial court, we modified a Court of Appeals decision directing entry of judgment n.o.v. because there were 'suggestions in the complaint and evidence' of an alternative theory of liability which had not been passed upon by the jury and therefore which might justify the grant of a new trial. 337 U.S., at 808—809, 69 S.Ct., at 1330.
12
The opinions in the above cases make it clear that an appellate court may not order judgment n.o.v. where the verdict loser has failed strictly to comply with the procedural requirements of Rule 5(b), or where the record reveals a new trial issue which has not been resolved. Part of the Court's concern has been to protect the rights of the party whose jury verdict has been set aside on appeal and who may have valid grounds for a new trial, some or all of which should be passed upon by the district court, rather than the court of appeals, because of the trial judge's firsthand knowledge of witnesses, testimony, and issues because of his 'feel' for the overall case. These are very valid concerns to which the court of appeals should be constantly alert. Where a defendant moves for n.o.v. in the trial court, the plaintiff may present, in connection with the motion or with a separate motion after n.o.v. is granted, his grounds for a new trial or voluntary nonsuit. Clearly, where he retains his verdict in the trial court and the defendant appeals, plaintiff should have the opportunity which 50(d) affords him to press those same or different grounds in the court of appeals. And obviously judgment for defendant-appellant should not be ordered where the plaintiff-appellee urges grounds for a nonsuit or new trial which should more appropriately be addressed to the trial court.
13
But these considerations do not justify an ironclad rule that the court of appeals should never order dismissal or judgment for defendant when the plaintiff's verdict has been set aside on appeal. Such a rule would not serve the purpose of Rule 50 to speed litigation and to avoid unnecessary retrials. Nor do any of our cases mandate such a rule. Indeed, in Pence v. United States, 316 U.S. 332, 62 S.Ct. 1080, 86 L.Ed. 1510, we affirmed a Court of Appeals decision reversing the trial court's failure to grant judgment n.o.v. And in New York, N.H. & H.R. Co. v. Henagan, 364 U.S. 441, 81 S.Ct. 198, 5 L.Ed.2d 183, this Court itself directed entry of judgment for a verdict loser whose proper request for judgment n.o.v. had been wrongly denied by the District Court and by the Court of Appeals.5 In view of these cases, the language of Rule 50(d), and the statutory grant of broad appellate jurisdiction, we think a more discriminating approach is preferable to the inflexible rule for which the petitioner contends.
14
There are, on the one hand, situations where the defendant's grounds for setting aside the jury's verdict raise questions of subject matter jurisdiction or dispositive issues of law which, if resolved in defendant's favor, must necessarily terminate the litigation. The court of appeals may hold in an employer's suit against a union, for example, that the case is within the exclusive jurisdiction of the National Labor Relations Board, or in a libel suit, that the defendant was absolutely privileged to publish the disputed statement. In such situations, and others like them, there can be no reason whatsoever to prevent the court of appeals from ordering dismissal of the action or the entry of judgment for the defendant.
15
On the other hand, where the court of appeals sets aside the jury's verdict because the evidence was insufficient to send the case to the jury, it is not so clear that the litigation should be terminated. Although many of the plaintiff-appellee's possible grounds for a new trial, such as inadequacy of the verdict, will not survive a decision that the case should not have gone to the jury in the first place, there remain important considerations which may entitle him to a new trial. The erroneous exclusion of evidence which would have strengthened his case is an important possibility. Another is that the trial court itself caused the insufficiency in plaintiff-appellee's case by erroneously placing too high a burden of proof on him at trial. But issues like these are issues of law with which the courts of appeals regularly and characteristically must deal. The district court in all likelihood has already ruled on these questions in the course of the trial and, in any event, has no special advantage or competence in dealing with them. They are precisely the kind of issues that the losing defendant below may bring to the court of appeals without ever moving for a new trial in the district court. Cf. Globe Liquor Co. v. San Roman, 332 U.S. 571, 574, 68 S.Ct. 246, 247, 92 L.Ed. 177. Likewise, if the plaintiff's verdict is set aside by the trial court on defendant's motion for judgment n.o.v., plaintiff may bring these very grounds directly to the court of appeals without moving for a new trial in the district court.6 Final action on these issues normally rests with the court of appeals.
16
A plaintiff whose jury verdict is set aside by the trial court on defendant's motion for judgment n.o.v. may ask the trial judge to grant a voluntary nonsuit to give plaintiff another chance to fill a gap in his proof. Cone v. West Virginia Pulp & Paper Co., 330 U.S., at 217, 67 S.Ct., at 755. The plaintiff-appellee should have this same opportunity when his verdict is set aside on appeal. Undoubtedly, in many cases this question will call for an exercise of the trial court's discretion. However, there is no substantial reason why the appellee should not present the matter to the court of appeals, which can if necessary remand the case to permit initial consideration by the district court.
17
In these cases where the challenge of the defendant-appellant is to the sufficiency of the evidence, the record in the court of appeals will very likely be a full one. Thus, the appellee will not be required to designate and print additional parts of the record to substantiate his grounds for a nonsuit (or a new trial), and it should not be an undue burden in the course of arguing for his verdict to indicate in his brief why he is entitled to a new trial should his judgment be set aside. Moreover, the appellee can choose for his own convenience when to make his case for a new trial: he may bring his grounds for new trial to the trial judge's attention when defendant first makes an n.o.v. motion, he may argue this question in his brief to the court of appeals, or he may in suitable situations seek rehearing from the court of appeals after his judgment has been reversed.
18
In our view, therefore, Rule 50(d) makes express and adequate provision for the opportunity—which the plaintiff-appellee had without this rule—to present his grounds for a new trial in the event his verdict is set aside by the court of appeals. If he does so in his brief—or in a petition for rehearing if the court of appeals has directed entry of judgment for appellant—the court of appeals may make final disposition of the issues presented, except those which in its informed discretion should be reserved for the trial court. If appellee presents no new trial issues in his brief or in a petition for rehearing, the court of appeals may, in any event, order a new trial on its own motion or refer the question to the district court, based on factors encountered in its own review of the case. Compare Weade v. Dichmann, Wright & Pugh, Inc., supra.
19
In the case before us, petitioner won a verdict in the District Court which survived respondent's motion for judgment n.o.v. In the Court of Appeals the issue was the sufficiency of the evidence and that court set aside the verdict. Petitioner, as appellee, suggested no grounds for a new trial in the event her judgment was reversed, nor did she petition for rehearing in the Court of Appeals, even though that court had directed a dismissal of her case. Neither was it suggested that the record was insufficient to present any new trial issues or that any other reason required a remand to the District Court. Indeed, in her brief in the Court of Appeals, petitioner stated, 'This law suit was fairly tried and the jury was properly instructed.' It was, of course, incumbent on the Court of Appeals to consider the new trial question in the light of its own experience with the case. But we will not assume that the court ignored its duty in this respect, although it would have been better had its opinion expressly dealt with the new trial question.
20
In a short passage at the end of her brief to this Court, petitioner suggested that she has a valid ground for a new trial in the District Court's exclusion of opinion testimony by her witnesses concerning whether respondent's scaffold platform was adequate for the job it was intended to perform. This matter was not raised in the Court of Appeals or in the petition for a writ of certiorari, even though the relevant portions of the transcript were made a part of the record on appeal. Under these circumstances, we see no cause for deviating from our normal policy of not considering issues which have not been presented to the Court of Appeals and which are not properly presented for review here. Supreme Court Rule 40(1)(d)(2). See J. I. Case Co. v. Borak, 377 U.S. 426, 428—429, 84 S.Ct. 1555, 1557—1558, 12 L.Ed.2d 423; State of California v. Taylor, 353 U.S. 553, 556—557, n. 2, 77 S.Ct. 1037, 1039—1040, 1 L.Ed.2d 1034.
21
Petitioner's case in this Court is pitched on the total lack of power in the Court of Appeals to direct entry of judgment for respondent. We have rejected that argument and therefore affirm. It is so ordered.
22
Affirmed.
23
Mr. Justice DOUGLAS and Mr. Justice FORTAS, while agreeing with the Court's construction of Rule 50, would reverse the judgment because in their view the evidence of negligence and proximate case was sufficient to go to the jury.
24
Mr. Justice BLACK, dissenting.
25
I dissent from the Court's decision in this case for three reasons: First, I think the evidence in this case was clearly sufficient to go to the jury on the issues of both negligence and proximate cause. Second, I think that under our prior decisions and Rule 50, a court of appeals, in reversing a trial court's refusal to enter judgment n.o.v. on the ground of insufficiency of the evidence, is entirely powerless to order the trial court to dismiss the case, thus depriving the verdict winner of any opportunity to present a motion for new trial to the trial judge who is throughly familiar with the case. Third, even if a court of appeals has that power, I find it manifestly unfair to affirm the Court of Appeals, judgment have without giving this petitioner a chance to present her grounds for a new trial to the Court of Appeals as the Court today for the first time holds she must.
I.
26
Petitioner and respondent, both in their briefs on the merits and in their oral argument, have vigorously and extensively addressed themselves to the question of whether the lower court was correct in holding that petitioner's evidence of negligence and proximate cause was insufficient to go to the jury. The Court, however, conveniently avoids facing this issue—which if resolved in petitioner's favor, would completely dispose of this case1—by a footnote statement that this issue was not presented in the petition for certiorari nor encompassed by our order granting certiorari. Besides the fact that this seems to me to be an overly meticulous reading of the petition for certiorari and our order granting it,2 I see no reason for the Court's refusal to deal with an issue which is undoubtedly present in this case even though not specifically emphasized in the petition for certiorari. Although usually this Court will not consider questions not presented in the petition for certiorari, our Rule 40(1)(d)(2) has long provided that 'the court, at its option, may notice a plain error not presented,' and the Court has frequently disposed of cases by deciding crucial issues which the parties themselves failed to present. See, e.g., United Brotherhood of Carpenters, etc. v. United States, 330 U.S. 395, 67 S.Ct. 775, 91 L.Ed. 973; Silber v. United States, 370 U.S. 717, 82 S.Ct. 1287, 8 L.Ed.2d 798; Boynton v. Commonwealth of Virginia, 364 U.S. 454, 81 S.Ct. 182, 5 L.Ed.2d 206. If, as I believe, the Court of Appeals was wrong in concluding that the evidence was insufficient to go to the jury, then its reversal of the jury's verdict was a violation of the Seventh Amendment, and certainly this is the kind of plain constitutional error that this Court can and should correct.
27
That the evidence was more than ample to prove both negligence and proximate cause is, I think, inescapably clear from even a cursory review of the undisputed facts in this record. Petitioner's father was killed while working on the construction of a missle-launching silo in Colorado. Neely worked for an engineering firm and his job was to work on certain concrete blocks suspended 130 feet from the bottom of the silo. Respondent, a carpentry firm responsible for the construction, maintenance, and supervision of all scaffolding in the silo, constructed a wooden platform between two of the concrete blocks in order to allow workers such as Neely to go from one block to the other. The platform, however, did not cover the entire distance between the blocks nor was it level with them. Instead, it was two feet horizontally away from either block and was raised two feet vertically above the blocks. Also, a railing was constructed on one side of the platform between it and one of the blocks. No railing was placed on the other side of the platform. When Neely along with three fellow workers arrived at the silo, they were told by respondent's foreman that the platform was ready. The only way they could get from the platform to the blocks was by jumping the gap between the platform and blocks. However, because of the railing on one side of the platform, the workers could not jump directly across the two-foot gap to the block on that side, but had either to jump three feet diagonally to the block or to climb over the railing. One worker successfully leaped to the block, fastened his safey belt, and then looked back and saw Neely, who was to follow, falling head first through the hole between the platform and the block. Neely, failing to make the jump, fell to his death 130 feet below.
28
Petitioner's case consisted of the testimony of the day foreman, one of the carpenters who constructed the platform, and the worker who was closest to Neely when he fell. Quite understandably, in view of the strong evidence, petitioner did not call to testify the two other workers who witnessed Neely's fall or the other carpenters who worked on the platform. She did, however introduce several revealing photographs of the platform, blocks, and intervening gap taken immediately after the accident. On respondent's objection, the trial judge excluded several other photographs which showed nets which, after the accident, were placed under the platform for the safety of the investigators. There was testimony that neither the railing nor platform broke and that there was no grease on the platform. But when petitioner's counsel asked the day foreman whether he considered the platform safe and adequate, he replied in the negative, though this testimony, on respondent's objection, was then ordered stricken as opinion evidence on an ultimate issue. The trial court refused to allow the same question to be asked of the other witnesses. At one time, the carpenter did testify that a railing was put on only one side of the platform because lunch hour was nearing and the platform had to be completed before then.
29
On this evidence, which the trial judge characterized as presenting a 'close case,' the Court of Appeals held a verdict should have been directed for respondent. Although the court was willing to assume that there might be some negligence in the size of the platform or the placing of the railing along one side, and though it was willing to concede 'that the platform might possibly have had something to do with his (Neely's) fall,' 344 F.2d 482, 486, the court purported to find no evidence, not even circumstantial evidence, that the construction of the platform was the proximate cause of the fall. I think this holding cries for reversal. If constructing a platform 130 feet in the air, at which height workmen use safety belts, with a three-foot diagonal gap over which workers must leap and with a railing which makes a direct jump impossible, does not itself show negligence and proximate cause, then it is difficult to concelve of any evidence that would. Besides the size of the platform and the presence of the railing, the photographs shown to the jury, and reproduced in this record, reveal other possible defects in its construction: a vertical kickboard extending beyond the railing into the gap through which Neely jumped; rough boards on the floor of the platform. The fact that Neely was coming headfirst by the time he passed the block two feet below might have made it reasonable for the jury to have concluded that he tripped on these impediments rather than merely stepped in the opening. In short, I believe it was a clear violation of the Seventh Amendment to deprive petitioner of a jury verdict rendered on this evidence.
II.
30
Since the adoption of Rule 50, our cases have consistently and emphatically preserved the right of a litigant whose judgment whether it be a judgment entered on the verdict or judgment n.o.v. is set aside to invoke the discretion of the trial court in ruling on a motion for new trial. The first of these cases was Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147, where the trial judge, unlike here, granted the defendant's motion for judgment n.o.v., but in doing so failed to rule on his alternative motion for a new trial. The Court of Appeals reversed the trial court's grant of judgment n.o.v. to the defendant and remanded the case with directions to enter judgment on the verdict for the plaintiff, overruling defendant's contention that the trial judge should be given an opportunity to pass on his alternative motion for new trial. Holding that the trial judge should have initially ruled on this alternative motion, this Court remanded the case to the trial judge for the purpose of passing on that motion. In explaining this result the Court said:
31
'The rule contemplates that either party to the action is entitled to the trial judge's decision on both motions, if both are presented. * * * If, however, as in the present instance, the trial court erred in granting the motion the party against whom the verdict went is entitled to have his motion for a new trial considered in respect of asserted substantial trial errors and matters appealing the the discretion of the judge.' Id., at 251—252, 61 S.Ct. at 194.
32
The question here, however, unlike that in Duncan, is whether the Court of Appeals, after holding that the District Court erred in failing to direct a verdict against the plaintiff, can then order the District Court to dismiss the case and thereby deprive the verdict winner of any opportunity to ask the trial judge for a new trial in order to cure a defect in proof in the first trial. This question was first considered in Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849. In Cone, as in this case, the question was whether the Court of Appeals could direct the dismissal of a case in which the trial court had erroneously failed to grant a directed verdict. In that case no motion for judgment n.o.v. had been made by the verdict loser. We held that the Court of Appeals could not under those circumstances order the dismissal of the case. Noting that '(d)etermination of whether a new trial should be granted or a judgment entered under Rule 50(b) calls for the judgment in the first instance of the judge who saw and heard the witnesses and has the feel of the case which no appellate printed transcript can impart,' id., at 216, 67 S.Ct. at 755 (emphasis added), we held that 'a litigant should not have his right to a new trial foreclosed without having had the benefit of the trial court's judgment on the question,' id., at 217, 67 S.Ct. at 755 (emphasis added). We clearly indicated that the result would have been the same had the verdict loser, as had the respondent here, unsuccessfully moved for a judgment n.o.v. in the trial court, for in that case, likewise, the verdict winner would have had to wait until the Court of Appeals deprived him of his verdict before presenting his grounds for a new trial. We specifically rejected a suggestion—today accepted by the Court—that the verdict winner should have to claim his right to a new trial in the Court of Appeals or lose it. Id., at 218, 67 S.Ct. at 756.
33
Following Cone, we emphasized and re-emphasized in Globe Liquor Co. v. San Roman, 332 U.S. 571, 68 S.Ct. 246, 92 L.Ed. 177, that the reason why courts of appeals are without power to dismiss cases in situations like this is that the power to determine this issue is vested exclusively in the judge who tried the case. And again, in Weade v. Dichmann, Wright & Pugh, Inc., 337 U.S. 801, 69 S.Ct. 1326, 93 L.Ed. 1704, even where—as in this case—a timely motion for judgment n.o.v. had been made, the Court affirmed the Court of Appeals' holding that the verdict could not stand, but, relying on Cone and Globe Liquor, modified its judgment to provide the trial judge with an opportunity to decide whether the verdict winner was entitled to a new trial. Id., at 809 and n. 8, 69 S.Ct. at 1330. See also Johnson v. New York, N.H. & H.R. Co., 344 U.S. 48, 73 S.Ct. 125, 97 L.Ed. 77; Fountain v. Filson, 336 U.S. 681, 69 S.Ct. 754, 93 L.Ed. 971.
34
This issue of whether a new trial is justified after a verdict is set aside either by a trial or an appellate court is a new issue which it was not necessary to decide in the original trial. It is a factual issue and that the trial court is the more appropriate tribunal to determine it has been almost universally accepted by both federal and state courts throughout the years. There are many reasons for this. Appellate tribunals are not equipped to try factual issues as trial courts are. A trial judge who has heard the evidence in the original case has a vast store of information and knowledge about it that the appellate court cannot get from a cold, printed record. Thus, as we said in Cone, the trial judge can base the broad discretion granted him in determining factual issues of a new trial on his own knowledge of the evidence and the issues 'in a perspective peculiarly available to him alone.' 330 U.S., at 216, 67 S.Ct. at 755. The special suitability of having a trial judge decide the issue of a new trial in cases like this is emphasized by a long and unbroken line of decisions of this Court holding that the exercise of discretion by trial judges in granting or refusing new trials on factual grounds is practically unreviewable by appellate courts. See, e.g., Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 481—482, 53 S.Ct. 252, 254, 255, 77 L.Ed. 439; cited with approval in Montgomery Ward & Co. v. Duncan, supra, 311 U.S. at 253, 61 S.Ct. at 195, n. 12.
35
Today's decision is out of harmony with all the cases referred to above. The Court's opinion attempts to justify its grant of power to appellate courts by pointing to instances in which those courts, and even assertedly this Court, have utilized this power in the past. The Court cites Pence v. United States, 316 U.S. 332, 62 S.Ct. 1080, 86 L.Ed. 1510, and New York, N.H. & H.R. Co. v. Henagan, 364 U.S. 441, 81 S.Ct. 198, 5. L.Ed.2d 183, a such instances. In Pence, the Court of Appeals reversed the trial court's refusal to grant judgment n.o.v. and remanded for further consistent proceedings. We affirmed withou the slightest indication that we felt the Court of Appeals' mandate deprived the verdict winner of the chance to move for a new trial on remand. Neither did the Court indicate that this would be the effect of its mandate in Henagan where it remanded the case to the District Court to enter judgment n.o.v. for the verdict loser. And the same can be said of almost every other post-Cone court of appeals decision cited by the Court in note 5. Cf. Johnson v. New York, N.H. & H.R. Co., supra, 344 U.S. at 54, 73 S.Ct. at 128, n. 3.
36
The Court also attempts to justify its new grant of power to appellate judges by a strained process of reasoning. First, the Court suggests that the power of an appellate court to dismiss a case after setting aside a litigant's verdict can be derived from 28 U.S.C. § 2106. This idea, of course, was first suggested by a dissent in Johnson v. New York, N.H. & H.R. Co., supra, at 65, 73 S.Ct. at 134, which argued that because of § 2106 'The discretion now rests with the Court of Appeals to grant a new trial or to direct a verdict according to law on the record already made.' This contention, however, was not deemed worthy of argument or comment either by the Court in its opinion or by others who dissented in the Johnson case. Section 2106 merely deals with the general power of appellate courts and indicates no congressional purpose to overcome the long-standing and established practice, recognized by this Court's decisions and Rule 50, that the discretion to decide whether a new trial should be granted, when the appellate court finds a gap in the supporting evidence, rests with the trial judge and not with the appellate court. It begs the question to argue that it is appropriate for an appellate court in such circumstances to order a dismissal merely because § 2106 provides that a court of appeals may direct the entry of an 'appropriate judgment.'
37
The Court further purports to derive this power from the provisions of Rule 50(c) and (d). The Court notes that under Rule 50(c)(1), where the trial judge grants a judgment n.o.v. and either grants or denies the conditional motion for new trial, an appellate court in reversing the judgment n.o.v. has 'the power to grant or to deny a new trial in appropriate cases.' But, as the Court fails to recognize, the crucial prerequisite to the exercise of this appellate power is a ruling in the first instance, as required in Cone, by the trial court on the motion for new trial. Here that crucial prerequisite is missing.
38
The Court then proceeds to find Rule 50(c)(2) inapplicable on its face to a situation where the trial court denies a judgment n.o.v. but an appellate court orders that one be entered. In doing so, the Court ignores the purpose of Rule 50(c)(2). The Rules Committee explained this provision as follows:
39
'Subdivision (c)(2) is a reminder that the verdict-winner is entitled, even after entry of judgment n.o.v. against him, to move for a new trial in the usual course.' 31 F.R.D. 646.
40
The rule does not remotely indicate that the verdict winner loses this right to move for a new trial if the trial court's entry of judgment n.o.v. against him is on direction by the appellate court rather than on its own initiative. Sections (c) and (d) were added to Rule 50 in 1963, after all the cases discussed above had been decided. As the Notes of the Rules Committee indicate, these amendments were made to implement those decisions which had emphasized the importance of having trial judges initially determine the factual issue of whether a new trial is justified in cases where judgment n.o.v. has been entered against the verdict winner, either by the trial or appellate court. The Committee at no place hinted that the amendments were meant to change the practice established by those cases, and, to the contrary, it specifically stated that, 'The amendments do not alter the effects of a jury verdict or the scope of appellate review.' 31 F.R.D. 645. (Emphasis added.)
41
Certainly this is true of Rule 50(d). This section provides that the verdict winner, who prevailed on the motion for judgment n.o.v., 'may, as appellee, assert grounds entitling him to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for judgment notwithstanding the verdict' (emphasis added) and that 'nothing in this rule precludes it (the appellate court) from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted.' Because the Court finds that the rule 'is permissive in the nature of its direction to the court of appeals,' it concludes 'there is nothing in Rule 50(d) indicating that the court of appeals may not direct entry of judgment n.o.v. in appropriate cases.' The Court entirely overlooks the fact that the rule is likewise permissive in the nature of its direction to the verdict winner as appellee: it provides that the verdict winner 'may' ask the Court of Appeals for a new trial; it does not provide that he must do so in order to protect his right to a new trial. Contrary to the Court, I think the express failure of Rule 50(d) to give the appellate court power to order a case dismissed indicates a clear intention to deny it any such power. The practice now permitted by Rule 50(d) was first embodied in the Notes of the Rules Committee to the proposed, but unadopted, amendments of 1946. The Notes suggested that a verdict winner could, as appellee, assign grounds for a new trial in the event the appellate court set aside his verdict. In Cone, however, we expressly rejected the contention that the verdict winner's failure, as appellee, to assign grounds for a new trial in the appellate court gave that court the power to deny him a new trial. Cone v. West Virginia Pulp & Paper Co., supra, 330 U.S. at 218 and n. 6, 67 S.Ct. at 756. This rejection was extensively discussed by the commentators, most of whom concluded that under Cone the verdict winner should be allowed a chance to present his motion for new trial at the trial court level.3 Finally, when Rule 50(d) was adopted, there was not the slightest indication that it was intended to adopt the practice that we found objectionable in Cone. In fact, it was carefully worded to avoid giving the appellate court any power to deny a new trial. I do not believe this omission unintentional, for the language of Rule 50(c)(1), adopted at the same time, does purport to give the appellate court this power when it reverses a judgment n.o.v. and the trial court has already denied the verdict loser's conditional motion for new trial. It does so clearly by providing that 'subsequent proceedings shall be in accordance with the order of the appellate court.'
42
In short, today's decision flies in the teeth of Rule 50(c)(2), and our cases which that rule was intended to implement, by giving the Court of Appeals the power, clearly withheld by Rule 50(d), to substitute its judgment for the trial court's and then decide that justice requires no new trial.
III.
43
Even were I to agree with the Court that courts of appeals have the power to deny a verdict winner a new trial, I could not agree to the affirmance of such a denial here. Here, so far as appears from the record, the Court of Appeals never even gave a thought to the question of whether petitioner was entitled to a new trial, but simply required that the district judge dismiss the lawsuit as though it were an automatic necessity. And petitioner, in seeking to support her verdict without directing the Court of Appeals' attention to any grounds for a new trial, had every right to rely on our past cases which plainly told her that she was entitled to make her motion for a new trial to the trial judge who is far more able to determine whether justice requires a new trial. While in one breath the Court says that it 'will not assume that the court (of appeals) ignored its duty' to 'consider the new trial question,' in another breath it notes that '(t)his matter was not raised in the Court of Appeals.' And because petitioner failed to present grounds for a new trial to the Court of Appeals, the Court, while recognizing that she here presents grounds for a new trial which might require decision by the trial court, refuses to consider these grounds.
44
In refusing to consider petitioner's grounds for a new trial, the Court completely ignores what was done in Weade v. Dichmann, Wright & Pugh, Inc., supra. There we ordered the case remanded to the trial court to pass on petitioner's motion for new trial because petitioner suggested to this Court that there was an alternative theory presented by the complaint and evidence. However, nowhere in the record in that case was it indicated that petitioner had argued this alternative theory in the Court of Appeals, and nothing in our opinion indicates any such requirement. The Court correctly summarizes Weade as holding that 'an appellate court may not order judgment n.o.v. where * * * the record reveals a new trial issue which has not been resolved.' (Emphasis added.) I think the record here reveals such an issue and that, at the very least, petitioner should now be given a chance to argue that issue to the Court of Appeals.
45
The record here clearly reveals that there were gaps in petitioner's case which she might, if given a chance, fill upon a new trial. First, only one of the three eye-witnesses to Neely's fall and only one of the carpenters who worked on the platform were called as witnesses. Second, the trial court excluded testimony by all the witnesses as to their opinions of the adequacy of the platform. Third, several of petitioner's very relevant photographs of the platform were excluded by the trial judge. From such circumstances as these the trial judge might properly have concluded that petitioner was entitled to a new trial to fill the gaps in her case. It is particularly pertinent in this respect that the Court of Appeals itself said:
46
'It may, of course, be conceded that the platform might possibly have had something to do with his fall, but there is nothing in the record to show what it was.' 344 F.2d, at 486.
47
It surely cannot be dismissed as idle conjecture to think that petitioner could, if given a chance, introduce sufficient evidence to prove to the most exacting fact finder that the three-foot diagonal gap in the platform 130 feet above the ground had something to do with this fall and this death.
1
'(b) Motion for Judgment Notwithstanding the Verdict. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict * * *. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. * * *'
2
Principally, the amendments added new subdivisions (c) and (d) to Rule 50:
'(c) Same: Conditional Rulings on Grant of Motion.
'(1) If the motion for judgment notwithstanding the verdict, provided for in subdivision (b) of this rule, is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment. In case the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered. In case the motion for a new trial has been conditionally denied, the appellee on appeal may assert error in that denial; and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court.
'(2) The party whose verdict has been set aside on motion for judgment notwithstanding the verdict may serve a motion for a new trial pursuant to Rule 59 not later than 10 days after entry of the judgment notwithstanding the verdict.
'(d) Same: Denial of Motion. If the motion for judgment notwithstanding the verdict is denied, the party who prevailed on that motion may, as appellee, assert grounds entitling him to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for judgment notwithstanding the verdict. If the appellate court reverses the judgment, nothing in this rule precludes it from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted.'
3
Petitioner presented the following question in her petition for a writ of certiorari:
'Do Rules 50(d) and 38(a) Federal Rules of Civil Procedure and the Seventh Amendment to the Constitution of the United States preclude the Court of Appeals from instructing the trial court to dismiss an action wherein the trial court denied the defendant's motions for new trial and for judgment notwithstanding the verdict and entered judgment for the plaintiff?'
In view of the question presented by petitioner and our order granting certiorari, we do not consider whether the Court of Appeals correctly held that petitioner's evidence of negligence and proximate cause was insufficient to go to the jury.
4
The Advisory Committee explains: 'If the motion for new trial has been conditionally granted * * * (t)he party against whom the judgment n.o.v. was entered below may, as appellant, besides seeking to overthrow that judgment, also attack the conditional grant of the new trial. And the appellate court, if it reverses the judgment n.o.v., may in an appropriate case also reverse the conditional grant of the new trial and direct that judgment be entered on the verdict.' 31 F.R.D. 645. See Lind v. Schenley Indus., Inc., 278 F.2d 79 (C.A.3d Cir. 1960), cert. denied, 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60; Moist Cold Refrigerator Co. v. Lou Johnson Co., 249 F.2d 246 (C.A.9th Cir. 1957), cert. denied, 356 U.S. 968, 78 S.Ct. 1008, 2 L.Ed.2d 1074; Bailey v. Slentz, 189 F.2d 406 (C.A.10th Cir. 1951). See also Tribble v. Bruin, 279 F.2d 424 (C.A.4th Cir. 1960).
5
Since the decision in Cone v. West Virginia Pulp & Paper Co., six courts of appeals have reversed the denial of a Rule 50(b) motion and directed entry of judgment n.o.v. in addition to the Tenth Circuit's decision in this case. See, e.g., Capital Transit Co. v. Gamble, 82 U.S. App.D.C. 57, 160 F.2d 283; Stopper v. Manhattan Life Ins. Co., 241 F.2d 465 (C.A.3d Cir.), cert. denied, 355 U.S. 815, 78 S.Ct. 17, 2 L.Ed.2d 32; Richmond Television Corp. v. United States, 354 F.2d 410 (C.A.4th Cir.); Mills v. Mitsubishi Shipping Co., 358 F.2d 609 (C.A.5th Cir.); Lappin v. Baltimore & Ohio R. Co., 337 F.2d 399 (C.A.7th Cir.); Massachusetts Mut. Life Ins. Co. v. Pistolesi, 160 F.2d 668 (C.A.9th Cir.). The other circuits had rendered similar decisions prior to Cone. See Ferro Concrete Constr. Co. v. United States, 112 F.2d 488 (C.A.1st Cir.), cert. denied, 311 U.S. 697, 61 S.Ct. 136, 85 L.Ed. 452; Brennan v. Baltimore & Ohio R. Co., 115 F.2d 555 (C.A.2d Cir.), cert. denied, 312 U.S. 685, 61 S.Ct. 614, 85 L.Ed. 1123; Connecticut Mut. Life Ins. Co. v. Lanahan, 113 F.2d 935, modifying 112 F.2d 375 (C.A.6th Cir.); Federal Sav. & Loan Ins. Corp. v. Kearney Trust Co., 151 F.2d 720 (C.A.8th Cir.).
6
The Advisory Committee's Note to Rule 50(c)(2) explains: 'Even if the verdictwinner makes no motion for a new trial, he is entitled upon his appeal from the judgment n.o.v. not only to urge that that judgment should be reversed and judgment entered upon the verdict, but that errors were committed during the trial which at the least entitle him to a new trial.' 31 F.R.D. 646.
1
Heretofore, when faced with this issue, the Court has met it head-on and thus avoided unnecessarily discussing the effect of Rule 50. See, e.g., Conway v. O'Brien, 312 U.S. 492, 61 S.Ct. 634, 85 L.Ed. 969; Berry v. United States, 312 U.S. 450, 61 S.Ct. 637, 85 L.Ed. 945; Halliday v. United States, 315 U.S. 94, 62 S.Ct. 438, 86 L.Ed. 711.
2
Petitioner's 'Question Presented,' as set out in n. 3 of the Court's opinion, is whether—in addition to Rule 50(d)—Rule 38(a) and the Seventh Amendment 'preclude the Court of Appeals from instructing the trial court to dismiss an action wherein the trial court denied the defendant's motions for new trial and for judgment notwithstanding the verdict and entered judgment for the plaintiff?' Certainly, if there were sufficient evidence to go to the jury, then Rule 38(a) and the Seventh Amendment preclude the Court of Appeals from directing a dismissal of petitioner's case after she had obtained a jury verdict. To make it further clear that petitioner was challenging the Court of Appeals' ruling on the sufficiency of the evidence, the petition for certiorari also states that 'petitiioner does not concede for one moment that the trial court and the jury were wrong and that the appellate court was right in interpreting the evidence as to proximate cause and negligence.' And our order granting certiorari, while directing counsel's attention to the question of the Court of Appeals' power to dismiss the case under Rule 50(c) and (d), stated that this question was '(i)n addition to all the questions presented by the petition.' 382 U.S. 914, 86 S.Ct. 286, 15 L.Ed.2d 230.
3
See, e.g., Comment, 51 Nw.U.L.Rev. 397, 400—402 (1956); Note, 58 Col.L.Rev. 517, 524—525 (1958).
| 78
|
386 U.S. 372
87 S.Ct. 1100
18 L.Ed.2d 159
BALTIMORE & OHIO R. CO. et al., Appellants,v.UNITED STATES et al. The DELAWARE & HUDSON R. CORP., Appellant, v. UNITED STATES et al. ERIE-LACKAWANNA R. CO., Appellant, v. UNITED STATES et al. CITY OF SCRANTON, Appellant, v. UNITED STATES et al. Milton J. SHAPP, Appellant, v. UNITED STATES et al. CHICAGO & EASTERN ILLINOIS R. CO., Appellant, v. UNITED STATES et al.
Nos. 642, 680, 691, 813—815.
Argued Jan. 9 and 10, 1967.
Decided March 27, 1967.
[Syllabus from pages 372-373 intentionally omitted]
Howard J. Trienens, Chicago, Ill., Lloyd N. Cutler, Washington, D.C., Edward W. Bourne, Harry G. Silleck, Jr., New York City, Leon Keyserling and Gordon P. MacDougall, Washington, D.C., for appellants.
Sol. Gen. Thurgood Marshall for the U.S.
Robert W. Ginnane, Hugh B. Cox, Washington, D.C., Joseph Auerbach, Boston, Mass., Walter J. Myskowski, Washington, D.C., Samuel Kanell, Hartford, Conn., David Berman, Boston, Mass., and John H. Chafee, Providence, R.I., for appellees.
Mr. Justice CLARK delivered the opinion of the Court.
1
These six appeals involve the validity of an order of the Interstate Commerce Commission permitting the merger of the Pennsylvania Railroad Company and the
2
[Argument of counsel intentionally omitted] New York Central Railroad Company (Penn-Central) pursuant to § 5(2) of the Interstate Commerce Act, as amended, 41 Stat. 481, 49 U.S.C. § 5(2). In its original order of April 6, 1966, the Commission found that the merger might divert a substantial amount of traffic from the Erie-Lackawanna Railroad Company (E—L), the Delaware and Hudson Railroad Company (D & H) and the Boston and Maine Corporation (B & M), three smaller competing carriers designated as the 'protected railroads' by the Commission. These protected railroads had filed under § 5(2)(d) of the Act applications for inclusion in both this merger and in Norfolk & W. Ry. Co. and New York, C. & St. L.R. Co.—Merger, 324 I.C.C. 1. In the latter case inclusion of E—L and D & H has been recommended and, together with B & M, is pending before the Commission. The applications of the protected roads in the Penn-Central proceeding have been held in abeyance pending decision in the Norfolk proceeding.
3
On the merits of the Penn-Central merger, the Commission found that the service the protected railroads 'render their shippers is essential and the public interest dictates that (such service) be preserved.' The Commission concluded 'that immediate consummation of the proposed merger would be consistent with the public interest, if conditions are imposed to obviate impairment or serious weakening' of the three lines. Without such conditions or the inclusion of the protected roads in a major system, the Commission further found, it would be doubtful if the 'three carriers could withstand the competition of the applicants merged, and, unless they are protected during the period necessary to determine their future, we would not authorize consummation at this time, even though approving the merger.' 327 I.C.C. 475, 532. It, therefore, applied, sua sponte, certain conditions to the immediate consummation of the merger which were 'designed to prevent any loss of revenue over the three railroads (the protected railroads) as a direct result of immediate consummation of this merger.' Its 'approval of the merger for undelayed consummation' was made 'subject * * * to the conditions specifically described in appendix G,' ibid., which was attached as an appendix to the April 6, 1966, order, and which we likewise attach as an Appendix here. The Commission, apparently because of the necessity for the conditions and the urgency of the merger, required compliance with Appendix G even though it had neither the benefit of a report from a Hearing Examiner thereon, nor the advantage of a hearing before the Commission itself. These conditions detailed the protection which must be given the protected railroads and made them a prerequisite to the consummation of the merger.
4
The Commission, therefore, not only found that protection of the three railroads was necessary, but fixed the terms thereof and required compliance prior to permitting the merger. There was nothing tentative about Appendix G. The conditions were divided into two general categories and provided that: (1) On traffic for which the protected railroads are 'competitive factors'1 the merged company shall not, pending final determination of the inclusion proceedings, provide any new or changed routing practice, freight rates, or service which would divert or tend to divert traffic from routes in which the protected railroads, or any of them, participates or participated at the time of the merger. And (2) the protected railroads would be indemnified by the merged company against revenue losses by reason of the merger. Appendix G to the order detailed the manner in which such indemnity would be calculated and provided for the accelerated processing of complaints as to new or changed routes, practices, rates, or services. Section 7 of Appendix G provided that if the merged company did not accede to all of the conditions, the merger would be deferred for two years or 'such time as the Commission may determine to be necessary to protect the interests of D & H, B & M and E—L.' And § 8 provided that the conditions 'shall be construed, administered and enforced with the view to protecting the E—L, D & H and B & M and the shipping public which depends upon them for transportation, against the effects of the merger for the period and purposes set forth above.'
5
Thereafter, and without a hearing, but apparently on the objection of most of the parties, the Commission on September 16, 1966, modified its April 6 order and reopened the hearing. 328 I.C.C. 304. The objectors, among other things, pointed to the fact that the conditions of Appendix G were made without any notice or hearing and would create irreconcilable conflicts between the protected carriers and others adversely affected by the merger. In reopening the hearing the Commission limited it to the conditions imposed in Appendix G, the prevention of possible manipulation of such conditions and the enlargement of the indemnity provision to include capital loss. In the reopening order of September 16, 1966, the Commission left intact its order of April 6, 1966, as to the undelayed consummation of the merger, continued in effect the ban on new or changed routes, practices, and rates as to traffic in which any of the protected railroads participated, but lifted the indemnification condition until further order, at which time any such provision found necessary could be made retroactive to the date of the merger. None of the previous findings, as to the necessity for the immediate imposition of the conditions included in the original order, were amended or withdrawn. The traffic conditions alone were left in effect.
6
This suit was filed on September 7, 1966, and arose upon the complaint of E—L and other railroads seeking an interlocutory injunction to restrain the consummation of the merger. A three-judge court was convened, 28 U.S.C. § 2284, and thereafter it declined, by a divided vote, to grant the interlocutory injunction. Erie-Lackawanna Railroad Co. v. United States, D.C., 259 F.Supp. 964. The appellants sought a stay from Mr. Justice Harlan who referred the application to the Court and it was granted on October 18, 1966. At the same time we expedited the case for consideration. 385 U.S. 914, 87 S.Ct. 224, 17 L.Ed.2d 18. The sole question before us is whether, in light of the findings as to the necessity for interim protection for the so-called protected railroads, the Commission erred in permitting the consummation of the merger prior to and without awaiting determination of the inclusion proceedings. We believe that the Commission erred in approving the immediate consummation of the merger without determining the ultimate fate of the protected roads. We, therefore, reverse the judgment and remand the case to the District Court with instructions to remand the matter to the Commission for further proceedings in accordance with this opinion.
I.
7
Questions not here decided.
8
At the outset we make it clear that we do not pass on the validity of the merger, the special conditions of Appendix G, the modified order of the Commission, or the peripheral points posed by the various parties. We hold only that under the uncontradicted findings of the Commission it was necessary for it to conclude the inclusion proceedings, as to the protected railroads, prior to permitting consummation of the merger.
II.
9
The merger, its background, its participants and relative position.
10
The Penn-Central merger has been under study and discussion by the Commission for some 10 years. After the initial study was completed in 1959, Central withdrew from the plan and began negotiations for a merger with the Chesapeake and Ohio Railway Company (C & O) for joint control of the Baltimore and Ohio Railroad Company (B & O). However, when at a later date C & O had contracted for the purchase of some 61% of B & O stock, Central gave up its plan and renewed negotiations with Penn. The two roads signed an agreement of merger in 1962. The New York, New Haven and Hartford Railroad Company (NH) approached Penn and Central for inclusion in the plant but was given a deaf ear. The merger agreement provided that all properties, franchises, etc. (permitted by respective state law), would be transferred to the merged company and appropriate stock exchange, debt arrangements, etc., effected.
11
As the Commission found, the merger would 'create an hour-glass shaped system flared on the east from Montreal, Canada, through Boston, Mass., to Norfolk, Va., and on the west from Mackinaw City, Mich., through Chicago, Ill., to St. Louis, Mo.' 327 I.C.C., at 489. It would operate some 19,600 miles of road in 14 States between the Great Lakes, with a splash in Canada on the north, and the Ohio and Potomac Rivers on the south. After the two systems are connected as planned and new and expanded yards are provided, the merger will consolidate trains now moving separately between the same points. The combined systems will have a substantial amount of parallel trackage and routes, with 160 common points or junctions. Terminals will be consolidated, present interchanges between the two systems will be eliminated and only the most efficient yards and facilities of the respective systems will be utilized. The merger plan calls for 98 projects that will intermesh their long-haul traffic at key points, creating a nonstop service between the principal cities with 'locals' covering the multiple-stop routes and branch lines. It is estimated that enormous savings in transit time can be effected. Certain chosen yards—such as Selkirk—will be remodeled and modernized into electronically operated yards with capacities of from 5,000 to 10,000 cars per day. The through trains to the West will be formed at Selkirk and those from the West broken up for dispatch to terminals or consignees in New England, New York, and northern New Jersey. The plan calls for some New York City traffic to be routed over Central's Hudson River East Shore line to lessen cost. By consolidating traffic on fast through lines, filling out trains, rerouting over the most efficient routes, eliminating some interchanges and effecting other improvements, the merged company will reduce by 6,000,000 the number of train miles operated. A single-line service will be operated between more points, with less circuity and less switching. The plan also calls for 31 daily trains to be withdrawn from the Pennsylvania with seven new ones added, leaving a total of 319 trains daily.
12
The Pennsylvania is the largest and Central the third largest railroad in the Northeastern Region. Together the operating revenue of the two roads was over $1,500,000,000 in 1965. Their net income in 1964 totaled almost $57,000,000 and in 1965 ran in excess of $75,000,000. In 1963 the total net was barely $16,000,000. The cost of operation of the two systems runs $90,000,000 a month and their working capital was some $72,000,000 in 1965. As of December 31, 1963, their combined investments were $1,242,000,000. The Pennsylvania and Central systems are each made up of underlying corporations. As of the date of the Examiners' Report the merged company would have ownership interest in 182 corporations and 10 railroads under lease. Thirty-six of the corporations are rail carriers, in six of which the merged company would have a voting control. All six are Class I railroads. It would likewise control six Class II railroads, five switching and terminal railroads, a holding company, five car-leasing companies, four common carriers and 34 noncarrier corporations.
13
The NH2 is the sixth largest railroad in the Northeastern Region and the largest in New England. On a national basis it ranks fourth among passenger-carrying railroads and is one of the largest nontrunkline freight roads. It has some 1,500 miles of railroad in four States—Massachusetts, Rhode Island, Connecticut, and part of New York. NH has been in reorganization under § 77 of the Bankruptcy Act, 47 Stat. 1474, as amended, 11 U.S.C. § 205, since 1961.3 While its gross revenues have run in excess of $120,000,000, it has run deficits since 1958. During the trusteeship its deficits have run from $12,700,000 in 1962 to $15,100,000 in 1965.
III.
14
The protesting parties, their setting in the Northeastern Region and their position on the merger.
15
Altogether some 200 parties participated in the proceedings before the Commission, some in support of and others in opposition to the merger. None of the appellant railroads challenge the merits of the merger; however, appellants Milton J. Shapp and the City of Scranton both attack the merger on its merits. Aside from PennCentral and NH, there are 10 other carriers involved in this proceeding.
16
Three of these are the protected carriers—B & M, D & H and E L. B & M operates a freight and passenger service in Maine, New Hampshire, Vermont, Massachusetts and New York over some 1,500 miles of road. It has suffered consecutive deficits in net income for some years and has not appealed from the decision of the District Court. D & H operates about 750 miles of road with some 600 in New York, less than 50 in Vermont and the balance in Pennsylvania. Its net income in 1965 was $5,000,000, its highest year since 1960. E—L operates some 3,000 miles of railroad located in New Jersey, New York, Pennsylvania, Ohio, Indiana and Illinois. Its net income was over $3,000,000 in 1965 but it suffered heavy deficits in the seven preceding years. As we have previously noted, these three railroads have filed applications for inclusion in both this case and in Norfolk & W. Ry. Co. and New York, C. & St. L.R. Co.—Merger, 324 I.C.C. 1.4 The Commission has withheld action on the inclusion of E—L, B & M and D & H, in Penn-Central until there is a final determination of their inclusion proceeding with Norfolk and Western (N & W). In the latter proceeding Commissioner Webb filed his report on December 22, 1966, recommending the inclusion of E—L and D & H in the N & W system but was unable to prescribe terms for inclusion of B & M—this was left to private negotiation between the railroads. On argument here the Commission has indicated that it anticipated entering a final order in the matter by July or August 1967. If this is favorable these three roads would be included in the N & W system, which has indicated its acquiescence in such a plan.
17
Six additional railroads involved here are the C & O, B & O, the Central of New Jersey (CNJ), the Reading Company, the Norfolk and Western, and the Western Maryland Company (WM). The C & O—B & O system is the result of a control proceeding in 1962. See Chesapeake & O. Ry. Co.—Control—Baltimore & O.R. Co., 317 I.C.C. 261, sustained, sub nom. Brotherhood of Maintenance of Way Employees v. United States, D.C., 221 F.Supp. 19, aff'd, per curiam, 375 U.S. 216, 84 S.Ct. 341, 11 L.Ed.2d 270 (1963). Together these two roads operate some 10,000 miles of railroad. Their lines extend from Michigan through Ohio and West Virginia to Virginia and from Chicago, Ill., and St. Louis, Mo., to Rochester, N.Y., and Washington, D.C. Their net operating income in 1965 totaled over $80,000,000. In addition, B & O owns 38% voting control of Reading which in turn controls CNJ. Reading has 1,200 miles of railroad in eastern Pennsylvania with net operating revenue of some $8,000,000 in 1965. CNJ has 514 miles of railroad extending from Scranton, Pa., to Jersey City, N.J. In 1965 it had a net operating deficit in excess of $3,000,000. C & O—B & O also own jointly 65% of the voting stock of WM. The latter has 741 miles of railroad extending from Connellsville, Pa., and Webster Springs, W. Va., to Baltimore, Md. In 1965 its net operating income was nearly $8,500,000.
18
N & W has 7,000 miles of railroad extending in a double prong from Des Moines, Iowa, and Kansas City, Mo., on the west to Buffalo, N.Y., and Pittsburgh, Pa., on the east and from Cincinnati, Ohio, and Bristol, Va., on the west to Hagerstown, Md., and Norfolk, Va., on the east. Its net operating income for 1965 was approximately $118,000,000. As we have noted, an inclusion proceeding is now pending under which B & M, D & H and E—L seek inclusion in the N & W system.
19
On October 11, 1965, C & O—B & O and N & W filed an application with the Commission asking approval of their merger into a single system and offering to include B & M, D & H, E—L, the Reading and CNJ therein, subject to various conditions. If this were effected and the Penn-Central—NH merger were effected, the Northeastern Region would then have two giant systems i.e., Penn-Central and C & O—B & O—N & W.
20
Only one additional railroad remains a party here, the Chicago and Eastern Illinois Railroad Company (C & E I). It has approximately 750 miles of railroad operating between Chicago, Ill., St. Louis, Mo., and Evansville, Ind., with a net operating income of nearly $3,500,000 in 1965. The Missouri Pacific Railroad Company has already been authorized by the Commission to make C & E I a part of its system. The fear of C & E I here was that the Penn and Central merged would be a more formidable competitor than the Central alone and it, accordingly, sought the imposition here of special routing and traffic conditions.
21
The only other appellants are the City of Scranton, Pa., and Milton J. Shapp. Scranton is served by E—L, D & H and CNJ. It fears that the merger will have adverse effects upon the city and therefore opposes the merger. Shapp sues as a citizen and stockholder of Penn and is likewise in opposition to the merger.
22
The United States has filed a memorandum in which it does not 'quarrel with the merits of the Penn-Central merger proposal itself.' The agencies of the Executive Branch, the Solicitor General reports, 'believe that the merger is in the public interest and that its consummation should be promptly effected.' This view, however, is based on the assumption 'that a place in the emerging pattern of consolidation in the Northeast can be found for the lesser roads of the region.' It is the Commission's approval of the immediate consummation of the merger prior to the completion of the proceedings to determine the place of the lesser roads to which the United States objects. It contends that since the very survival of the three protected railroads is threatened by the Penn-Central merger, the Commission must first provide protection for them until their absorption by 'a major system like Norfolk and Western.' To this end the United States suggests that we hold the case to enable the Commission to conclude the related proceedings which it now has under consideration. The United States concludes that: 'Only if the Commission is unable to promptly resolve the problems resulting from the merger would we deem it appropriate to urge this Court to reach the merits of the appeals and reverse the judgment below.'
23
The appellant railroads take varying positions all short of attacking the merits of the merger. The three protected railroads contend that the merger should not be consummated prior to the final determination of their inclusion in some major system or the enforcement of effective protective conditions in the interim. Judicial review, they say, of the protective conditions would otherwise be illusory. The C & O—B & O group and the N & W system maintain that the conditions of the April 6, 1966, order give the protected railroads a vested interest in the Penn-Central merger which would result in the protected railroads diverting traffic to Penn-Central which would normally have gone to them. They say, as does the United States, that the conditions were drawn without the benefit of notice and hearing, are deficient and enforcement thereof would be to their detriment. C & E I points to what it calls inconsistent findings as to the benefits it will have 'of intensified competitive effors' by its connecting carriers on routes in competition with Penn-Central. It contends that the indemnity conditions would 'compound the economic injury' which would befall the C & E I as a result of the merger and which prompted it to request protective measures.
IV.
24
The national transportation policy and practices of the Commission thereunder.
25
This Court has often pointed out that the national transportation policy 'is the product of a long history of trial and error by Congress * * *.' McLean Trucking Co. v. United States, 321 U.S. 67, 80, 64 S.Ct. 370, 377, 88 L.Ed. 544 (1944). In that case it found that the Transportation Act of 1920 'marked a sharp change in the policies and objectives embodied in those efforts.' Ibid. In that Act the Congress directed the Commission to adopt a plan for consolidation of the railroads of the United States into 'a limited number of systems.' 41 Stat. 481 (1920). Consolidation would be approved by the Commission upon a finding that the transaction was in harmony with and in furtherance of the complete plan of consolidation and that the public interest would be promoted. But the Commission was warned that 'competition shall be preserved as fully as possible.' Ibid. The initiation of this unification, however, the Congress left wholly with the carriers. The Commission was given no power to compel mergers. This pattern was carried forward in the Transportation Act of 1940, 54 Stat. 898; however, § 5 of the former Act was amended to authorize the Commission to approve carrier-initiated proposals which it found to be consistent with the public interest and upon just and reasonable conditions. Under § 5(2)(d) additional power was given the Commission to condition its approval of a merger upon the inclusion, upon request, of other railroads operating in the territory involved. As we said in County of Marin v. United States, 356 U.S. 412, 78 S.Ct. 880, 2 L.Ed.2d 879 (1958), 'the result of the (1940) Act was a change in the means, while the end remained the same. The very language of the amended 'unification section' expresses clearly the desire of the Congress that the industry proceed toward an integrated national transportation system through substantial corporate simplification.' Id., at 417—418, 78 S.Ct. at 883. The Commission has, therefore, not proceeded by or under 'a master plan' for consolidation in the various regions. Following this procedure the Commission has refused to consolidate the Northeastern Region railroad merger or control proceedings into one case. See Chesapeake & O. Ry. Co.—Control—Baltimore & O.R. Co., supra, at 265—266, and Norfolk & W. Ry. Co. and New York, C. & St. L.R. Co.—Merger, supra, at 18. Also Brotherhood of Maintenance of Way Employees v. United States, D.C., 221 F.Supp. 19, at 29—31; aff'd per curiam, 375 U.S. 216, 84 S.Ct. 341, 11 L.Ed.2d 270 (1963).
26
It is contended that the order here is fatally defective for failure to comply with § 5(2)(b) of the Act which requires the Commission to 'enter an order approving and authorizing such transaction, upon the terms and conditions, and with the modifications, so found to be just and reasonable'. The claim is that by leaving the indemnity provisions open for future determination the Commission did not meet the requirements of the section. Once a valid order is entered by the Commission, it, of course, has the power to retain jurisdiction for the purpose of making modifications that it finds necessary in the light of subsequent circumstances or to assist in compliance with prior conditions previously required or, of course, to correct any errors. The Commission also has power under § 5(9) of the Act to make certain supplemental orders and under § 17(3) may correct clerical errors in certificates. We do not find it necessary to pass upon the question of naked power in the Commission to do what has been done here. Even assuming that it does have that power, we find that its order approving immediate consummation of the merger is insupportable on its findings.
V.
27
Conclusions.
28
The Commission found in its April 6, 1966, order that the protected railroads would be adversely affected to a 'serious degree' by the Penn-Central merger; that they would be 'severely handicapped' in providing required transportation to the highly industrialized areas that they serve, which service is 'essential' and 'the public service dictates that it be preserved.' It then held that immediate consummation of the merger would be consistent with the public interest only if the conditions of Appendix G were immediately imposed. And significantly, it concluded that even though it approved the merger, consummation of it would not be permitted unless the protected railroads 'are protected during the period necessary to determine their future * * *.' 327 I.C.C., at 529, 532. But after this suit was brought and strong opposition to Appendix G was voiced, the Commission, on September 16, 1966, withdrew all of the conditions of Appendix G save the traffic ones. This left the protected railroads without sufficient protection according to the Commission's own findings. This was done apparently because of the vehement objections of the appellant railroads that Appendix G would cause havoc rather than give shelter. We cannot say, as did the District Court, that the September 16, 1966, order meant nothing more than that the traffic conditions left imposed by it were in themselves sufficient to protect the three protected railroads during the interim between the merger and the decision as to their future in one of the major railroad systems. This interpretation runs in the face of not only the prior findings enumerated above but the specific terms and conditions of Appendix G found to be necessary to prevent 'impairment or serious weakening' of the three carriers. Id., at 532. Indeed, rather than being tentative, the requirements of Appendix G were rigidly fixed and established for the entire period preceding inclusion of the protected roads in some major system. The finding of consistency with the public interest was predicated entirely upon the unqualified acceptance of Appendix G by Penn-Central. Otherwise the merger would be put off for two years. In its effort to expedite the merger the Commission failed to provide the very protection that it at the same time declared indispensable to the three roads. This leaves the ultimate conclusion—that prompt consummation of the Penn-Central merger clearly would be in the public interest—without support and it falls under the Commission's own findings.
29
In view of these facts and since none of the findings of the Commission were disturbed, attacked, or amended, we believe it was error to permit the merger to be effected. And we also note that even in the ultimate order of approval dated September 16, 1966, the Commission pointed out that its 'finding (as to the merger being consistent with the public interest) was that, if the immediate consummation were to be authorized E—L, D & H and B & M would require special protection during the pendency of their petitions for inclusion in a major system.' Nevertheless, in spite of this confirmation of its finding, the Commission ordered the merger immediately consummated without the 'special protection' afforded by Appendix G. Having found that the finding of consistency with the public interest could only be sustained by the imposition of the Appendix G 'special protection,' the Commission failed to meet its statutory obligation when it arbitrarily removed the special conditions of Appendix G while leaving the prior finding standing.
30
In view of the patent invalidity of the order permitting immediate consummation of the merger and in light of the present status of the proceeding before the Commission, we can only conclude that it is necessary that the decision as to the future of the protected railroads and their inclusion in a major system be decided prior to consummation of the Penn-Central merger. This is especially true since the findings and recommendations of Commissioner Webb, as to the inclusion of the three protected railroads, are now under submission to the full Commission and a decision should be reached thereon by July or August 1967, we are advised by counsel. This short time would have little effect upon the ultimate consummation of the merger—which has been in the making for some 10 years now—and if it resulted in the future of the protected railroads being finally decided, serious losses to them would be obviated. Furthermore, there would be no occasion for the conditions of Appendix G to be imposed and hearing and decision on this highly controversial matter would not be necessary insofar as the three protected railroads are concerned. Finally, such action would provide the solution to the problem of the necessary and indispensable protection to the three railroads that the Commission found prerequisite to the merger.
31
Furthermore, the serious charge that the conditions of Appendix G were imposed without notice and hearing would in a large part be dissipated by this course of action. As to the three protected roads it would be entirely obviated if and when their fate is determined. As to the other railroads affected, the Commission could more quickly conclude its present hearing and make a decision as to the effect of the merger upon them and the protection, if any, required.5
32
This disposition is also buttressed by the fact that should the immediate consummation of the merger be permitted and at a later date neither the interim conditions nor the inclusion proceedings be disposed of favorably to the continued existence of the merger, the only remedy remaining would be to set it aside and unscramble the consolidation. It is said that this does not follow since only the indemnity terms are at issue and they involve only money. This is blinking at reality. The fact is that traffic, trackage, terminals, etc., as well as financial and corporate structures can and will, beyond doubt, be quickly combined, changed, abandoned, or consolidated. The only condition now imposed for the maintenance of the status quo is the provision against any change of routes, traffic, rates, etc., as to business in which the three protected roads participate. They are comparatively small lines located for the most part in northeastern coastal States and would, percentage wise, be a small part of the total routes, traffic, rates, etc., of the whole Penn-Central system. There would be no restriction as to other routes, traffic, rates, etc., as well as all other operations of the merged company, including terminals, warehouses, etc., financial and corporate structures. The plan that the Penn-Central proposes to follow, as we have briefly sketched it, indicates not only major changes but quick action. Our experience with other mergers, and common sense as well, indicate that the 'scrambling' goes fast but the unscrambling is interminable and seldom effectively accomplished.
33
The Penn-Central merger has been studied for a decade. Indeed, the parties to the merger agreed to it over five years ago and it has been under Commission consideration ever since that time. This is, of course, the more reason for expedition. We note and give weight to the estimates of the Commission that the inclusion proceedings of the three roads in the N & W should be concluded in 'a relatively short time.' Our remand should, therefore, entail only a very short delay before the Commission. If its order is attacked in court the hearing there can be expedited, as was this one, and an early determination made. We do not believe that this is too high a price to pay to make as certain as human ingenuity can devise, a just and reasonable disposition of this matter for all of the parties. After all, it is the largest railroad merger in our history and if not handled properly could seriously disrupt and irreparably injure the entire railroad system in the northeastern section of the country—to the great detriment not only of the parties here but to the public convenience and necessity of the entire Nation.
34
The judgment of the District Court is reversed and the cause is remanded with instructions that it be remanded to the Commission for further proceedings not inconsistent with this opinion.
35
It is so ordered.
36
Judgment reversed and cause remanded with instructions.
APPENDIX TO OPINION OF THE COURT.
APPENDIX G.*
37
1. Pending final determination of the petitions for inclusion filed by E—L, D & H, and B & M in this proceeding and in Finance Docket No. 21510 et al., or such other period of time as the Commission may prescribe, hereinafter called the protective period, and on traffic for which E—L, D & H and B & M are competitive factors, the merged company shall not publish or provide for any new or changed routing practice and/or freight rates or services, either locally or jointly with other carriers, which would divert or tend to divert traffic from routes in which E—L, D & H or B & M, now participates, or participated at the time this merger application was filed, or take any action or engage in any practice or conduct contrary to the purpose and general objectives of this condition as explained in this report.
38
For the purpose of illustrating—but in no way limiting—the application of this condition, the following specific provisions are prescribed:
39
A. During the protective period, and as to the described traffic, the railroads which shall make up the merged system will be considered separate railroads, as they now are, for the purposes of establishing new routes or rates or privileges and changes in present routes, rates or privileges.
40
B. When any of the described freight traffic is delivered to carriers of the merged system, it shall be allocated among the routes of the system in accordance with practices employed by the system's railroads at the time this merger application was filed.
41
C. Where through routes and joint rates are now in existence via any component railroad of the merged system and E—L, D & H or B & M, the participation therein of such components shall be maintained during the protective period with the same vigor as such components have heretofore exercised in competition with each other and other carriers, to the end of preventing noticeable diversion from such routes to any other route in which the merged company participates.
42
D. The merged company for the protective period shall agree to joint rates and divisions thereof on its freight traffic interlined with E—L, D & H or B & M under terms no less advantageous to E—L, D & H and B & M than are the terms which those three carriers now have with the component carriers of the merged system, and, in the event of any changes in such joint rates, the divisions shall not be changed in any manner which will result in E—L, D & H or B & M receiving proportionally less than they now receive on joint rates with such component carriers.
43
E. In conjunction with E—L, D & H and B & M, the merged company shall, during the protective period, keep open all routes now in force for the transportation of freight over the lines of the three companies and the component carriers of the merged system; shall maintain thereon service equal to or better than that being given on the date this merger application was filed; shall improve such service, to the extent within its power, at least as necessary to make the said through routes fully competitive with other routes in which the merged company participates; and, where joint rates are now in effect or were in effect when this merger application was filed, it shall maintain such rates; and where change in those rates becomes appropriate, changes shall conform to the requirement of provision D above.
44
2. The term 'competitive factor' shall be construed to mean that at the date of this order or at the time this merger application was filed, E—L, D & H or B & M was both participating in the particular route, rate or service and was handling traffic thereon.
45
3. E—L, D & H and B & M shall be indemnified by the merged company under the circumstances and according to the plan specified in the report, supra.
46
4. This appendix constitutes a plan for protection against the effects of the applicants' merger and does not apply to loss caused by: (a) hostile or warlike action by (1) any government or sovereign power (de jure or de facto) or (2) military, naval or air forces; (b) insurrection, rebellion, civil war, et cetera; (c) national disaster; (d) economic depression; (e) strikes; (f) act of God; or (g) other similar state of affairs.
47
5. The interpretation, application and enforcement of the conditions in this appendix shall be governed exclusively by the following provisions:
48
A. All controversies arising under this appendix shall be determined with finality by the Interstate Commerce Commission in the manner indicated below.
49
B. (1) Except as to section 3, supra, whenever E—L, D & H or B & M considers that these protective conditions are being violated, or that a violation will result from the effectuation of a tariff publication in which the merged company participates, they may (individually or collectively) file a complaint with the Commission, Board of Suspension, and with the merged company, specifying the rate, route, practice, privilege, or such matters constituting the alleged violation and setting forth in a statement verified by an appropriate official of the complainant all the data giving rise to the complaint.
50
(2) In the event the Board of Suspension shall determine that, as to the matter complained of, E—L, D & H or B & M is a competitive factor (as defined in these conditions), it shall in the case of a tariff publication not yet effective, suspend the tariff forthwith for the protective period (as defined in these conditions), and shall conduct an investigation into the matter complained of; and if the alleged violation is found not to exist, the Board shall thereupon order the suspension removed; and, in all matters not involving a tariff not yet in effect, the Board shall investigate the matters complained of; and, if in any investigation, it finds that these protective conditions are being violated, it shall order the cancellation of the violative tariff provisions or, where a tariff is not involved, the termination of the violative conduct. Orders of the Board shall have force and effect as orders of this Commission and shall be enforced as such.
51
C. All controversies arising under section 3 above, shall be determined by the Commission, Finance Board No. 2. Complaints, verified by an appropriate officer of the complainant, shall be addressed to such Board and the merged company, specifying both the basis of the complaint and the relief sought.
52
D. (1) All determinations as to whether E—L, D & H or B & M is a competitive factor shall be made within 10 days after a complaint is filed; and final decisions as to issues raised by a complaint shall be rendered within 90 days after the complaint is filed.
53
(2) Appeal shall lie to the Commission, division 2, from orders of the Board of Suspension; and to the Commission, division 3, from orders of Finance Board No. 2.
54
(3) Special rules for proceeding before the Boards and appealing therefrom shall be promulgated by this Commission at a future time.
55
6. Notwithstanding the provisions of sections 1, 2, 3, 4, and 5, an agreement pertaining to the interests of E—L, D & H and/or B & M may be hereinafter entered by the merged company and the protected carriers, or any of them, which shall supersede the protection provided by such sections to the extent the agreement does not violate the provisions of the Interstate Commerce Act or the Commission's rules and regulations thereunder.
56
7. In the event applicants fail to accede to the above-named conditions, consummation of the proposed merger will be deferred for 2 years or such time as the Commission may determine to be necessary to protect the interests of D & H, B & M and E—L.
57
8. These conditions shall be construed, administered and enforced with the view to protecting the E—L, D & H, and B & M and the shipping public which depends upon them for transportation, against the effects of the merger for the period and purposes set forth above.
58
9. These conditions are to be applied in addition to the standard conditions set out in appendix I hereof.
59
Mr. Justice BRENNAN, concurring.
60
I join the Court's opinion. In its determination whether the merger is consistent with the public interest, the ICC did not discharge its statutory duty to consider the effect upon that interest of the inclusion, or failure to include, the E—L, D & H and B & M. The ICC order authorizing immediate consummation of the merger as consistent with the public interest must therefore be set aside.
I.
61
The ICC's approval of the Penn-Central merger is the last of three authorizations for consolidation of major eastern roads. In the first, the C & O was allowed to control the B & O.1 In the second, the N & W was permitted to merge with the Nickel Plate.2 The ICC has been confronted with the problem of what to do with the E—L, D & H and B & M since they petitioned for inclusion in the proposed N & W-Nickel Plate system as a condition of approval. E—L's precarious financial condition led to that carrier's withdrawal of its petition in favor of inclusion by negotiation, 324 I.C.C. 1, 21, and as a consequence of the denial of the D & H and B & M petitions, 324 I.C.C., at 31—32. In the meantime, the Penn-Central proposal had come before the Commission, and D & H, fearful that the Penn-Central merger might be approved and consummated before its inclusion in a major system was assured, argued that approval of Penn-Central be held up by consolidating the two proceedings, or that immediate consummation of N & W-Nickel Plate should be made contingent on inclusion upon equitable terms of the three roads in the event Penn-Central is later approved. 324 I.C.C., at 30—31. The ICC denied these requests, but recognizing there was substance to D & H's fears, it retained jurisdiction for five years to permit the roads to file petitions for inclusion in the N & W system. Inclusion was to be required upon equitable terms if 'found consistent with the public interest,' and consummation of the merger would constitute 'irrevocable assent' by N & W to the condition. 324 I.C.C., at 148.
62
Before N & W-Nickel Plate was approved, the Penn-Central proposal had been filed. The three roads, appreciating the danger Penn-Central would pose to their survival, sought inclusion, conditioned upon denial of their inclusion in N & W. Soon after, negotiations between E—L and N & W for voluntary inclusion apparently broke down, because at approximately the same time the three roads filed petitions for inclusion in N & W, and N & W and C & O filed applications to merge with each other, stating that only such a merger could support the inclusion of the three roads in N & W on equitable terms and consistently with the public interest. The three roads urged in their applications both for inclusion in Penn-Central and for inclusion in N & W, that Penn-Central be delayed until their inclusion in one of the systems was assured. This was tantamount to a request that the two proceedings be consolidated for decision, and the Department of Justice supported their position.
63
The ICC found, as the three roads alleged, (1) the service rendered by the three roads 'is essential and the public interest dictates that it be preserved,' and (2) it is 'doubtful that, without inclusion in a major system, these three carriers could withstand the competition of the applicants merged * * *.' 327 I.C.C. 475, 529, 532. All the parties concerned recognized, however, that inclusion of the roads in N & W would be preferable to inclusion in Penn-Central, and that it would be some time before the N & W inclusion proceeding was completed. Rather than delay consummation of Penn-Central, which the ICC found would result in substantial savings and improved service, the ICC ordered immediate consummation. It pointed out that the three roads had petitions for inclusion in N & W pending, and provided that, in the event inclusion in N & W was denied, the three roads could petition the ICC for one year following the judgment of denial to allow or require inclusion of the roads in Penn-Central, on equitable terms, if found to be in the public interest. 327 I.C.C., at 553. Meanwhile, in addition to usual conditions for preserving existing routes and gateways, the ICC prescribed 'unprecedented' conditions of two kinds: (1) traffic conditions requiring Penn-Central to continue existing practices and route patterns with respect to traffic competed for by the three roads; (2) conditions guaranteeing the three roads an indemnity computed on the basis of a fixed share of the combined total of the revenues realized by them and Penn-Central; this was to compensate the roads for income lost from diversion of their traffic to Penn-Central. 327 I.C.C., at 532. These conditions were acceptable to Penn and Central but not to the three roads or to N & W and C & O—B & O.
64
Proceedings to set aside the ICC order were brought in the District Court and petitions for reconsideration were also filed with the ICC. Some of the latter attacked the validity of the conditions on the ground that they were imposed without hearing. E—L and D & H, however, renewed their complaint against the approval before assurance of their inclusion in a major system and alternatively attacked the conditions as indefinite and inadequate, demanding in addition to be indemnified for capital loss. C & O—B & O and their family lines for the first time introduced evidence that the merger would adversely affect them, and argued that the indemnification condition of the original order would create a community of interest between the protected roads and Penn-Central. The Department of Justice urged postponement to consider the questions raised concerning the conditions and the evidence of adverse effect offered by C & O—B & O.3
65
The ICC rescinded the indemnity conditions pending a hearing on whether they should be modified and whether a capital loss indemnification condition should be added, but refused on the ground of laches to hear the evidence offered by the C & O. 328 I.C.C. 304, 318. The ICC reaffirmed its approval of the merger subject to Penn-Central's acceptance of the conditions as finally formulated, although not foreclosing Penn-Central from seeking judicial review of any provision for capital loss indemnification. 328 I.C.C., at 329. The District Court denied interlocutory relief enjoining Penn and Central from going forward with the merger.4
II.
66
The statutory duty of the ICC is clear. Section 5(2)(b) of the Interstate Commerce Act, as amended by the Transportation Act of 1940, authorizes the agency to approve only those consolidations it finds 'will be consistent with the public interest * * *.' 54 Stat. 906, 49 U.S.C. § 5(2)(b). The statute creates no presumption that mergers generally are either consistent or inconsistent with that interest; rather, it requires that each proposal be examined in depth to determine its effects upon the national transportation system. Thus, the ICC is explicitly directed to consider '(1) The effect of the proposed transaction upon adequate transportation service to the public; (2) the effect upon the public interest of the inclusion, or failure to include, other railroads in the territory involved in the proposed transaction; (3) the total fixed charges resulting from the proposed transaction; and (4), the interest of the carrier employees affected.' 49 U.S.C. § 5(2)(c). The National Transportation Policy is the controlling guide, McLean Trucking Co. v. United States, 321 U.S. 67, 82, 64 S.Ct. 370, 378, 88 L.Ed. 544, and that policy requires the Commission 'to promote safe, adequate, economical, and efficient service and foster sound economic conditions in transportation and among the several carriers * * * to the end of developing, coordinating, and preserving a national transportation system by water, highway, and rail, as well as other means, adequate to meet the needs of the commerce of the United States, of the Postal Service, and of the national defense.' 49 U.S.C., note preceding § 1. These provisions call for the application of discerning judgment to a wide range of factors, and preclude the position that the purpose of the 1940 Act is simply to promote railroad consolidation.5 The ICC has recognized that inquiry into a proposed transaction does not end with the possibilities for increased economies, but extends to 'the effect of the transaction upon adequate transportation service to all parts of the public which would be so affected,'6 which encompasses the 'duty, as an administrative matter, to consider the effect of the merger on competitors and on the general competitive situation in the industry in the light of the objectives of the national transportation policy.' McLean Trucking Co. v. United States, supra, at 87, 64 S.Ct. at 380. 'The public interest is the prime consideration, and in making that determination we must have regard for all relevant factors.' Toledo, P & W.R. Co.—Control, 295 I.C.C. 523, 547.
67
A critical factor, not in my view properly applied in this case, is 'the effect upon the public interest of the inclusion, or failure to include, other railroads in the territory involved in the proposed transaction * * *.'7 The Commission is authorized, 'as a prerequisite to its approval of the proposed transaction, to require, upon equitable terms, the inclusion of another railroad or other railroads in the territory involved, upon petition by such railroad or railroads requesting such inclusion, and upon a finding that such inclusion is consistent with the public interest.' 49 U.S.C. § 5(2)(d). The ICC recognizes that it is required to consider the issue of inclusion even when no petition is filed,8 because if a proposed transaction 'would endanger or impair the operations of other carriers contrary to the public interest,' Chicago, B. & Q.R. Co.—Control, supra, 271 I.C.C., at 157, inclusion of the affected carriers is required by and not merely consistent with the public interest.
68
In this case the ICC, although determining that the three roads perform an essential service and that their inclusion in some major system is required by the public interest, takes the position that its duty as to inclusion is sufficiently discharged when it provides for the possibility of inclusion in either N & W or Penn-Central, and meanwhile promises to impose protective conditions. My disagreement is not with the proposition that the Act vests wide discretion in the agency to allow a merger to go forward while conditions as to inclusion are worked out. The Commission has broad authority to approve transactions 'subject to such terms and conditions and such modifications as it shall find to be just and reasonable * * *,' § 5(2)(b), and 'may from time to time, for good cause shown, make such orders, supplemental to any order made under paragraph (1), (2), or (7), of this section, as it may deem necessary or appropriate,' § 5(9). It has in fact occasionally reserved jurisdiction (1) to work out equitable terms for an inclusion it has already determined is required by the public interest, New York Central Unification, 154 I.C.C. 489, 493 494;9 and even (2) to determine after consummation whether inclusion will be consistent with or required by the public interest, Union Pac. R. Co. Unification, 189 I.C.C. 357, 363.10 But decisions of this sort proceed upon the assumption that inclusion will later be possible, and that therefore the finding that the proposed consolidation is in the public interest will not be undermined. This assumption is not always warranted. An inclusion may turn out to be impossible, either because of inability to work out equitable terms, a circumstance upon which inclusion orders have invariably been conditioned, or because upon full consideration the effects of the contemplated inclusion might be regarded as so detrimental that the proposed merger which made necessary the inclusion would be against the public interest.
69
The Commission must decide, in the first instance, whether the risk of such ultimate developments is acute enough to counsel against approval of a consolidation subject to the working out of the terms of an inclusion or to the working out of both the terms and the inclusion. See Jaffe, Judicial Control of Administrative Action 565—567 (1965). But resort to the practice of deferring the accomplishment of inclusions or other ends required by the public interest must be carefully weighed and reviewed. Where there is little or no danger that inclusion consistent with the public interest and upon equitable terms might turn out to be impossible, it is sufficiently likely, despite deferral, that the Commission will have fulfilled its basic statutory duty. Where there is a significant possibility, however, that a deferred inclusion upon which a finding of public interest is premised will be unattainable or attainable only by setting into motion new forces which have not been weighed in evaluating the basic proposal, then the Commission's statutory duty to consider all the relevant factors has not been properly discharged. And ICC action of this sort generally creates dangers far greater than those which normally accrue when an agency or court fails to apply the governing standard to all the relevant facts, since the decision to allow consummation is often irreversible, as it concededly is in this case, or reversible only at enormous expense.
70
Prior authorizations deferring decision on inclusions held to be required by the public interest entailed no significant risk that the ICC had approved a consolidation without fulfilling its statutory duty. When, in New York Central Unification, supra, the Commission authorized immediate consummation but retained jurisdiction to assure that terms would be worked out for the purchase of lines whose purchase it had required because their preservation was found to be essential to the public interest, there was no doubt that equitable terms could be arranged. The roads to be included were short lines, complementary to the New York Central system, so consummation of the proposed unification created no reason to expect a detrimental effect. Moreover, the roads were required to submit the issue of value to arbitration in the event they failed to agree. 154 I.C.C., at 493. When, in Union Pac. R. Co., supra, the Commission deferred until after consummation both the question whether the public interest required inclusion and the matter of working out terms, there was no indication that inclusion might be impossible because of its effects without rendering the proposed transaction against the public interest, or that equitable terms or inclusion might be unattainable, or that the short lines involved would be subjected to danger from traffic diversion or otherwise during the period between consummation and inclusion. The transaction authorized only accounting changes; no change in operation was either contemplated or possible. 189 I.C.C., at 363.11
71
This case is in striking contrast. Allegations are made by the Department of Justice and numerous other parties that inclusion of the protected roads in either of the major systems contemplated by the Commission might not be possible consistent with the public interest or upon equitable terms. These arguments demonstrate that, because of possible difficulties involved in the inclusion proceeding and in establishing acceptable interim conditions, the 'opportunities for the ultimate inclusion of E—L, D & H and B & M in a major rail system * * *' which the Commission has endeavored to preserve create serious uncertainties.
72
The first and more obviously uncertain alternative is inclusion in Penn-Central itself. The Commission retained jurisdiction to allow the three carriers to seek inclusion in Penn-Central within one year after final denial of any of their petitions for inclusion in N & W. All concerned recognize that inclusion in N & W is the preferable solution, since inclusion of the roads in Penn-Central would create a virtual monopoly of all rail traffic in most of New England and New York.12 (See Appendix A for a map depicting this result.) It is true that Commissioner Webb said in the N & W inclusion proceeding that 'the Penn-Central reports indicate that the merger would be consistent with the public interest notwithstanding any lessening of intramodal competition resulting from inclusion of EL, D & H, and B & M,' Norfolk & W.R. Co.—Merger, F.D. No. 21510, p. 27, but this statement is refuted by the Penn-Central reports themselves. Both the Examiners and the Commission expressly reserved for a later time the question whether inclusion of the roads in Penn-Central would be consistent with the public interest,13 and rather than implying that the merger would be in the public interest despite inclusion of the protected roads, the Examiners' Report and the Commission's opinions indicate that the merger was approved under the assumption that the protected roads would be included in N & W.14
73
The 'opportunity' for inclusion in the N & W hardly presents a less risky alternative. The N & W proceeding has gone to hearing and Commissioner Webb, acting as Presiding Officer, has issued a report recommending inclusion in N & W of E—L and D & H, and authorizing inclusion of B & M if the parties are able to agree to terms. There has as yet been no action by the ICC on the report; and based upon its contents and the objections raised in this Court, there is a significant possibility, given the present state of circumstances, that inclusion in N & W might be unattainable or attainable only at the price of rendering the Penn-Central merger against the public interest, and that, even if inclusion could be accomplished consistent with the public interest, it might be impossible to work out equitable terms. Appellees make much of the fact that N & W, by consummating its merger with Nickel-Plate, 'irrevocably agreed to include these three petitioners in their system upon terms agreed upon among themselves or, if necessary, prescribed by (the ICC), provided such inclusion is found to be consistent with the public interest.' 327 I.C.C., at 529. But this condition expressly assumes a favorable resolution of both of the questions in dispute. As Commissioner Webb said in the N & W inclusion report:
74
'the only obligation expressly imposed on N & W * * * was to include the petitioners if the Commission found such inclusion to be consistent with the public interest and if the Commission also found that the inclusion could be effected on terms 'equitable to all parties involved,' both findings to be subject to full judicial review.' N & W Inclusion Report, at 16.
75
Commissioner Webb's recommended disposition reveals clearly that the dangers stemming from deferral exist even as to inclusion in N & W. He rejected an argument of C & O that its plan for absorption of the three roads into a merged C & O—N & W system was mutually exclusive with inclusion of the roads into an independent N & W, and the contentions of C & O and others that they would be adversely affected by the inclusion. He found inclusion of all three roads consistent with the public interest, pointing out that the roads would be able to survive in N & W despite significant losses to Penn-Central, and that greater intramodal and intermodal competition and better services would become possible. N & W Inclusion Report, at 31—32. However, he found substance to arguments relating to each of the three roads that their required inclusion would be against the public interest. Since authorization of the Penn-Central merger is premised on a finding that the roads must be included in a major system, these arguments are of great relevance here, and I address myself to them.
76
As to E—L, N & W argued inclusion would be too great a burden in light of its financial condition; for although E—L showed a modest profit in 1965 for the first time in years, N & W contended it was too soon to draw any optimistic conclusion and that it was no more able now to absorb E—L than it had been a few years before when the Commission refused to require E—L's inclusion in N & W because of E—L's 'precarious financial plight' and 'the burden another railroad would assume if it absorbed the Erie-Lackawanna now * * *.' 324 I.C.C., at 25. Commissioner Webb recognized that this argument had some merit, and characterized E—L's growth as 'erratic.' N & W Inclusion Report, at 17, 10. So enormous is E—L's debt, in fact, that the parties themselves agreed it 'precludes a merger of N&W and EL now or at any time in the near future.' Id., at 84. As a consequence, the Commissioner recommended that only control of E—L by N & W be required, looking to eventual merger with assumption of liabilities when circumstances would permit. D & H has no financial problem which would interfere with immediate merger, but Commissioner Webb found that the only sufficient connection between D & H and N & W was E—L, and therefore recommended that an order requiring inclusion of D & H in N & W be conditioned on inclusion of E—L, id., at 139, which consequently makes the arguments relating to E—L applicable to D & H as well. With respect to B & M, Commissioner Webb agreed with N & W and refused to recommend that its inclusion in any form be required, because of B & M's poor financial condition and limited prospects for recovery. He recommended only that inclusion be authorized, in the unlikely event N & W saw fit to agree to pay, within five years of the inclusion, a minimum rate for B & M shares equal to almost twice their value under Commissioner Webb's own appraisal. Id., at 153, 156.
77
It is not entirely clear, therefore, that E—L and D & H will be ordered included in N & W, and the likelihood that B & M will not be included under present circumstances is great. Therefore, it is reasonably possible that the premise upon which the Commission has proceeded in authorizing consummation of Penn-Central—that all three must be included in a major system—may be unattainable through inclusion in N & W because the required inclusion of at least one and possibly all three may not be consistent with the public interest. Neither is it a sufficient answer to this uncertainty that B & M could be included in Penn-Central, since its value to that system because of the monopoly it would make possible in large areas of New England would make inclusion economically feasible at equitable terms. As we have seen, whether Penn-Central would be worth the price despite this result is a matter of some dispute, which the ICC has never considered.
78
The Commission's duty to consider all the relevant effects of a consolidation before authorizing it extends, moreover, not only to whether an inclusion necessary to make the proposed transaction consistent with the public interest is in fact attainable, but also to whether such an inclusion, even though attainable, might set in motion events which could put the basic transaction proposed in a less favorable light. Thus, even if it is assumed that inclusion of E—L and D & H in N & W will occur, and that leaving B & M temporarily independent would not undermine the consistency of the Penn-Central merger with the public interest, it is incumbent upon the ICC to consider the potential effects on the public interest of such an outcome before authorizing consummation. Clearly, the ICC has not done so, and on this record there is a substantial likelihood that effects of enormous significance to the public interest might result.
79
Commissioner Webb refused to consider N & W and C & O's plan for merger with inclusion of the smaller roads, because he concluded the issue of inclusion could be settled without regard to the plan. It is clear, however, from the Commissioner's recommendations, that adoption of the N & W—C & O plan may well be a consequence of the Penn-Central merger both through its effect on the smaller roads and its effect directly upon N & W and C & O. The uncertainties with respect to inclusion of the roads in N & W will be highly probative evidence when the Commission gets around to considering the N & W—C & O proposal. E—L's large debt, for example, which now prevents its outright merger in N & W, would be less of an obstacle if N & W and C & O were combined and thereby strengthened. Even more significant is the fact that B & M's inclusion, presently regarded as impossible in N & W, would probably be possible if N & W were combined with C & O—B & O.15 There is no doubt, moreover, that C & O and N & W will, in addition to offering a solution to the inclusion problem, allege that they stand to be seriously hurt by the Penn-Central system unless they are allowed to combine. Although Commissioner Webb refused to hear evidence offered by C & O to prove such allegations, and although the Commission also refused on the ground of laches to grant C & O's petition to reopen Penn-Central to introduce evidence of traffic diversion, the ICC agreed to modify the finding of the Examiners in this case, Penn-Central Report, at 305, that the net effect of Penn-Central will not be detrimental to C & O, CNJ and other carriers or to their ability to provide general transportation service. Instead, the Commission substituted the finding that a detrimental effect 'has not been shown of record * * *,' 328 I.C.C., at 318, and thereby left it open to C & O to allege and prove at some later time that its merger with N & W is in the public interest at least in part because of traffic diversion caused by Penn-Central. With respect to N & W, some evidence of adverse effect from Penn-Central seems probable in light of Commissioner Webb's refusal to deduct from the value of the three roads the losses anticipated through diversion of traffic to Penn-Central, because 'N & W has resisted corresponding adjustments in its own earnings despite its admissions that it would suffer serious losses of traffic to Penn-Central * * *.' N & W Inclusion Report, at 44. The refusal to deduct any of the anticipated losses meant, in effect, that Commissioner Webb proceeded upon the assumption that N & W would lose the same proportion of traffic to Penn-Central as E—L expected to lose.16
80
It therefore appears that Penn-Central will increase the likelihood of, and may actually cause, an affiliation of N & W and C & O. The ICC has given no thought to whether such an affiliation would be in the public interest. It would create a virtual rail monopoly in some southeastern States (see Appendix B for a map depicting this result), which includes important traffic in coal between the border States and the Norfolk port area, from where it is exported abroad, and it is strongly opposed by both Penn and Central. Had the ICC faced the problem of inclusion, it might have been led to consider the possibility that Penn-Central could cause or increase the likelihood of an N & W—C & O affiliation. Only by considering this possibility could the ICC fulfill its obligation to consider all the relevant factors before approving the merger.
81
The 'opportunity' reserved by the ICC for inclusion of the roads in N & W is therefore, like the 'opportunity' reserved for inclusion in Penn-Central, shrouded in doubt as to whether inclusion could be required consistent with the public interest. Concededly, there is far more reason to believe that voluntary inclusion in N & W could at least be accomplished consistent with the public interest than could inclusion in Penn-Central. But on the other hand, while equitable terms could probably be arranged for inclusion in Penn-Central, it is open to serious controversy whether equitable terms will be attainable for inclusion of the roads in N & W. Commissioner Webb has found, of course, that equitable terms for B & M's inclusion in N & W cannot be worked out, and a possible consequence of this will be to create pressure in favor of the N & W—C & O plan or compel inclusion of B & M in Penn-Central. But even as to E—L and D & H (because its inclusion will probably be dependent on E—L's), the present controversy surrounding the conditions designed for interim protection makes considerably uncertain whether equitable terms will be possible once Penn-Central is consummated.
82
The purpose of the traffic and indemnity conditions originally imposed but now being reconsidered is to maintain the preconsummation status quo between Penn-Central and the three roads. One obvious end inferred from this purpose is to prevent irreparable harm to the three roads. But inherent in the finding that the public interest requires eventual inclusion of the roads in a major system and in the fact that the protective conditions are interim only is the purpose of keeping the roads intact so their inclusion on equitable terms will be possible. There is substantial controversy, however, over the validity and effectiveness of each of the proposed conditions. The Commission has, in fact, reopened the Penn-Central proceeding for hearings to determine in what respects the conditions originally imposed should be modified and whether or not a capital loss indemnity should be imposed. 328 I.C.C., at 328. Modifications are to be applied retroactively, and Penn-Central is to have judicial review only on the capital indemnity issue. But despite these assurances, the three carriers and others non-protected carriers attack the conditions on several grounds, at least some of which cannot lightly be dismissed.
83
There are three types of conditions involved: (1) traffic conditions; (2) indemnity for loss of revenue; and (3) indemnity for capital loss. The traffic conditions are expressly devised to prevent Penn-Central from increasing its competition with the protected roads. In brief, they restrain Penn-Central from taking any action or engaging in any practice 'which would divert or tend to divert traffic * * *,' either directly or indirectly, from the protected roads. 327 I.C.C., at 561. While the ICC's authority to impose this restriction is unquestioned, great controversy exists concerning its intended scope. The three roads, relying upon the ICC's expressed intention to prevent 'any' loss of revenue 'as a direct result' of consummation, 327 I.C.C., at 532, claim that Penn-Central may take no step to improve service on routes in which they participate, even if the improvement is designed, for example, to meet truck competition. They also claim that the conditions should be applied retroactively to April 27, 1966, when the ICC released its original decision, in order to eliminate the possibility that Penn and Central could defeat the purpose of the conditions by continuing competitive practices begun between April 27 and consummation or by instituting changes during the intervening period. Penn and Central, on the other hand, take a far more limited view of the conditions' scope, despite their assurances before the District Court that the conditions prevent even solicitation of shippers.17 Their position at the reopened proceeding, based upon the Commission's reference to maintaining the preconsummation 'status quo,' 327 I.C.C., at 532, is that they should be free to offer any amount or quality of service after merger which they could perform individually or jointly before merger. This interpretation apparently would leave Penn-Central free, for example, to reduce rates on any route which was formerly all-Central or all-Penn, or on any presently existing joint route of Penn and Central, or to pool their cars for better flexibility, even though these actions might result in diversion of traffic from a protected line. See generally Brief for the United States on Appendix G Conditions, F.D. Nos. 21989 and 21990, Jan. 16, 1967, pp. 8—12. Whether the traffic conditions will succeed in preventing the deterioration of the three roads to the point at which equitable terms may be unattainable is a question of some difficulty. Traffic conditions are limited in their usefulness because they cannot eliminate entirely the more general benefits often obtainable through consolidation (such as unified management, better schedules, simplified tracing of cars, less switching and inspection of cars, and greater advertising resources), and because they cannot be operative upon the shipper. Since the ICC deemed the traffic conditions imposed essential to protect the roads, and since even the most rigid traffic conditions are of limited value, the question whether the view of the three roads or that of Penn and Central should be adopted is as important as it is difficult, and its unsettled state contributes to the doubt as to inclusion.
84
The indemnity for loss of revenue, now being reconsidered by the ICC, is to be payable to any of the three threatened lines in the event that it fails to realize, during the indemnity period, gross revenues in the same proportion to the combined gross revenues of Penn-Central and the protected line as the indemnity formula fixes for the protected line in the base period. The indemnity is obviously designed to make up for losses of traffic to Penn-Central despite the traffic conditions. The three roads have argued that the indemnity should be modified to increase payments, but take the position that, even as modified, the conditions would be inadequate. The nonprotected roads claim the indemnity condition is unlawful. Quite clearly, the indemnity would provide a financial interest to the protected lines to divert to Penn-Central traffic they would normally handle in connection with other carriers, such as N & W and C & O, in order to increase Penn-Central's proportion of their combined revenues and thereby to increase their own indemnities. Correspondingly it would provide an interest to Penn-Central to divert traffic to the protected lines to increase their proportion of combined revenues and thereby to reduce or avoid indemnity payments. Whether this community of interest is unlawful or would otherwise be against the public interest has not definitively been settled, since the ICC is still in the process of reconsidering its position. It is relevant here, however, simply to note that the indemnity, viewed by the ICC as essential to interim protection, is meaningfully challenged both as unlawful and as inadequate, and therefore that it too cannot be relied upon to eliminate the doubt concerning whether the protected roads may be damaged during the interim to an extent that would make equitable terms unattainable.
85
The indemnity for capital loss is advanced by the three roads as essential if the merger is to be consummated prior to inclusion. It is directly related to the problem of assuring that equitable terms for inclusion in N & W can later be reached. Commissioner Webb's definition makes clear the proposed condition's purpose:
86
'The term 'capital loss,' as used by N & W, EL, D & H and B & M in their petitions for reconsideration in the Penn-Central case, refers to losses of EL, D & H, and B & M traffic to Penn-Central to the extent not offset by traffic gains attributable to their inclusion in the N & W system, with the net annual loss of income, if any, capitalized at an appropriate rate.' N & W Inclusion Report, at 25, n. 21.
87
In effect, this condition would guarantee the three roads the difference between what they would lose to Penn-Central and what they would gain by inclusion in N & W. Unquestionably, its adoption would facilitate inclusion, but the fact is that it has not been adopted, and its adoption in any form would be subject to judicial review at the request of Penn and Central. Moreover, the usefulness of the capital indemnity approach has been vigorously challenged by C & O and N & W. They assert that the indemnity will not succeed in keeping the three roads in viable condition, since traffic, once diverted, is likely to stay diverted. The ICC should not, they claim, rely upon an indemnity provision which fails to accomplish the continuation of service it has found to be so essential. C & O—B & O Brief on Capital Loss Indemnification, F.D. No. 21989, November 28, 1966. In this connection they raise once again the specter of an N & W—C & O merger, arguing that their proposal is the only acceptable solution to the inclusion problem.
88
There appears to be some merit in the arguments that some sort of capital indemnity is necessary to assure the attainability of equitable terms for inclusion. While Commissioner Webb left to the ICC in the Penn-Central case the issue whether capital loss indemnification should be paid, he did conclude that inclusion of the three roads 'in the system chosen by the Commission in the furtherance of national transportation objectives should not be on terms which reflect any diminution of capital value attributable to the traffic diversion impact of the other system. In other words, the petitioners should not be penalized for anticipating the Commissioner's desire to preserve rail competition in the territory they serve.' N & W Inclusion Report, at 28. His valuation of the smaller roads, therefore, did not reflect the diminution of value anticipated to be caused by Penn-Central, and his apparent conviction was that equitable terms could not be worked out on any other basis, unless a capital indemnity were granted. See id., at 43.18 In light of these conclusions it can readily be seen that the unresolved issue of capital indemnity is important, and therefore that the objections to it create uncertainty on this score as well as over whether equitable terms are possible.
89
What the ICC has done here by deferring inclusion of the three roads is to defer confronting numerous difficult and important issues which cast substantial doubt upon whether the roads can be included in any major system contemplated for the purpose consistent with the public interest and on equitable terms. In the process it has approved an irreversible consolidation which it found to be in the public interest only upon the premise that the affected roads would be included in a major system. By proceeding in this manner, the ICC has in my view failed to fulfill its fundamental duty to determine whether consolidations are in the public interest on the basis of all the relevant facts. The problems created by a required inclusion obviously are relevant to the question whether the proposal which makes their inclusion necessary is in the public interest. And where as here, the many problems created are serious and far-reaching, the Commission must consider them before arriving at and implementing with finality its ultimate conclusion.
90
While I consider it the ICC's responsibility to weigh the feasibility and effects of an inclusion it deems required by the public interest, I recognize the importance of leaving great flexibility with the agency to deal with emergency situations in order to avoid serious damage to the national transportation system. But it is clear there is no pressing need here which could justify the ICC's action. Commission counsel represent in this Court that the ICC has found 'that the merger would result in substantially improved service for the shipping public and in annual savings of at least $80 million for the merged company * * *.' Brief of the I.C.C., p. 52. Improved service and economies are commonly the claimed results of rail consolidations, and proportionately the improvements and savings anticipated in this case are no more substantial than in many other mergers. Moreover, the anticipated $80,000,000 annual saving is to be reached about eight years after consummation, 327 I.C.C., at 501, and even this estimate does not take into account the sharp curtailment that would result from the interim protective conditions which were formulated with the avowed intention of maintaining the preconsummation status quo, see 327 I.C.C., at 532.19 The ICC stressed the financial condition of Penn and Central, including their 'persistently low rates of return' and their need for improved equipment, as a ground for authorizing immediate consummation, 327 I.C.C., at 501—502, but once again, this is a stock reason for merger, usually alleged by at least one party. The fact that a merger will provide financial assistance militates in favor of approval, but it is only one of the many important factors which must be considered, and in the case of Penn and Central this point has lost much of its force, since both have had substantial and consistent increases in their earnings in recent years. See Brief of the I.C.C., p. 55. While this does not necessarily lessen the longterm need for consolidation, it does show there is little need for immediate consummation on this ground.
91
The argument that the survival of the New Haven depends upon undelayed consummation is not pressed here with the same intensity with which it was embraced at the agency level. See 328 I.C.C., at 312. Judge Friendly's opinion put this matter in proper perspective by pointing out that it is 'unrealistic to suppose that inclusion of NH in the Transportation Company can be accomplished before conclusion of the Commission's reconsideration in this case * * *.' 259 F.Supp., at 973. The tenable argument here is that, the longer consummation is delayed, the more difficult will become the task of NH's Trustees in reorganizing the company, and the more possible it becomes due to some unanticipated change of circumstance that the merger may fall through entirely. While every effort consistent with the public interest should be made to protect the invaluable services the NH performs, the difficulties anticipated are largely speculative. If this merger is to benefit its proponents as greatly as they contend, it is no fragile package. And although no unnecessary risks should be taken even with a plan so enthusiastically supported and elaborately designed, a proper concern for the public interest and for the protection of the roads threatened by this merger should have led the ICC to delay consummation.
92
The projected effects of Penn-Central on E—L, D & H and B & M are anything but speculative. Those roads unquestionably will be destroyed unless included in a major system, and the fact that inclusion somewhere is implicitly assured us may be further cause for concern, in light of the contemplated alternatives and of the difficulty and consequences involved in the adoption of either of them. If the ICC should ever be allowed to depart from its statutory duty to consider all the relevant factors before determining the public interest, it certainly should not be upon the mere recitation of factors favorable to the plan's adoption and of speculative dangers and the inconveniences of private parties. The reason Congress has ordered that all factors including the effects of inclusion or failure to include, be considered, is to avoid danger to the public interest caused by precipitate action, and there is more than ample evidence of danger to the public interest in this case to warrant unhesitating enforcement of Congress' directive.
III.
93
The ICC argues that to delay the merger until the three roads are assured inclusion would amount to a consolidation of the proceedings in Penn-Central with the N & W inclusion proceeding, at least for decisional purposes, and that this would constitute a return to the 'master plan' approach for railroad unification 'unsuccessfully tried under the Transportation Act of 1920, and would probably preclude the consummation of any major rail unification, regardless of its merits.' Brief of the ICC, pp. 43 44. The Commission points out that it 'consistently has refused to consolidate the Eastern railroad merger or control proceedings,' id., at 48, and that the Government's position here is the same as its unsuccessful contentions for consolidation in the C & O—B & O and N & W—Nickel Plate proceedings.
94
It is difficult to understand exactly what the ICC is arguing. Certainly no one contends that the Commission is required, as it was by the Act of 1920, to 'prepare and adopt a plan for the consolidation of the railway properties of the continental United States into a limited number of systems.' 41 Stat. 481. Nor is it argued that the ICC is required to draw up regional plans for consolidation.
95
On the other hand, it can hardly be said that the ICC is powerless to consolidate proceedings, or for that matter to plan or to take any other reasonable step to enable itself to perform its statutory obligation as custodian for the development in the public interest of a national transportation system; that the ICC is no longer told to plan does not mean it is unable to do so when planning is necessary to fulfill its duties. The ICC is told in the 1940 Act to 'conduct its proceedings under any provision of law in such manner as will best conduce to the proper dispatch of business and to the ends of justice,' 49 U.S.C. § 17(3), and it has in fact recognized that it possesses 'the power in appropriate circumstances either to consolidate proceedings in which the issues are similar or closely related, or to postpone a particular decision when so required by the public interest.' C & O—Control, supra, 317 I.C.C., at 266. But apart from this explicit power, it is clear from a close appraisal of the 1920 and 1940 Acts that the ICC's responsibilities are far broader now and, therefore, that it would be anomalous to find in a comparison of these two pieces of legislation a basis for the sweeping contention that the Commission can no longer plan.
96
The 1920 and 1940 Acts are similar in several respects. Under both, applications for consolidation are initiated by the parties and approved if found to be in the public interest, and under neither may a consolidation be compelled. The salient difference is that under the 1920 Act the ICC was required to draw up a plan for all the Nation's railroad properties, and was called upon to judge the proposals for railroad consolidation filed with it by private parties in terms of the master plan it had created. Proposals that advanced the plan's fulfillment stood a far greater chance of approval than those that did not and only in this sense could it be said that parties were unable to initiate plans of their own choice. While the planning function is broad procedurally, however, it was designed to serve only limited ends. Congress' concern was 'largely with financial problems,' its chief aim being to overcome the problem which arose from the fact that 'rates which would provide reasonable returns for strong systems would not permit weak lines to survive, and if rates were raised to take care of the weak roads, the more prosperous roads would enjoy excessive returns.' Leonard, Railroad Consolidation Under the Transportation Act of 1920, at 57, 59 (1946). The decision to encourage consolidation into a limited number of systems was of course designed to establish a stronger railroad industry, but it 'was not grounded on the premise that economies from operation and the avoidance of competitive wastes would be the principal means of insuring an efficient and economic railway system * * *, but rather, on the conclusion that the financial prosperity of rail carriers would be promoted and effectuated if the weak and the strong railroads which exist side by side in the same territory were to be consolidated into balanced railroad systems with respect to earning power.' S.Rep. No. 445, Report on the National Transportation Policy by the Special Study Group of the Committee on Commerce, 87th Cong., 1st Sess., p. 234 (1961). In fact, the Act specifically directed the ICC, in drawing up the plan, to preserve competition as fully as possible and to maintain existing routes and channels of trade wherever practicable. In other words, although the ICC was directed to draw up a national plan against which it was to judge whether applications for consolidation were in the public interest, the judgment was to be made rather mechanically, and the plan itself was to be designed to achieve limited, primarily financial goals.
97
In contrast, as we have seen, the purposes sought through consolidation under the 1940 Act are wide-ranging, and the public interest includes consideration of all factors relating to the National Transportation Policy. Financial manipulation was deemed inadequate, and the ICC was ordered to weigh numerous, often conflicting, considerations. In light of this 'enlarging of the factors or values which an agency must take into consideration,' Reich, The Law of the Planned Society, 75 Yale L.J. 1227, 1248 (1966), it seems incongruous to assert that the change from the 1920 Act approach to that of the 1940 Act signifies a change from planning to strictly ad hoc adjudication.
98
It should be clear, in fact, from a full consideration of the ICC's powers, and of the consequences of failing to use those powers, that consolidation and the use of other procedural techniques is not only within the agency's authority, but is often essential if it is to fulfill its function as guardian of the public interest. Section 17(3), referred to above, appears sufficient to authorize the Commission to adopt procedures calculated to develop complete records with respect to the public interest in particular merger proceedings, and to coordinate separate merger proceedings when necessary to secure the best possible results. Tucker & O'Brien, The Public Interest in Railroad Mergers, 42 B.U.L.Rev. 160, 184 (1962). Within the context of a case-by-case approach, the Commission is authorized under § 16(11) to 'employ such attorneys as it finds necessary * * * for proper representation of the public interests in investigations made by it or cases or proceedings pending before it, whether at the commission's own instance or upon complaint * * *,' and it has done so.20 It may and often has called upon its staff to develop information in pending cases. In the N & W-Nickel Plate proceeding, for example, it called upon its Bureau of Inquiry and Compliance to study and report on which railroads would be affected by the merger. It possesses, with appropriate safeguards, broad powers of official notice,21 and in recent merger cases it has frequently referred to facts and arguments in other, related merger cases. Moreover, like most other agencies assigned similar functions, it has broad investigative power, which may be used in the context of adjudication or simply to provide background. Section 13(2) confers 'full authority and power at any time to institute an inquiry, on its own motion, in any case and as to any matter or thing * * * concerning which any question may arise under any of the provisions of this chapter, or relating to the enforcement of any of the provisions of this chapter,' which includes § 5. The ICC has resorted to various forms of investigations and studies to enable itself to perform its obligations. See generally S.Doc.No.10, Monograph of the Attorney General's Committee on Administrative Procedure, Part 11: Interstate Commerce Commission, 77th Cong., 1st Sess., pp. 93—96 (1941). Particularly noteworthy is the Staff Study on Railroad Consolidations and the Public Interest, by the Commission's Bureau of Transport Economics and Statistics, which contains an analysis of the Commission's decisions in railroad consolidation cases. Reprinted as Exhibit 11, Hearings before the Subcommittee on Antitrust and Monopoly on S. 3097, 87th Cong., 2d Sess., pt. 2 (1962).
99
Finally, although the ICC does not promulgate general plans for consolidation, it has the power under § 5(2)(b) to approve consolidations 'subject to such terms and conditions and such modifications as it shall find to be just and reasonable * * *.' This authority encompasses the power under § 5(2)(d) to make inclusion of a railroad a prerequisite to approval of a merger, and it does not depend upon the request of any private party involved. It has been broadly construed to enable the ICC to implement previously found conditions and to cope with changed circumstances, e.g., United States v. Rock Island Motor Transit Co., 340 U.S. 419, 71 S.Ct. 382, 95 L.Ed. 391; American Trucking Ass'ns v. United States, 355 U.S. 141, 78 S.Ct. 165, 2 L.Ed.2d 158; American Trucking Ass'ns v. Frisco Transp. Co., 358 U.S. 133, 79 S.Ct. 170, 3 L.Ed.2d 172, and the Commission has applied this power, when it has seen fit to do so, with great liberality. It has even gone to the point of conditioning its approval of applications to consolidate upon actions to be taken by railroads not even party to the proceeding.22 In sum, the Commission's practice certainly is not consistent with its assertion here that its 'only 'planning' power' under the 1940 Act is to include railroads in the region. Brief of the ICC, p. 46.
100
The ICC is pre-eminently an agency 'directly and immediately concerned with the outcome of virtually all proceedings conducted before it. It is not intended to be a passive arbiter but the 'guardian of the general public interest,' with a duty to see that this interest is at all times effectively protected.' H.R.Doc.No.678, Practices and Procedures of Governmental Control of Transportation, 78th Cong., 2d Sess., p. 53 (1944); see Southern Class Rate Investigation, 100 I.C.C. 513, 603. It is empowered to investigate and gather evidence beyond that presented by the parties where exercise of that power will advance the determination of what best serves the public interest.23 To the same end, the agency has wide latitude in fashioning procedures, and a broad power to condition its approval of proposals. In other words, the ICC is not the prisoner of the parties' submissions.24 Rather, the agency's duty is to weigh alternatives and make its choice according to its judgment how best to achieve and advance the goals of the National Transportation Policy.25
101
I am therefore not reassured by the ICC's representation that it has 'consistently' refused to consolidate the eastern railroad merger proceedings for any purpose or to any degree. The ICC's prior refusals to consolidate are entirely distinguishable, since none of them entailed the risk under the Commission's own findings that a railroad performing essential public service could be destroyed.26 But more generally, while consolidated consideration provides no simple answer to the ICC's problems, see generally Shapiro, The Choice of Rule-making or Adjudication in the Development of Administrative Policy, 78 Harv.L.Rev. 921 (1965), the very complexity of its task suggests that consolidated consideration may be a useful procedural device, short of an investigation or prearranged plan, for offsetting at least in part the disadvantages inherent in the isolated case-by-case approach, both in formulating and applying policy.
102
Although a case-by-case adjudication may offer advantages in flexibility and continual exposure to concrete situations, 'the disadvantages of developing policy through a sequence of limited cases are both numerous and impressive.' H.R.Doc.No.678, supra, p. 81. A significant disadvantage is that individual proceedings 'seldom if ever produce sufficiently comprehensive records for the adequate solution of questions of major importance.' Id., at 82. Obviously, without all the relevant facts, the chance of a satisfactory disposition is diminished. Although the ICC has tools to assemble complete factual records, it employed virtually none of them in these highly interrelated proceedings,27 including the power to consolidate the proceedings on common issues. Rather, the cases have been rigidly segregated, leading the ICC to resort to extraordinary interim conditions instead of resolving definitively the fate of the three threatened roads. This has had the undesirable effect of enabling each of the major carriers to control the basis for judgment by deciding what evidence to offer or withhold, depending on which course best served its own interest. Evidence of competitive impact has been withheld in one proceeding only to appear at later proceedings in the form of evidence that the company affected must be permitted to merge with another company to protect itself, or that the anticompetitive impact of the later merger will be limited in light of the increased strength and ability to compete of the companies already allowed to merge.28 The carriers have been well aware of the opportunity the Commission's practice provides them, as is illustrated by the statement of the Chairman of the Board of Pennsylvania that 'If the C. & O.—B. & O. is approved, that is going to help the Nickel-Plate case and if that is approved, it is going to help our case, going to go right around the circle.' Hearings, supra, n. 24, at 397.
103
It is not that the ICC has been unaware of what has been going on. Commissioner Tucker, in the first of the recent trilogy, pointed out that the 'failure of the large eastern railroads to present evidence against consolidation is * * * a natural consequence of their own self-interest which dictates a reciprocity of silence.' C & O—Control, supra, 317 I.C.C., at 326. The fact is that, despite some lip-service to the contrary,29 the Commission has proceeded under the assumption that competitive impact is to be evaluated with the position of the railroads affected very much in mind. Thus the Examiners in this case, when called upon by the Justice Department to weigh the possibly serious adverse effect of Penn-Central upon N & W, C & O—B & O and others, pointed out that the roads allegedly affected had introduced no evidence of adverse effect. They added, realistically and revealingly:
104
'We are fully cognizant of the fact that in the evolving merger picture in the northeast section of the nation, the carriers involved may well have refrained from participation in these proceedings or influenced their subsidiaries not to participate on the grounds that they did not desire to upset their own merger program. Such action, however, infers a managerial decision by each that the anticipated benefits from its individual merger program will outweigh any injury or harm which may result from other merger plans.' Penn-Central Report, at 304.30
105
The approach which this statement and many of the Commission's rulings and practices reveal is based upon a series of unacceptable assumptions. It is simply unrealistic, for example, to believe that all the railroads will always be correct in their estimate even of their own best interests. When a railroad has incorrectly estimated its self-interest, moreover, its reaction may well upset the private agreements or understandings upon which the Commission has in effect allowed its findings to rest. Thus when E—L realized that Penn-Central might be approved before it had secured voluntary inclusion in N & W, it abandoned its agreement with N & W, upon which the Commission relied, and petitioner for inclusion in Penn-Central, thereby setting into motion the controversy in this case. See 324 I.C.C., at 61—62 (representation of counsel quoted in dissenting opinion). Most recently, C & O—B & O, and their family lines, sought to reopen Penn-Central to introduce evidence of traffic diversion. The Commission observed, in refusing to hear the evidence, that the Examiners' findings that the net effect of the merger would not be detrimental to these carriers or to their ability to provide adequate service 'are as much based on a failure of the several petitioners to come forward with assertions or proof of injurious traffic diversion as on any affirmative showing of no effect.' 328 I.C.C., at 317. For the first time revealing indignation toward a practice long condoned, the ICC stated that the 'measured and deliberate silence' of the railroads at the hearing supports 'the inference that they saw more to be gained thereby in their own system-building aspirations than would result from forceful opposition likely to arouse counter opposition. Now, with the N & W-Nickel Plate merger and the C & O—B & O control transactions safely beyond challenge, * * * petitioners have nothing to lose and perhaps much to gain by breaking their silence.' Ibid.
106
Ultimately, however, the reason reliance upon the estimates of railroads of their own best interests is objectionable is simply that the best interests of the railroads are not necessarily consistent with the public interest, and it is the latter which the Commission is directed to advance. It may be, as Commissioner Tucker stated early in this 'gigantic game of dominoes' the Commission has been playing, 327 I.C.C., at 550, 'that each carrier has the unalienable private right to abdicate its prerogatives to oppose any consolidation. It is the primary responsibility of the Commission, however, to preserve the development of a sound transportation system in the public interest, and where an application may offer the possibilities of public injury, the Commission must strive to obtain a record which comprehensively covers public considerations.' C & O—Control, 317 I.C.C., at 326. See generally, The Railroad Merger Problem, Report of the Subcommittee on Antitrust and Monopoly of the Senate Judiciary Committee, 88th Cong., 1st Sess. (Comm.Print 1963). The commendable industrial statesmanship demonstrated by the railroads on many occasions in these recent proceedings only serves, because of the cohesion this demonstrates, see Jaffe, op. cit. supra, p. 405, at 11—13, to aggravate the danger that 'grows out of the tendency of these giant corporations to compromise their own differences at the expense of the unorganized public,' 2 Davis, op. cit. supra, n. 21, at 378. The regulatory agency must be the bulwark against such compromise. It is 'a requisite for administrative viability,'31 that '(t)he outlook of the Commission and its powers must be greater than the interest of the railroads or of that which may affect those interests.' I.C.C. v. Chicago, R.I. & P.R. Co., 218 U.S. 88, 103, 30 S.Ct. 651, 656, 54 L.Ed. 946. See Scenic Hudson Preservation Conference v. F.P.C., 354 F.2d 608 (C.A.2d Cir.), cert. denied Consolidated Edison Co. of New York Inc. v. Scenic Hudson Preservation Conference, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540.
107
This merger may well be in the public interest, as well as in the interests of the railroads involved. But the Commission has failed to go about deciding this question in a manner designed to accomplish its statutory responsibility. 'Deference to administrative decisionmaking assumes procedures which assure a fair hearing to the affected interests * * *.' Jaffe, op. cit. supra, at 566. 'As soon as the search for the public interest, even seemingly, becomes a secondary consideration in cases involving more than the adjudication of private rights no matter how conclusive the exigencies of the situation appear, the independent Commission is doomed to impotency as an instrument of government.' C & O—Control, 317 I.C.C., at 297 (dissenting opinion).32
108
Mr. Justice DOUGLAS, dissenting in part.
109
While I agree with the Court that the terms of the conditions which the Commission proposes to attach to this merger should be known before we approve it and while I join the opinion of the Court, I would go much further. There are underlying issues brought to us by a few of the parties which we should face. Those issues present not the merits of the merger but the adequacy of the Commission's findings. It is, of course, not for us to determine whether the merger is desirable or undesirable. We do not sit as a planning agency. Nor are we entrusted with the task of making the large policy decisions that underlie approval or disapproval of this new concentration of transportation power and wealth. Our task is one of review within the narrow confines of § 5(2)(c) of the Act by which Congress has provided standards for the Commission. Our sole task is to determine whether the Commission has satisfied by its findings the standards provided by Congress. I do not think it has.
110
A word should be said as to the background of this irresponsible ICC decision. The Commission early indi
APPENDIX A.
111
THREE SYSTEM EASTERN DISTRICT, WITH SMALLER LINES INCLUDED IN PENN-CENTRAL
APPENDIX B.
112
TWO SYSTEM EASTERN DISTRICT, SHOWING N&W MERGED INTO C&O-B&O cated its preference for a consolidation of most eastern rail carriers into three systems: (1) C & O—B & O; (2) N & W—Nickel Plate; (3) Penn-Central. The initiative was left to the carriers. The Commission never sought, proposed, or examined into a master plan. On June 27, 1960, it indeed denied a petition of New York Central requesting the Commission 'to embark upon a general investigation of the unfication, consolidations, and mergers of the rail carriers within Central Freight and Trunk Line Association territories' with a view to formulating 'principles by which both (the Commission) and the carriers shall be governed in Section 5 cases in the future.'1 The making of mergers was based upon 'attainable' alliances rather than upon 'any truly balanced competitive basis.'2 Today's predicament was prophetically forecast only a few years ago:3
113
'Although superior lineups may exist, it is suggested that it is better to have 'attainable mergers' (approved by the big financial interests) rather than none at all. However, the helter-skelter method by which these mergers have become 'attainable' for decision has developed into a complicated problem for the Commission, particularly in the East. The eastern story begins with the Commission's approval of the merger between the Norfolk & Western and the Virginian in 1958, two successful and competitive coal roads. By that merger, the New York Central lost its access to the Pocahontas coal territory and it lost a friendly connection which more or less had always been considered a Central road. Thus the Virginian, apparently not 'attainable' by the Central was now placed in a position to enhance the competitive power of the Pennsylvania (which controlled the Norfolk & Western). This merger, plus the announced intention of the Chesapeake & Ohio to acquire control of the Baltimore & Ohio, sharpened the Central's interest in its competitive survival against the massive Pennsylvania system which was well entrenched in the rich Pocahontas coalfields and in the Tidewater ports. The Central tried to outpoint the C & O in getting control of the B & O, but it lost out, largely because it couldn't convince Swiss bankers of any financial advantage in the merger. Then the Central negotiated with the C & O for a three-way merger between the respective companies, which the Central's president Perlman believed would provide a balanced, competitive system with the Pennsylvania. At the same time, Mr. Perlman was stating that a B & O—C & O union would seriously hurt the Central. In the meantime, the Norfolk & Western had filed for merger with the Nickel Plate, for a leasing of the Wabash, and for the purchase of the Pennsylvania's Sandusky line. This was apparently the last straw for the Central. It has been outmaneuvered, and thus did the only thing left it could do—agree to merge with the Pennsylvania. That merger was 'attainable,' and is now the crucial determinant of most reorganizations.' The Commission denied requests to consolidate the eastern consolidation proceedings for decision. See Chesapeake & Ohio R. Co.—Control—Baltimore & Ohio R. Co., 317 I.C.C. 261, 266; Norfolk & Western R. Co. and New York, Chicago & St. Louis R. Co.—Merger, 324 I.C.C. 1, 19.
114
The Commission's piecemeal, hands-off approach to the merger problem is, however, not commanded by the Transportation Act of 1940. There is no evidence that Congress intended to remove entirely the planning and policy function of the Commission with respect to rail consolidations. Indeed, such a position ignores the mandate of the preamble to the Act of 1940, which provides that its provisions shall be administered with a view to 'promote * * * adequate, economical, and efficient service and foster sound economic conditions in transportation and among the several carriers; * * * all to the end of developing, coordinating, and preserving a national transportation system'. As my Brother BRENNAN notes, the 1940 Act significantly broadened the Commission's responsibility; it would be 'incongruous to assert that the change from the 1920 Act approach to that of the 1940 Act signifies a change from planning to strictly ad hoc adjudication.' Ante, p. 427. The Commission has ample authority to insure a co-ordinated approach to railroad consolidations; it is not straitjacketed by a disjointed case-by-case approach. Yet the contrary attitude of the Commission is evident in this case. The Department of Justice argued that the eastern district should be served by four systems: Penn, Central, C & O—B & O, and N & W into which E—L should be merged. If it was shown that the traffic could not support four systems, the Department proposed that Penn should be consolidated with N & W and Central with C & O—B & O. The Commission's answer to this was that it could not compel the alignments suggested by the Department of Justice and was limited to alignments suggested by the carriers. This suggests, as my Brother BRENNAN indicates, a subservience of the Commission to the railroads' estimates, the railroads' proposals, the railroads' evaluations, the railroads' prophecies of the future.
115
The C & O—B & O merger was approved, 317 I.C.C. 261, sustained 221 F.Supp. 19, aff'd per curiam 375 U.S. 216, 84 S.Ct. 341, 11 L.Ed.2d 270. The N & W-Nickel Plate merger was approved, 324 I.C.C. 1; but its legality was not litigated. This is the first time the question of legality has been presented to this Court after full argument.
116
Now the 'panic button' is being pushed here; and we in turn are being asked to act hurriedly and become the final instrument for foisting this new cartel on the country. Some cases generate great pressures on the Court. Mr. Justice Holmes once remarked that those cases make 'bad law.' Northern Securities Co. v. United States, 193 U.S. 197, 400, 24 S.Ct. 436, 468, 48 L.Ed. 679. 'For great cases are called great * * * because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.' Id., at 400—401. We should, I submit, decline the present invitation.
117
We are here concerned with § 5(2)(c) of the Act which governs railroad mergers and provides:
118
'In passing upon any proposed transaction under the provisions of this paragraph, the Commission shall give weight to the following considerations, among others: (1) The effect of the proposed transaction upon adequate transportation service to the public; (2) the effect upon the public interest of the inclusion, or failure to include, other railroads in the territory involved in the proposed transaction; (3) the total fixed charges resulting from the proposed transaction; and (4) the interest of the carrier employees affected.'
119
The four items listed are not exclusive but only exemplary for they are only 'considerations, among others.'
120
The Commission's decision omits findings on many critical questions, all of which are, I think, relevant if the statutory ingredients of 'the public interest' are to be evaluated under § 5(2)(c).
121
Mr. Justice Brandeis, writing for the Court in United States v. Baltimore & O.R. Co., 293 U.S. 454, 464, 55 S.Ct. 268, 272, 79 L.Ed. 587, emphasized that basic findings cannot be 'left entirely to inference.' Mr. Justice Cardozo emphasized the point again in United States v. Chicago, M., St. & P.R. Co., 294 U.S. 499, 511, 55 S.Ct. 462, 467, 79 L.Ed. 1023, saying, 'We must know what a decision means before the duty becomes ours to say whether it is right or wrong.' More recently we emphasized the necessity of findings to responsible judicial review:
122
'Congress has also provided for judicial review as an additional assurance that its policies be executed. That review certainly entails an inquiry as to whether the Commission has employed those statutory standards. If that inquiry is halted at the threshold by reason of the fact that it is impossible to say whether or not those standards have been applied, then that review has indeed become a perfunctory process. If, as seems likely here, an erroneous statutory construction lies hidden in vague findings, then statutory rights will be whittled away. An insistence upon the findings which Congress has made basic and essential to the Commission's action is no intrusion into the administrative domain. It is no more and no less than an insistence upon the observance of those standards which Congress has made 'prerequisite to the operation of its statutory command.' Opp Cotton Mills, Inc. v. Administrator, 312 U.S.
123
126, 144, 657, 61 S.Ct. 524, 532, 85 L.Ed. 624. Hence that requirement is not a mere formal one. Only when the statutory standards have been applied can the question be reached as to whether the findings are supported by evidence.' United States v. Carolina Freight Carriers Corp., 315 U.S. 475, 489, 62 S.Ct. 722, 730, 86 L.Ed. 971.
124
Many crucial issues, necessary for evaluation by the Commission, are not even exposed in this record, let alone appraised. The absence of these findings makes judicial review impossible.
125
What is the nature of this cartel? What financial interests control it? Only one of the largest stockholders in the applicants is known. The remaining largest stockholders are brokerage houses and Swiss banks holding nominal title for their customers. The beneficial owners are unknown, and apparently of no concern to the Commission. The Commission was specifically requested to determine who are the beneficial owners of the stock and who would control the merged company. The Commission refused to accede to the request. Nor did the Commission consider it relevant that, through interlocking directorates, the proposed directors of the merged company are directors of and interested in corporations which deal with the railroads or that the control of railroads is steadily being concentrated in the hands of banks, insurance companies, and other large financial interests.
126
What effect on other roads within the area served by these carriers will result from the merger? What effect on rail competition outside the area will result? What will be the effect on the towns served by the two roads? Will some dry up? Will the community dislocations be offset by tangible gains?
127
None of these questions is answered by the Commission. Yet § 5(2)(c) of the Act, which governs railroad mergers, demands findings on the various ingredients of the 'public interest.'
128
Concededly, community dislocations are relevant to the 'public interest.' For the Commission considered them crucial in concluding that this merger would not be approved unless the New Haven were included.4 What is the need of the New Haven? Its need is mirrored in the economic well-being of the New England States. With a rundown carrier, how can they attract new factories? Without new factories how can their employment needs be met?
129
If these basic community needs are relevant in the case of the New Haven, why are they not relevant when we turn to the needs of the communities served by the other roads which are about to be merged? We are told that the three mergers mentioned, including the present one, will result in many communities being reduced 'from main line to secondary line status'—a condition 'particularly true with respect to the merger between the Pennsylvania and New York Central when most of the New York to western gateway traffic will be routed over the Central's northern route.'5
130
The healthy small towns stretched along these railroads may be more important in terms of the 'public interest' than the profit and loss statements of the carriers, or the market prices of their securities, or the power of the small oligarchy that will sit at the head of this behemoth that will be turned loose. Rail mergers are only one form of regional planning. And whatever the attitude of the Commission may have been, it cannot in light of § 5(2)(c) delegate that duty to the carriers or become their rubber stamp or fail to relate to the standard of the 'public interest' the impact of the merger on the various communities served by these lines.
131
The Commission in its report gave practically its entire consideration to two aspects of the merger. The first dealt with the financial needs of the two carriers and on this the Commission concluded that the new company would have the financial strength and power and resources to deal with all the difficult contingencies in the years ahead. The second main consideration related to the problem of competition within the region served by the two roads. The Commission indicated that, although there will be less competition, the improved transportation service was a justified price to pay for that loss.6 Yet one who reads the report and reflects on these two considerations and their treatment by the Commission, cannot help but wonder why they would not justify any conceivable merger—all the southern roads and eastern roads—all the eastern roads and the western roads—or the western and southern and southwestern roads so that we would end up with one or two rail transportation systems. I put the matter that way because the arguments of the Commission are so generalized and so obviously mere rationalizations that they could easily apply to any merger; for the theory of all promoters of mergers, as Mr. Justice Brandeis exposed many years ago,7 is to justify mergers by increased financial power and improved service.
132
The size and power of the new company will be awesome, and some say excessive. It has been estimated that the new company will account for 51% of the assets, 50% of the trackage, 52% of the operating revenues, 75% of the revenue passenger miles, and almost 53% of the railroad employees in the eastern area. The combine will be almost twice as large as the next system and three times as large as the third system. Some experts have concluded that the new company will have a dominant position with respect to the negotiation of rates and its relations with the public and government, to the detriment of other railroads and other modes of competition. It will have a vast amount of power over the decisions of the Association of American Railroads with respect to rail transportation policy. Its power will extend well beyond the eastern district. The Railroad Merger Problem, Report of the Subcommittee on Antitrust and Monopoly of the Senate Judiciary Committee, 88th Cong., 1st Sess., 8—9 (Comm. Print 1963).
133
The routes of the applicants parallel each other through their respective systems and have many common points. They serve many communities and areas in common, and in several one or the other is the sole road; in others the applicants alone compete. The Commission realizes that the merger will eliminate the existing choice for many shippers and communities. It downgrades the severity of the impairment of competition. And the Examiners' Report frankly takes the position that interrailroad competition is not very important because the industry is characterized by oligopoly, rendering price competition nonexistent and service competition unimportant.8 The Commission thinks that intermodal competition will prevent the new company from misusing its tremendous size and power,9 even though it recognizes that the railroads have an inherent advantage in transportation of bulk and long-haul traffic. The Examiners' Report and the Commission's opinion suggest that competition among railroads, rather than being the norm, is to be avoided because it is 'inefficient.' Comparing the Commission's handling of the competitive effects of this merger with its treatment of the competitive effects of the proposed Great Northern Railway Company-Northern Pacific Railway merger gives one the impression that the cases were decided by different regulatory bodies rather than the same commission. In the Great Northern case the Commission was sensitive to the anticompetitive effects of the merger and recognized that competition is necessary to protect the public interest. The Commission also noted that intermodal competition is not enough to furnish the impetus for lower prices and increased service, especially with respect to low-rated bulk shipments and long-haul traffic. See Great Northern Pacific & Burlington Lines, Inc. Merger—Great Northern R. Co., —- I.C.C. —-.
134
These problems apparently bother the Commission because in spite of its findings concerning the improved financial position of these two carriers and the improved transportation system even with the loss of competition, it nonetheless refused to approve the merger unless the New Haven road, which is in a notoriously desperate condition, is included. So what the Commission in effect is saying is that the increased financial prowess of the new company and the improved transportation service are themselves not enough to satisfy § 5(2) (c) of the Act. What satisfies § 5(2)(c) of the Act apparently is the opportunity to salvage the New Haven situation. This, I admit, is a relevant consideration if there is to be a merger. But if salvaging the New Haven so as to maintain the economy of New England is relevant,10 then what about the economy of the cities and counties stretched along the lines of these two roads which will be merged? What degree of obsolescence will they suffer?
135
Railroads are critical factors in the production and distribution of goods and in the supply of materials. They are still the basic transporters of low-cost, bulk goods and long-haul merchandise. Their rates and efficiency of service affect industrial competition. Adequate railroad transportation, at reasonable costs, is essential to the economic development of any region or area. The curtailment of rail transportation is bound to have an adverse effect on the areas and communities which rely on railroads to service industry upon which their economic health is dependent. Many communities along the lines are dependent upon the employment furnished by railroads. What will the effect of this merger be on these communities? Will industry locate elsewhere because of inadequate rail transportation? Will the firms located in the region cease to expand or move to other areas? Will decreased employment opportunities mean that the residents of these towns must move elsewhere, thus creating more of the ghost towns which we already see along many of the trunk-lines? None of these questions is even considered by the Commission. After a very generalized discussion, the Commission concluded that the merger would not seriously impair Pennsylvania's economic health. But this 'finding' is foreshadowed by the Commission's expressed view that railroads have little if any responsibility in furthering the economic development of an area and by the Examiners' position that the Commission need not consider the employment, tax, and developmental effects of the merger. And what about the other States and communities so vitally interested in the effects of this combination? The Commission's opinion is totally unenlightening. The Examiners' Report is no better. It contains a long list of interesting statistics, on a state-by-state basis, but makes no attempt to evaluate the effects of the combination.11 Compare Stanford Research Institute, Selected Impacts of Railroad Mergers (1965).
136
This merger, like the ones preceding it, apparently is a manipulation by financiers and not a part of regional planning which is the ultimate function of the Interstate Commerce Commission. Yet if the imprimatur of the Commission is to be put on the plans of the financiers much more should be known about them. What interests will control the new company? How powerful will those interests be? Are the interests which will control the new company antagonistic to the basic interests of the region being served? Is the Commission putting its imprimatur on a new form of banker-management of rail carriers that was so disastrous to the New Haven and that Mr. Justice Brandeis exposed in Other People's Money 129—136 (1933)?
137
The New Haven Railroad is indeed an excellent example of manipulation at the hands of financial interests rather than management by railroad operators. Mr. Justice Brandeis said:
138
'The rise of the New Haven monopoly presents another striking example of combination as a developer of financial concentration; and it illustrates also the use to which 'large security issues' are put.
139
'In 1892, when Mr. Morgan entered the New Haven directorate, it was a very prosperous little railroad with capital liabilities of $25,000,000 paying 10 per cent dividends, and operating 508 miles of line. By 1899 the capitalization had grown to $80,477,600, but the aggregate mileage had also grown (mainly through merger or leases of other lines) to 2017. Fourteen years later, in 1913, when Mr. Morgan died and Mr. Mellen resigned, the mileage was 1997, just 20 miles less than in 1899; but the capital liabilities had increased to $425,935,000. * * * (A)dditional issues were needed, also, because the company paid out in dividends more than it earned. * * * (O)f the capital increase, over $200,000,000 was expended in the acquisition of the stock or other securities of some 121 other railroads, steamships, street railway-, electric-light-, gas- and water-companies. It was these outside properties, which made necessary the much discussed $67,000,000, six per cent, bond issue, as well as other large and expensive security issues. For in these fourteen years the improvements on the railroad including new equipment have cost, on the average, only $10,000,000 a year.' Id., at 121—122.
140
'(T)he most grievous fault of this banker-managed railroad has been its financial recklessness—a fault that has already brought heavy losses to many thousands of small investors throughout New England for whom bankers are supposed to be natural guardians. In a community where its railroad stocks have for generations been deemed absolutely safe investments, the passing of the New Haven * * * dividends after an unbroken dividend record of generations comes as a disaster.
141
'This disaster is due mainly to enterprises outside the legitimate operation of these railroads; for no railroad has equaled the New Haven in the quantity and extravagance of its outside enterprises. * * *
142
'Close scrutiny of the transactions discloses no justification. On the contrary, scrutiny serves only to make more clear the gravity of the errors committed. Not merely were recklessly extravagant acquisitions made in mad pursuit of monopoly; but the financial judgment, the financiering itself, was conspicuously bad.' Id., at 130—131.
143
The years passed, the New Haven emerged from bankruptcy reorganization, and in 1954 Patrick B. McGinnis won a proxy fight for control of the road and became president. His group owned very little preferred stock; but in order to pay dividends on the common, in which he was heavily interested, he first had to pay cash dividends on the preferred. These cash dividends were paid out in very large amounts, the record showing the following:
1954........................... $3,440,180
1955............................ 2,457,700
144
At the same time, maintenance outlays were severely cut. Total outlays for maintenance of ways and structures dropped from $27,641,046 in 1953, to $19,647,313 in 1954, to $18,338,714 in 1955. Total maintenance of equipment decreased from $24,306,984 in 1953, to $22,794,715 in 1954, to $21,933,318 in 1955.
145
It is estimated that this cabal of financial interests lost $7,000,000 of the railroad's money in 20 months. Cash reserves dwindled, current liabilities mounted, as did long-term debt. 'It's a stock speculation venture instead of a railroad business' said one director. Time, January 30, 1956, p. 76.
146
Is the new Penn-Central Company also to be milked by predatory finance?
147
Alternatively, if a regime as big and as powerful as this is to be turned loose, should it stay in private hands? How big can an enterprise of this character get without stepping over into the public domain? 'How far should the consolidations be allowed to go before they cross the threshold of private enterprise and enter the domain of private government?12 Is the power and the control so great that we should think in terms of public ownership13 rather than private ownership?
148
These considerations go to the very vitals of § 5(2)(c) of the Act and none of them is answered. They are emphasized by the apparent worry in the mind of the Commission that in spite of all the arguments for the merger that it could advance, it decided not to approve it unless the New Haven was bailed out. Bailing out the New Haven may be very important in the public interest, as I have said. But in the context of these modern mergers there is the terrible spectre that the Federal Government may be creating new Frankensteins who will be running the country in a way that people can ill afford.
149
The alarm is increased by the Commission's default as respects the other eastern rail carriers. There are three so-called 'protected' roads—Erie-Lackawanna, Delaware & Hudson, and Boston & Maine. The Commission found that this merger would destroy those three as independent railroads and proposed the imposition of protective conditions. What those protective conditions will be we do not know. If they include a capital indemnity, the 'protected' lines will in substance disappear from the competitive scheme. Should competition be bought off in that manner?
150
Should the three 'protected' carriers go into this Penn-Central merger and create a monopoly of rail transportation east of Buffalo and north of New York City? The Commission has never made any effort even to consider whether such an inclusion in Penn-Central would be in the public interest.
151
There are suggestions that perhaps the three 'protected' lines belong in the N & W—Nickel Plate system. In that merger it was recognized that E—L was a logical addition but that inclusion on equitable terms was not possible because of E—L's poor financial condition. 324 I.C.C. 1, 22. The Commission therefore reserved jurisdiction to give E—L five years to improve its financial position to become eligible for inclusion in N & W on equitable terms. 324 I.C.C., at 28—29.14 The Penn-Central merger has frustrated this purpose by threatening the very survival of E L, D & H and B & M as independent roads. If they are not to become members of the Penn-Central system, their only alternative seems to be inclusion in N & W. The failure of the Commission to consolidate these cases raises the distinct possibility that the three 'protected' carriers may not be included in any system, and being unable to withstand the pressure of the Penn-Central, will be destroyed. As my Brother Brennan points out, the inclusion of these roads in the N & W system is no less risky than their inclusion in the Penn-Central system.
152
The question whether the Penn-Central merger is in the 'public interest' therefore cannot be resolved until the fate of these three protected roads is determined. They too have stockholders and bondholders. They too service shippers, consumers, and communities. They too are an important part of the competitive system in the East. The truth is that before the Commission can exercise an informed judgment on the Penn-Central merger, it must deal with the serious impact which this merger will have on the three 'protected' carriers.
153
There are also seven unprotected eastern rail carriers whose future is in doubt. Their fate is emphasized anew by a new merger application now pending before the Commission. As I have said, the Commission has promoted three systems in the East—the C & O, the N & W, and Penn-Central. Now the C & O and N & W have applied for approval to merge. This proposal would include the three 'protected' roads I have mentioned. It would also include Central of New Jersey and Reading. Hearings on that merger will commence April 17, 1967. If that merger is approved, we will have two huge eastern rail cartels rather than three.
154
Was the creation of the new Penn-Central behemoth the reason for the desire to create this second one?
155
What will happen to both the three 'protected' lines and the seven unprotected ones under a regime of two eastern cartels? Where will they best fit to maintain as much of a competitive system as possible?
156
No one at present can say because the entire merger problem of the East is nowhere near solution. Until the total plan is known, an informed decision is impossible. The Commission does not even know what effect the inclusion of NH will have on Central of New Jersey which claims that the inclusion of NH should not be authorized, unless CNJ is at least included in one of the new large systems. Under § 5(2)(c) the Commission is required to consider 'the effect upon the public interest of the inclusion, or failure to include, other railroads in the territory involved in the proposed transaction'. In McLean Trucking Co. v. United States, 321 U.S. 67, 87, 64 S.Ct. 370, 380, 88 L.Ed. 544, we stated that the Commission has the duty 'to consider the effect of the merger on competitors and on the general competitive situation in the industry'.
157
Its default in that regard is conspicuous here. Those required findings cannot be made until a master plan or plans for the East are designed and the place of each rail carrier in the new system is finally rationalized and determined.
158
The Commission has now approved three privately planned mergers embracing over 85% of the railway operating revenues in the entire eastern railroad market. The unresolved but crucial question is whether the remaining roads can survive as presently constituted; or if they cannot, how they can best be restructured to promote competition against one or more of the new merger systems.
159
The case must be remanded to the Commission so that the competitive regime of the East under two or three or four or five rail cartels can be determined. The impact on the communities of the region must be determined. The competitive balance of the several combines must be appraised. The position of each rail carrier in the new picture must be established. And the financial hierarchy of the new cartels must be exposed so that the centers of control will be known. Only when all these facts are known can the Commission make the required findings under § 5(2)(c). Only then will judicial review of a responsible kind be possible. It is only when the required findings are made that we will be able to know what the Commission's opinion really means and to determine whether the statutory standards have been met. See United States v. Carolina Freight Carriers, 315 U.S., at 480—489, 62 S.Ct., at 725—729, 86 L.Ed. 971.
160
We should say here what we said in Securities and Exchange Commission v. Chenery Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 462, 87 L.Ed. 626, 'The Commission's action cannot be upheld merely because findings might have been made and considerations disclosed which would justify its order as an appropriate safeguard for the interests protected by the Act. There must be such a responsible finding. * * * There is no such finding here.'
161
I would reverse the lower court and remand the cases to the Commission not only to spell out the terms and conditions specified by the Court but also to make the necessary findings on the reach and merits of the merger as required by § 5(2)(c) of the Act.
162
Mr. Justice FORTAS, with whom Mr. Justice HARLAN, Mr. Justice STEWART and Mr. Justice WHITE join, dissenting.
163
For more than 45 years it has been the national policy, reflected in congressional legislation, that the railroads of this country should be combined into a limited number of systems. The policy gained acceptance in 1919, when, following World War I, the Government was planning to return the railroads to private ownership and the frail condition of many of the smaller roads became apparent. The Transportation Act of 1920 directed the Commission to formulate a national master plan of consolidation pursuant to which, it was hoped, the railroads would submit voluntary plans for consolidation. The Commission did so, but the opposition to the program was overwhelming and the goal could not be achieved. In 1925 the Commission asked to be relieved of the burden of working out a national plan, but until 1940, its request did not result in congressional action. In that year, Congress enacted the Transportation Act of 1940, which remains in effect and governs the present proceedings. Under that Act, and in all of the years since 1919 or 1920, the national policy of effecting consolidations of the railroads into a limited number of systems has been unchanged. Because of the failure of the technique authorized by the 1920 Act, Congress in the 1940 law abandoned the idea of a formal national plan, and left the power to initiate mergers and consolidations in the hands of the carriers. The Commission became judge rather than architect. See generally, St. Joe Paper Co. v. Atlantic Coast Line R. Co., 347 U.S. 298, 315—321, 74 S.Ct. 574, 583—587, 98 L.Ed. 710 (Appendix) (1954).
164
The 1940 Act expressly provided that two or more carriers could merge or otherwise combine management, ownership, and operation if the approval of the ICC were obtained. The key provision, which basically governs the present case, is § 5(2): 'If the Commission finds that, subject to such terms and conditions and such modifications as it shall find to be just and reasonable, the proposed transaction is within the scope of subdivision (a) of this (section) and will be consistent with the public interest, it shall enter an order approving and authorizing such transaction, upon the terms and conditions, and with the modifications, so found to be just and reasonable. * * *' § 5(2)(b). Among the considerations to which the Commission is to give weight are: '(1) The effect of the proposed transaction upon adequate transportation service to the public; (2) the effect upon the public interest of the inclusion, or failure to include, other railroads in the territory involved in the proposed transaction; (3) the total fixed charges resulting from the proposed transaction; and (4) the interest of the carrier employees affected.' § 5(2)(c). Jurisdiction 'to enforce, enjoin, set aside, annul or suspend, in whole or in any part, any order' of the ICC, is vested in the district courts by 28 U.S.C. § 1336. It is clear, beyond argument—one would confidently assert prior to today's decision—that whether particular railroad mergers serve the public interest, including the antitrust ingredient, is to be judged by the standards of the Transportation Act of 1940 as applied initially by the ICC, and not by this Court.
165
Under the 1940 Act, the Commission's judgment is not to be governed by the antitrust laws. As this Court said in McLean Trucking Co. v. United States, 321 U.S. 67, at 84—85, 64 S.Ct. 370, at 379, 88 L.Ed. 544 (1944), there is 'little doubt that the Commission is not to measure proposals for all-rail * * * consolidations by the standards of the anti-trust laws.' In the last Term of Court, a decision of a three-judge district court setting aside ICC approval of a merger was reversed by this Court in a per curiam decision, quoting the above statement from McLean Trucking, because the District Court applied antitrust standards to overturn the ICC decision. Seaboard Air Line R. Co. v. United States, 382 U.S. 154, 86 S.Ct. 277, 15 L.Ed.2d 223 (1965). In that case, the Court said: 'It matters not that the merger might otherwise violate the antitrust laws; the Commission has been authorized by the Congress to approve the merger of railroads if it makes adequate findings in accordance with the criteria quoted above that such a merger would be 'consistent with the public interest." 382 U.S., at 156—157, 86 S.Ct. at 278.
166
Until recently, despite the provisions of the 1940 Act, little was accomplished to effectuate the national policy of combining roads into a few major systems. The conflicts and rivalries, the overlaps of conflicting needs and ambitions are so great that the task is formiable and, from time to time, has appeared hopeless. Finally, in 1962, the ICC approved the C & O's acquisition of control of the B & O.1 In 1964, it approved the combination of the N & W and the Nickel Plate.2 And, after more than 10 years of elaborate corporate maneuvering and negotiating, in 1962 the Pennsylvania and the New York Central Railroads filed with the ICC their proposal to merge. Lengthy administrative proceedings followed, and it was not until April of 1966 that the ICC rendered its final decision, approving the merger subject to conditions. Pennsylvania R. Co.-Merger-New York Central R. Co., 327 I.C.C. 475. It modified those conditions on September 16, 1966. 328 I.C.C. 304. If the Penn-Central merger becomes effective, the result will be three large systems, each operating in various and sometimes overlapping parts of the Northeast, middle Atlantic and midwestern States. The Commission's opinions in the three cases indicate its view that the consequences, at long last, will be a substantial measure of progress towards the goal successively announced in the transportation laws of 1920 and 1940.
167
The Penn-Central merger, as approved by the ICC, was attacked by various parties and a temporary injunction was sought in the Southern District of New York. The complainants included a number of railroads, several affected communities and one Milton Shapp. As the matter comes to this Court,3 the only plaintiffs who complain about the merger itself are Shapp and the City of Scranton, Pennsylvania. Shapp, whose rather shaky standing to participate in these appeals is predicated upon his participation before the Commission and the bare circumstance that he is a shareholder in the Pennsylvania Railroad and a citizen of Pennsylvania, asserts here, as he did in the District Court, that in calculating the necessity for the merger and the benefits to be derived therefrom, the ICC relied upon an unwarrantedly pessimistic forecast as to railroad prospects, and that as a result it has approved a transaction which will have serious anti-competitive effects in the East and will inflict economic harm upon the Commonwealth of Pennsylvania. A single community in Pennsylvania, the City of Scranton, concurs with Shapp's analysis and argues in addition that the merger and expected inclusion of the E—L, D & H and CNJ in one or another system will reduce the quantity of rail service now available to Scranton, which is presently served by those three smaller roads. The United States, which questions the correctness of the procedure used by the Commission in protecting the E—L, D & H and B & M, does not challenge the merger itself. Indeed, the Solicitor General has represented to the Court that 'the agencies of the Executive Branch that have substantive responsibilities for the formulation of economic and transportation policy believe that the merger is in the public interest and that its consummation should be promptly effected.'4
168
None of the railroads objects to the merger itself as unlawful or unfair. None of the affected States objects. The Commonwealth of Pennsylvania which had at one point opposed the merger withdrew its opposition, and now urges approval of the ICC order. Vigorous attack, however, was and is launched upon the ICC's order by various of the railroads because of provisions in the order addressed to the complications arising from the situation of three smaller roads, the E—L, the D & H, and the B & M.
169
The three-judge District Court, in an opinion by Circuit Judge Friendly for himself and District Judge Levet, declined to issue a temporary injunction to enjoin the merger, Judge Weinfeld dissenting. 259 F.Supp. 964. This Court granted a stay and expedited the case for consideration. The Court today sets aside the ICC's order. It expressly reserves any ruling upon the issue of the merits of the merger. It bases its decision entirely upon the alleged failure of the Commission to make adequate provision for the three smaller roads prior to authorizing consummation. In a separate opinion, Mr. Justice DOUGLAS concurs, but concludes that he would also hold the merger itself illegal and the Commission's approval unlawful for this reason. I respectfully dissent. I believe we should affirm the order of the District Court upholding the Commission's action.
170
Certainly, there is no tolerable basis for our attacking the merger on its merits. To do so would be to substitute our judgment for that of the Commission on grounds which, to say the least, are speculative and based upon the claimed superiority of competing economic considerations. We are not at liberty to do this, and if we were free to do so, it would require a high degree of intrepidity on such a basis to overturn a result which, even if we assume its imperfections, generally incorporates a significant step in a direction which national policy has sought for several generations. This is Congress' responsibility, and the task, not of the courts, but of Congress' designated instrumentality, the ICC. The national need to refurbish and revitalize rail communications is urgent—some say of desperate urgency. The ICC has found that the merger here will result in economies and efficiencies aggregating $80,000,000 annually by the eighth year, which it asserts will enable the roads to effect the badly needed modernization of their facilities. This may be a step in the wrong direction, as my Brother DOUGLAS argues; but we have neither the franchise to say so nor the power to do better.
171
The problem presented with respect to the three smaller roads assumes a different form. Here, it is urged that the Commission specifically failed to carry out its statutory duty and that the merger should not be consummated until its task is complete. The facts are as follows:
172
1. The three roads, the Commission has found, cannot survive without inclusion in one of the large, integrated systems. The Commission has assumed, as I shall describe, that they will be included in either the N & W or the Penn-Central systems. The three roads filed applications in both the N & W-Nickel Plate and the Penn-Central proceedings, for inclusion in the resulting system. They have indicated their preference for inclusion in the former. The Commission approved the N & W-Nickel Plate merger and its order has become final. It did not, however, pass upon the application of the three roads for inclusion. On the other hand, it made effective assurance for the subsequent determination of the issue and the effectuation of the result. Its order of approval provided that the ICC would retain jurisdiction for five years to require the N & W to include the three roads on terms that the ICC would itself prescribe in the absence of agreement, and it required the irrevocable consent of N & W to such order as a condition of consummating the merger. The N & W gave its consent. On December 22, 1966, pursuant to the reserved jurisdiction, Commissioner Webb of the ICC recommended authorizing inclusion of the three roads in the system.5 It is anticipated that a Commission order will be entered by July 1 or August 1, 1967. When this order becomes final, if it provides for inclusion of the three roads in the N & W system, that will settle their ultimate fate and will terminate the significance of the conditions to which the Court herein objects and which have resulted in setting aside the ICC's order. It must be remembered, however, that the Commission's order will be subject to judicial review; and if the past is a guide to prediction, the resulting proceedings will be long, complex, and bitter. In short, no one can say whether the three roads will find their ultimate home during this calendar year or the next.6
173
2. In the present proceeding, the ICC denied the request of the three roads for inclusion in the Penn-Central system, but it provided that if they were not included in the N & W system, they might resubmit the matter by supplemental petition. It is essential to note that no attack is made in this proceeding on these provisions relating to the ultimate fate of the three roads.
174
3. The ICC concluded that the three roads required some interim protection because 'when the various consolidations of yards and equipment and the new through routes contemplated by the applicants are effectuated, a substantial amount of traffic could be diverted from E—L, D & H and B & M.' Accordingly, it decided to impose certain conditions which I shall describe, and it required of the applicants 'their acceptance of and active cooperation in the implementation of conditions' pending ultimate decision as to the inclusion of the three roads in a major system. In this connection, the Commission made the statement that has provided the basis of attack. It said: 'It is doubtful that, without inclusion in a major system, these three carriers could withstand the competition of the applicants merged, and, unless they are protected during the period necessary to determine their future, we would not authorize consummation at this time, even though approving the merger.' 327 I.C.C., at 531—532.
175
4. The conditions consisted of measures for (1) traffic maintenance, by temporary preservation of present practices and patterns; (2) indemnity payments to cover losses due to diversion of traffic, if any; and (3) procedures to determine disputes under these conditions. The Commission specifically provided, however, that notwithstanding the above, the applicants and the three protected carriers could enter into an agreement for alternate protections 'which shall supersede the protection provided by such sections' if not otherwise violative of law. 327 I.C.C., at 563, App. G.
176
5. The three protected carriers complained that the conditions were not adequate for their protection and they specifically demanded, in addition to improvement of the traffic and indemnity provisions, an indemnification against capital impairment. On the other hand, a number of other roads attacked Appendix G on the ground that the indemnity provisions would induce manipulation and diversion of traffic by both Penn-Central and the three roads which would be harmful to them. All of them complained that there had been no hearing, and the nonprotected complainants alleged that the indemnity conditions really amounted to a pooling arrangement which should have been but was not considered under § 5(1) of the Act.
177
6. On September 16, after the present suit had been filed, the Commission granted the various petitions to reconsider Appendix G. Pending hearing and decision on reconsideration, it rescinded the indemnity provisions but left in effect the traffic conditions subject to whatever modifications might be made. 328 I.C.C. 304. The Commission said that 'Since the applicants have indicated willingness to accept post-merger modification of the protective conditions, they may proceed with consummation of the merger upon our authorization thereof becoming effective. Such consummation will constitute irrevocable assent on the part of the applicants to any modification resulting from the further consideration herein described and ordered and which is found to be just and reasonable; as well as irrevocable agreement by the applicants to comply fully with the conditions as modified.' On October 31, pursuant to this ruling, hearings were commenced on the interim protective conditions.
178
It is the ruling that the merger may be consummated in these circumstances that the Court finds objectionable and on the basis of which the Court halts this transaction which is concededly of major importance to the Nation. The Court reasons that the Commission's order as it now stands fails to implement its findings with respect to the three smaller roads, and unless and until it does so the merger may not be consummated.
179
Fundamentally, I submit, this is based upon a misconception of the ICC's findings. The Commission firmly and clearly held that, as a condition to consummation of the merger, it was necessary to assure that the three roads would be protected pending their inclusion in one of the larger systems. But it is clear that the Commission did not find that it was necessary to fix the terms of such protection prior to consummation of the merger. On the contrary, the Commission prescribed traffic and indemnity provisions in what must, in all fairness, be regarded as a tentative setting.
180
The prescribed conditions were, as the court below noted, 'unprecedented in their severity in the history of railroad mergers'. 259 F.Supp., at 969. They had not been focused or defined prior to the Commission's report for the apparent reason, understandable to anyone familiar with the administrative process, that they must have been crystallized in the post-argument deliberations of the Commission and its staff. They had not been included in the Hearing Examiners' report. The conditions are complex. Interim protection of the three roads against possible traffic diversion and resulting financial loss depends upon future events which are unknown and largely unknowable. A vast realignment of the sort involved here always has elements of the unique, and only a doctrinaire approach, separated by the miles that lie between the quiet of theoretical condemnation in this Court and the pressures of realistic problems in the administrative agency, can explain this Court's readiness to insist that an unknown and unknowable solution be prescribed in advance. Solutions can be found, prescriptions can be written, to implement the Commission's determination that adequate interim protection must be furnished to the three roads. The Commission's insistence upon such protection is beyond dispute. Its deferral, in part, of the prescription of specific measures to effect this is at least understandable in light of the inherent difficulty of the problem. This is clear: (1) Appendix G, as I have noted, in effect invited the parties to work out their own agreement in substitution for the Commission's formula; (2) the Commission further demonstrated its awareness that only time and experience would perfect the interim conditions by its admonition to Penn-Central to comply not merely with the letter but with the spirit of the protective mandate; (3) the Commission, commendably, I suggest, ordered a hearing and reconsideration of the conditions after litigation commenced and the need therefore became apparent. The Commission, as I have noted, left in effect the traffic conditions, subject to modification, and provided that whatever indemnity provisions might be specified would be retroactive to the date of consummation of the merger. With the assurance that Penn-Central would accept whatever might be ordered in these respects,7 it authorized consummation of the merger.
181
The Court holds that this order approving immediate consummation of the merger is 'insupportable,' not because the Commission lacked power, but because the Commission deferred full implementation of its own findings that it was indispensable that interim protection be provided the three roads. The Court concedes that the Commission may retain jurisdiction for some purposes.8 It does not 'find it necessary to pass upon the question of naked power in the Commission to do what has been done here.' Its drastic action is induced solely because of the Commission's decision to effect interim protection of the three roads—to which it and Penn-Central are fully committed—by prescribing only traffic conditions presently and to proceed with deliberations to work out the controversial and complex indemnification provisions. I agree with the Commission that, in view of the complete consent of the applicants to accept the terms ultimately fixed, there is no reason to defer the consummation of the merger until this is done. In any event, the choice of procedure that the Commission has made is not unreasonable; and this Court should not upset a decision of the magnitude involved in this merger except for significant reasons of substance.9
182
There is no reason of substance for the Court's action; there is no substantive value that is impaired or lost by proceeding as the Commission has ordered.
183
(1) As the Court found, there has been no objection to the substance of the traffic conditions which will continue in effect, except suggestions as to details. Indemnification provisions will be made retroactive to the date of consummation of the merger and will therefore be as fully effective as if originally prescribed.
184
(2) Effective judicial review of the ultimate conditions will be available. If they fail in any respect fully and lawfully to implement the Commission's finding as to the necessity for interim protection of the three roads, they will presumably be modified. It is, with all respect, nonsense to say that the only remedy would be to 'unscramble the consolidation.' At issue are the indemnity terms. These are the only ones that have not been prescribed. They involve only the guaranty of payment of money on whatever formula the Commission may prescribe in its own motion or after direction by the courts. An order of the Commission or the courts to make such payment can be fully and easily implemented by conventional processes. The traffic conditions are to be effective immediately. They are not under substantial attack. If they are modified in this hearing, that is nothing more than an exercise of the power to modify its order which the Court concedes to be within the Commission's power under § 5(9) of the Act. Cf. United States v. Rock Island Motor Transit Co., 340 U.S. 419, 71 S.Ct. 382, 95 L.Ed. 391 (1951).
185
On the other hand, the Court's order, which I submit is insupportable as a matter of law and of sound administration of the principles of judicial review of decisions of administrative agencies, will have unfortunate consequences. I do not know, and I submit the Court cannot know, just how long it will take to satisfy the Court's rigid prescription that the interim protective provisions must be settled. The Court says that it will entail 'a very short delay'; that the three roads will be included in the N & W or that the Commission's interim order will be perfected with expedition. I view this prediction with profound skepticism. Too many interests have too much to gain from obstruction and delay; and the maze of administrative proceeding and judicial review is not inhospitable to ingenious counsel bent on delay. The history of ICC proceedings is a source book for dilatory tactics and a monument to the successful burial of good projects by over-elaborate procedures manipulated by experts in the art. Meanwhile, national policy continues unfulfilled; urgent national needs for improved long-haul and local rail service are impeded; the desperate erosion of the New Haven continues at a rapid pace; and the public and communities urgently in need of improved rail service continue to suffer.
186
If this result were compelled by law—if the Court's decision rested upon fault of substance—the practical consequence would have to be suffered with grace. But that is not so. The Commission insisted that the three smaller roads had to receive interim protection and required the applicants to agree to this as a condition of consummation of the merger. It has not modified this. It has not failed to implement it. On the contrary, it has—I think, commendably—embarked upon a procedure which, while assuring that the protections will be forthcoming, subject to judicial review, makes possible the careful and deliberate working-out of its terms and at the same time avoids disrupting the timetable of the merger. If we were to comment upon it, we should, I think, be compelled to applaud the unusual flexibility of method which it demonstrates and which has not always ornamented Commission practices. But we should not indulge in this kind of second-guessing. The plain conclusion is that the Commission's order does not violate any principle of law. It does not fail to implement the Commission's findings. It merely provides for the accomplishment in stages of an objective firmly stated to which it and the applicants are fully committed. This is well within its powers, and we should affirm.
Addendum:
187
Mr. Justice BRENNAN's concurring opinion requires these additional comments. He concedes that 'this merger may well be in the public interest,' but he concludes that the Commission's order approving and authorizing consummation of the merger must be set aside because the Commission has not completed the job of providing for the future of the three roads: the E—L, D & H and B & M. Mr. Justice BRENNAN does not contend that, as an abstract matter, settlement of the ultimate destiny of these roads is a necessary precondition to approval of the Penn-Central merger. He recognizes that such a contention would be contrary to statute, precedent, and practical sense. The Commission clearly has power to reserve for the future some problems incident to a merger. Faced—as this Court is not—with the urgent need of coping with the realities of life, the Commission must frequently content itself with less than perfection. Accordingly, Mr. Justice BRENNAN agrees that 'the Act vests wide discretion in the agency to allow a merger to go forward while conditions as to inclusion are worked out.' He argues, however, that in this specific situation, the failure to settle, by definitive order, the ultimate fate of the three roads is error which requires that the order approving the Penn-Central merger be set aside. In my judgment, his analysis lays bare the tortuous speculation upon which the Court's nullification of this merger is based.
188
Mr. Justice BRENNAN's argument, in net effect, is that when the Commission really comes to grips with the problem of including the roads in one of the great systems, one thing will lead to another and the eventual result will be that the Penn-Central merger—to which he does not otherwise object—will become contrary to the public interest. When the Commission reaches this point, it will either have to refrain from including the three roads in either the N & W or the Penn-Central systems, which would be contrary to its findings, or it will have to grit its teeth and go ahead even though inclusion of the three roads in one of the systems would make the Penn-Central merger contrary to the public interest. I agree that either of these would be most unfortunate. My difficulty stems from the fact that there is no basis for the forecast of catastrophe. With all respect, my Brother BRENNAN's journey from the present to this horrifying future requires a trip through outer space which I cannot make, and in which I do not believe we should indulge. There should be more than rocketry to justify our nullification of action of this national importance which has been authorized by the agency with the heavy responsibility for repairing our deplorable national railroad network.
189
Mr. Justice BRENNAN says that '(a)llegations are made' by the Department of Justice and numerous other parties that inclusion of the three roads in either of the major systems 'might not be possible consistent with the public interest or upon equitable terms.' Now the fact that allegations are made is interesting, but less than dispositive; so Mr. Justice BRENNAN, after pointing out that there seems to be general agreement that the three roads should be included in the N & W, says that 'there is a significant possibility, given the present state of circumstances, that inclusion in N & W might be unattainable of attainable only at the price of rendering the Penn-Central merger against the public interest and that, even if inclusion could be accomplished consistent with the public interest, it might be impossible to work out equitable terms.'
190
Now, a 'significant possibility' is not, I think, a conventional basis for judicial nullification of an administrative order. See Illinois C.R. Co. v. Norfolk & W.R. Co., 385 U.S. 57, 69, 87 S.Ct. 255, 262, 17 L.Ed.2d 162 (1966), and cases there cited. It is true, as Mr. Justice BRENNAN argues, that there are problems and difficulties about inclusion of the roads in one of the systems, largely stemming from the poor financial condition of two of the three roads. These difficulties themselves argue for prompt inclusion of the roads in one of the great systems, a result which the three roads' fierce struggle for the last ounce of flesh may paradoxically defeat.10 But judicial pessimism, if it is to lead to administrative nullification, should have a more substantial basis than is present here. There is, in fact, no basis here for assuming that the roads will not be included in the N & W; or that the terms and conditions will not be equitable; or that the result will make the Penn-Central merger contrary to the public interest—or that, if any of these happened at the Commission's hands corrective measures could not be mandated by the courts.
191
The N & W, as Mr. Justice BRENNAN recognizes, has 'irrevocably agreed to include these three petitioners in their system upon terms * * *, if necessary, prescribed by (the Commission), provided such inclusion is found to be consistent with the public interest.' 327 I.C.C., at 529. There is no reason for us to doubt that the Commission will in fact complete the task of working out terms and conditions of inclusion. If deemed necessary, we could order that the District Court retain jurisdiction so that the courts could speedily accomplish the result if the Commission should fail.
192
But Mr. Justice BRENNAN darkly argues that the pressure of the problem of including the three roads will result in creating a 'virtual rail monopoly in the southeastern States.' He attaches a map to prove it. This will come about, he says, because when the Commission really gets down to the inclusion of these three roads in the N & W, the financial burdens will irresistibly impel the Commission to allow the N & W and C & O to affiliate with monopolistic effect, in order to bear the weight of the included roads. The net result, therefore, he argues, is 'that Penn-Central will increase the likelihood of, and may actually cause, an affiliation of N & W and C & O.' He points out that the Commission did not consider this possibility. That's true. But the remoteness of the consequence that Mr. Justice BRENNAN divulges is such that neither we nor the Commission can, in all reason, be required to consider it. I respectfully disagree with my Brother BRENNAN that 'Only by considering this possibility could the ICC fulfill its obligation to consider all the relevant factors before approving the merger.' I do not believe that we can require of the Commission the rich and resourceful imagination to foresee the consequence that the relatively minor problem presented by the three roads will precipitate a vast monopoly, nor, if the Commissioners were so gifted as to envisage such a result, could we expect a response from them as to the problem presented other than a solemn oath that they will not build a city to house a mouse. In any event, if they yielded virtue and judgment in response to the urgencies of these three roads, the courts could always overrule them.11 That the courts would not be timid, reluctant, or deferential to intervene in the Commission's decision is a proposition which today's decision establishes beyond dispute.
193
I repeat: Given the point conceded by my Brother BRENNAN that the Commission has power to permit the merger to go forward while the problems incident to inclusion of these three roads in one of the great systems are being worked out, there is no basis for repudiating the exercise of that power in this case.
194
It is not necessary to analyze Mr. Justice BRENNAN's detailed attack upon the Commission's interim protective conditions for the three roads. These are being reconsidered by the Commission, and are hardly ripe for judicial review. The underlying question is, again, whether the Commission may allow the 'merger to go forward while conditions * * * are worked out.' Mr. Justice BRENNAN contends that 'the Act vests wide discretion in the agency' to do this, and I confess bafflement as to why this discretion is not broad enough to require us to tolerate the Commission's action here.
195
The basis fact of the matter, I submit, is that this is not a case in which the Commission has refused or failed to consider, or to make findings or provide for effective measures with respect to a material aspect of a merger. It gave elaborate, meticulous consideration to the problem presented by the three roads. It made findings with respect to their needs which apparently evoked an enthusiastic response—perhaps excessively enthusiastic—in this Court. It worked out provisions for assuring the interim protection of the roads and their eventual destiny. It made clear, effective provision for accomplishing the result found necessary: that the three roads ultimately be included in one of the major systems and that meanwhile they receive traffic and financial protection and benefits. It did this by requiring advance consent and reserving jurisdiction. The integrity and adequacy of the process may be subjected to court review.
196
I cannot escape the conclusion that the dimensions of this merger have induced a major departure from the established and sound principles governing judicial review of administrative judgments in complex economic situations. It is, of course, possible, perhaps probable, that the parties affected by this merger, including the three roads, aided by the shock of the Court's action herein, will find a way to avert the national mischief of aborting the Penn-Central merger and of avoiding the continuation of the deplorable condition of two of the three roads which will persist if the Penn-Central merger is not effectuated. But I think, with all respect, that the Court's decision in this case is wrong in principle and unfortunate in consequence. It is a reversion to the days of judicial negation of governmental action in the economic sphere. We should be conservative and restrained, I think, where all we can say is no. The problems of the administrative agency deserve more understanding and its efforts to find solutions are entitled to more respect than the Court has today shown. The courts may be the principal guardians of the liberties of the people. They are not the chief administrators of its economic destiny.
1
'Competitive factor' was defined as any particular route, rate, or service on which any of the 'protected railroads' were handling traffic at the time the merger application was filed or at the date of the order.
2
We include it in this discussion since the Commission intends to include it in the Penn-Central system as soon as terms and conditions are agreed to or fixed.
3
In the matter of the New York, New Haven and Hartford Railroad Company—Debtor, 221 F.Supp. 288, D.C.Conn.
4
This proceeding involved the merger of the Nickel Plate. E L sought inclusion in this proceeding along with B & M and D & H. After E—L had withdrawn its application the Commission found that the merger 'should have no harmful effects' on B & M and D & H. The Commission retained jurisdiction for five years to permit E—L, B & M and D & H to again petition for inclusion. See 324 I.C.C. 1, 19—31. Each of the roads so petitioned and it is this inclusion proceeding that is now before the Commission.
5
Among these, CNJ claims it has been deprived of a hearing on the effect on it of the inclusion of the NH in the Penn-Central merger. As the Commission out, however, the terms and conditions of the NH,'s inclusion are subject to further proceedings and the Commission has specifically given to CNJ leave 'to seek protection for (its) traffic and gateways,' at that time. 327 I.C.C., at 527. Moreover, CNJ also says, it has not been afforded a hearing on its claim that the merger will also deprive it of important overhead coal traffic now delivered by CNJ to D & H at Wilkes-Barre, Pa. This might be lost, it alleges, because of the direct connection between D & H and N & W which will be available over the trackage rights that Penn-Central is being required to grant D & H. We know nothing of the merits of these claims and, of course, indicate no decision thereon. However, we assume that the Commission will in each instance afford the CNJ an opportunity to be heard concerning them.
*
327 I.C.C. 475, 561.
Provisions for the Protection of E—L, D & H, and B & M.
1
Chesapeake & O. Ry. Co.—Control—Baltimore & O.R. Co., 317 I.C.C. 261, sustained sub nom. Brotherhood of Maintenance of Way Employees v. United States, 221 F.Supp. 19 (D.C.E.D.Mich.), aff'd per curiam, 375 U.S. 216, 84 S.Ct. 341, 11 L.Ed.2d 270.
2
Norfolk & W. Ry. Co. and New York, C. & St. L.R. Co. Merger, 324 I.C.C. 1.
3
Pennsylvania and Central claim we should not pass upon the Department of Justice's contention that the Commission should have delayed consummation until inclusion of the smaller roads in a major system was assured. The issue is, however, presented by the ICC itself, in its statement of Questions Presented, where it recites that, whether the District Court erred in refusing to enjoin consummation pending assurance of inclusion, is a question embraced within the general question presented on these appeals. Brief of the ICC, p. 4. A number of the railroad appellants, moreover, claim they have properly presented the question of delay pending inclusion. These representations amply fulfill the requirement of this Court's Rule 15(1)(c)(1), and the point has in fact been fully briefed and argued.
Neither is there merit to the claim that this issue, clearly raised before the ICC, 327 I.C.C., at 528, was not raised before the District Court. Counsel for D & H complained that the Commission found 'the only way the D & H could be protected is through inclusion in some system, but they have not yet made a finding * * * as to whether our inclusion in any system is consistent with the public interest,' Transcript, p. 58, and counsel for C & O was unable to answer meaningfully Judge Friendly's comment that his 'position is really that the merger cannot be consummated until all these other proceedings are carried to a conclusion * * *,' id., at 80. The District Court explicitly rejected 'the claims that consummation of the merger should be deferred until conclusion of all pending rail merger proceedings * * *.' 259 F.Supp. 964, 972.
4
Although this case arises as an appeal from the District Court's denial of motions for interlocutory injunction, the parties recognize that the lawfulness of the ICC's order permitting immediate consummation of the merger is in issue before this Court.
5
The ICC's most recent pronouncement on the issue is in Great N.P. & B.L.R. Co.—Merger, F.D. No. 21478, p. —-, decided March 31, 1966, reconsideration granted January 4, 1967:
'The legislative history of section 5 clearly shows that the Congress did not adopt a policy fostering or encouraging railroad unifications. It was the Transportation Act of 1920, not the Transportation Act of 1940, that embodied a policy favoring railroad consolidations. * * * No such policy is expressed in section 5. To interpret section 5 as implying such a policy is a perversion of legislative history and intent. The public interest scale is balanced. It is not to be tipped by the slightest presumption for or against merger.'
It is meaningless, of course, to contend that the Act favors unifications that are otherwise consistent with the public interest; it also disfavors unifications inconsistent with the public interest.
6
Chicago, B. & Q.R. Co.—Control, 271 I.C.C. 63, 146. See also Detroit, T. & I.R. Co.—Control, 275 I.C.C. 455, 489, sustained sub nom. New York, C. & St. L.R. Co. v. United States, 95 F.Supp. 811 (D.C.N.D.Ohio).
7
The Staff Study by the Commission's Bureau of Transport Economics and Statistics on 'Railroad Consolidations and the Public Interest' (p. 46), accurately labels this factor 'a highly important criterion, since it involves the basic problem of competition among railroads.' Reprinted as Exhibit 11, Hearings before the Subcommittee on Antitrust and Monopoly on S. 3097, 87th Cong., 2d Sess., pt. 2, p. 859 (1962).
8
When E—L, for example, withdrew its petition for inclusion in N & W the Commission expressly stated that the Transportation Act of 1940 'does not limit our participation in carrier-initiated consolidations to passing upon a proposal on a take-it-or-leave-it basis. We are specifically enjoined to consider, among other things, the effect * * * upon the public interest of the inclusion, or failure to include, other railroads in the territory involved in the proposed transactions.' 324 I.C.C., at 26. Accord, New York Central Securities Corp. v. United States, 287 U.S. 12, 28, 53 S.Ct. 45, 49, 77 L.Ed. 138; Toledo, P. & W.R. Co.—Control, supra, 295 I.C.C., at 529.
9
Accord, Alton R. Co.—Acquisition, 175 I.C.C. 301, 313, where the Commission later concluded, 189 I.C.C. 271, 285, that the public convenience and necessity did not require acquisition of the short lines involved. This is also the course followed by the ICC with respect to the New Haven in the Penn-Central proceeding.
10
Accord, New York, C. & St. L.R. Co.—Control, 224 I.C.C. 259, 269, where the Commission, in approving a control application, imposed a condition requiring the applicant to abide by its findings concerning whether the applicant should acquire certain affected short lines.
11
In New York, C. & St. L.R. Co.—Control, supra, one of the two short lines seeking inclusion introduced no evidence at all, while the other made an inadequate showing that the public interest required its preservation and no showing whatever that the proposed control transaction would result in diversion of its traffic. 224 I.C.C., at 266—268. Going out of its way 'to the end that the intents and purposes of section 5 may be accomplished * * *,' the ICC left open the door to the short lines' inclusion if they could demonstrate its necessity or desirability. 224 I.C.C., at 269. Other examples of deferral of agency action cited by appellees are inapposite. The ICC has deferred employee protection, reserving jurisdiction to impose necessary terms and conditions. A. C. Allyn & Co.—Control, 50 M.C.C. 305, 310—311. The likelihood that this sort of problem will have unexpected consequences is very slight. In Atlantic Rfg. Co. v. Public Serv. Comm., 360 U.S. 378, 392, 79 S.Ct. 1246, 1255, 3 L.Ed.2d 1312, the Court ruled the FPC could issue a certificate without making a final determination of the vital matter of price, so long as the certificate was conditioned so 'that the consuming public may be protected while the justness and reasonableness of the price fixed by the parties is being determined' in subsequent hearings. No injury was contemplated, and the ultimate issue was not likely to be prejudged.
12
The Examiners found it 'highly likely that the public interest' lies in the direction of inclusion in N & W. Penn-Central Report, F.D. No. 21989, Feb. 26, 1965, at 415. The Commission had indicated in the N & W-Nickel Plate proceeding its receptiveness to inclusion in N & W, and it postponed consideration of inclusion in Penn-Central pending the outcome of the N & W inclusion proceeding.
13
The Examiners stated: 'No consideration has been given to the effect of the proposed inclusion here of the D & H, B & M and/or E—L upon competition, and no effort has been made to assess or accommodate the anti-trust laws in light of such action. We believe resolution of such issues would be premature.' Penn-Central Report, at 418. The Commission adopted these findings, 327 I.C.C., at 481—482, and explicitly reserved, until after inclusion in N & W was denied, the question 'whether inclusion of any one or all of E—L, B & M and D & H in the Transportation Company's system would be consistent with the public interest * * *,' 327 I.C.C., at 531.
14
An elimination of competition in New England and New York was not among even the possible anticompetitive effects of the merger contemplated and weighed. To the contrary, the Examiners drew up a chart (Appendix T—2 of their Report) which incorporated the three roads in the N & W system, and which they used to measure competitive impact. Moreover, the Examiners recommended as a condition of approval that Penn agree to grant trackage rights to N & W between Hagerstown, Maryland, N & W's northern-most terminus in the East, and Wilkes-Barre, Pennsylvania, the southwestern terminus of D & H operations, thereby connecting the roads and enabling them to compete with Penn-Central for traffic between northern New York-New England and the South-southwest. Penn-Central Report, at 429—430. The Commission found it unnecessary to uphold the Examiners' action, since the parties had voluntarily entered into an agreement effectuating the Examiners' views, and since an application for Commission approval of the agreement had not yet been filed. 327 I.C.C., at 528. Finally, in appraising the effect of the merger upon service to New York City, the Examiners anticipated that E—L and N & W together would provide one line of competition. Penn-Central Report, at 433. The Commission likewise assumed in appraising anticompetitive effect that E—L would continue to compete with the applicants in the New York port area, and specifically cited as an example of continuing lines of competition that 'N & W can join with E—L, LV (the Lehigh Valley), D & H and B & M, among others, in handling transcontinental traffic to and from the Port of N.Y. and New England * * *.' 327 I.C.C., at 517, 514.
15
In refusing to recommend requiring B & M's inclusion, Commissioner Webb pointed out that such a course would expose N & W to serious risk 'and would foreclose B & M from seeking inclusion in the Penn-Central system or in the proposed N & W—C & O system on terms which, by reason of its strategic value or improved earnings, are more favorable than those justified by the record herein.' N & W Inclusion Report, at 154. An N & W—C & O system would, as the Commissioner recognized, be far more able financially to absorb the risk of including B & M, and would be willing to offer more than B & M's actual value, possibly out of the savings contemplated in the N & W—C & O merger. In fact, under the plan offered by N & W—C & O for merger and inclusion, B & M shareholders would receive almost twice the actual value of their holdings, and, significantly, Commissioner Webb settled on this same amount as the minimum rate which N & W must pay if it decides to absorb B & M. Id., at 156.
16
N & W Inclusion Report, at 43. See note 18, infra, for further explanation.
17
Counsel for Penn and Central represented in the District Court that he construed the traffic conditions to prevent Penn-Contral from using its solicitation force to get traffic normally moving on the lines of the three roads routed to the lines of Penn-Central. Transcript, p. 132.
18
In working out the value of E—L's stock for the purpose of an exchange with N & W, Commissioner Webb, applying the principle of reciprocal adjustments, refused to deduct from E—L's value the estimated impact of Penn-Central without also deducting from N & W's value the estimated impact of Penn-Central. Since N & W submitted no evidence, he proceeded upon the assumption that the impact upon N & W would be proportionate with the estimated impact upon E—L. The result of this was to enable him to discount completely E—L's capital loss. If this method of valuation were approved he noted, 'the question of capital loss indemnification * * * (in Penn-Central) will become moot.' Id., at 47.
19
In fact, the more effective are the protective conditions, the greater will be their interference with achievement of the planned economies and improvements. Penn Vice-President Large recently testified at the reopened hearings that 'the first two million dollars we save as a result of merger is a good five years away.' Transcript of Hearing of December 15, 1966, F.D. 21989, p. 22343. Qualified by the statement that he had made no studies on the matter, he testified that he saw 'no chance of any substantial savings in the next two years.' Id., at 22344.
20
Under this power, the Commission called upon Mr. Louis D. Brandeis, later Mr. Justice Brandeis, to represent the public in a general rate increase case. The Five Per Cent Case, 31 I.C.C. 351.
21
See generally 2 Davis, Administrative Law §§ 15.01—15.14 (1958).
22
In the Penn-Central case, the Examiners recommended, as a condition to approval of the merger, that Penn be required to sell the Lehigh Valley to C & O—B & O, if such sale were later found to be in the public interest, in order to assure New York City an additional competitive line. Penn-Central Report, at 434—435. The Commission felt it did not have to pass upon this recommendation, since Penn agreed after the Examiners' Report was issued to sell LV to C & O—B & O. 327 I.C.C., at 517.
23
'A regulatory body such as the Interstate Commerce Commission cannot properly discharge its duty if it remains ignorant of relevant facts simply because they were not introduced in evidence. The Commission should itself supply deficiencies in the record. It should bring to light material which the parties have either overlooked or have willfully failed to call to its attention. It should aid those parties who through lack of resources are unable adequately to present their cases. It should make full use of the expert knowledge of commissioners and staff, and of the mass of transportation information that it has accumulated through the years.' H.R.Doc. No. 678, supra, p. 70. See Eastern-Central Motor Carriers Ass'n v. United States, 321 U.S. 194, 208—210, 212, 216—217, 64 S.Ct. 499, 506—507, 508, 509 510, 88 L.Ed. 688.
24
It was the position of the Chairman of Board of Pennsylvania before Congress that the ICC should leave the fate of the smaller roads to be worked out after the principal mergers had been approved. Hearings on S. 3097 before the Subcommittee on Antitrust and Monopoly of the Senate Judiciary Committee, 87th Cong., 2d Sess., p. 385 (1962). He testified that if an attempt was made to stop the three main proceedings, the entire process 'would stop, there is no doubt about it,' id., at 384, and responded to the query whether the ICC 'has no alternative but to buy the package or nothing at all,' that 'It is the fact * * *,' id., at 397.
25
There are indications that the ICC has planned all along for three systems. The most striking of these is the use by the Penn-Central Examiners of a chart to evaluate the merger's anticompetitive effect which accounts for all the smaller roads. Penn-Central Report Appendix T—2. It need hardly be said that the ICC would be proceeding unlawfully if it had determined, without notice or hearing, that a three-system structure was essential, and had then gone through the motions of adjudication.
26
The ICC made no finding that either C & O—B & O or N & W Nickel Plate would lead to the destruction of any other road. See 317 I.C.C., at 265—266, 282; 324 I.C.C., at 27—31.
27
There is abundant evidence that the three recent proceedings are highly interrelated. Central petitioned for a general Commission
investigation during the C & O—B & O proceeding, alleging that the ICC should not upset the existing competitive balance before evaluating all the facts and determining the part each proposal should play in the solution of the eastern railroad problem. Numerous other parties in that case also petitioned for consolidation of the proceedings, either for hearing or decision, with N & W-Nickel Plate and later with Penn-Central.
In the N & W case, the Justice Department argued that the record was inadequate to determine competitive impact and stated 'that only through consolidation can a clear picture be obtained of the effects of the Norfolk & Western-Nickel Plate and Pennsylvania-Central mergers on the Erie-Lackawanna, the Delaware & Hudson, and the New England lines.' The relationship between the N & W-Nickel Plate and Penn-Central proceedings was palpable, not only on the ground that Nickel Plate competed with Central, but also because of the facts that (1) Penn controlled N & W and had taken the position that it would divest only when it knew how it stood with respect to its application to merge with Central, and (2) it was only through Penn's acquiescence that N & W managed to contract for the purchase of the 108-mile Sandusky line which enabled it to link its main line with Nickel Plate's main line, 324 I.C.C., at 74.
Commissioner Webb felt that neither the N & W inclusion proceeding 'nor the Penn-Central case can be fully understood if consideration of one is divorced from the other. Unfortunately, the Commission's action in deciding the cases separately has tended to blur vital issues common to both proceedings.' N & W Inclusion Report, at 23.
28
The best possible example is what happened in this case. Evidence which Central might have presented earlier in the form of an appraisal of the effects of C & O—B & O and N & W—Nickel Plate upon its ability to operate, took the form in the Penn-Central proceeding of the contention that, without a Penn-Central merger, both Penn and Central would be at a competitive disadvantage since neither 'separately would compare with C & O—B & O or N & W—Nickel Plate in any element of strength, whether tested by traffic volume, financial results, or the means for improving service.' Brief of Applicants, F.D. Nos. 21989—21990, dated June 1, 1964, p. 141. And in appraising the anticompetitive effects of a Penn-Central merger, the Examiners in this case stated that, '(a)lthough in certain * * * categories, the increases (to be brought about by the merger) are significant, the degree of relative dominance by P.R.R. in comparison with the other roads, has been decreased significantly as a result of the consummation of the N & W and C & O—B & O transactions by reason of the fact that these latter two systems have also increased their relative share.' Penn-Central Report, at 424. The Commission, too, indicated its conviction that Penn-Central became more justifiable now, that the other systems were authorized, by citing 'the growing strength of the N & W and C & O—B & O systems' as a check against possible abuse of economic power by Penn-Central, and by pointing out 'that applicants will face increasing competition from those two greatly strengthened rail systems.' 327 I.C.C., at 514, 519.
29
The Commission said, for example, in the C & O—B & O case: 'Notwithstanding Central's withdrawal from these proceedings, the effect of the proposed transaction on the operations and traffic of Central and other carriers is an issue to be considered.' 317 I.C.C., at 280. It took insignificant steps, however, to resolve the conflicts of evidence concerning competitive impact upon Central, and failed entirely to weigh the combined effects on Central of both C & O—B & O and the pending N & W-Nickel Plate merger. See 317 I.C.C., at 319.
30
The District Court, in the C & O—B & O case, took basically the same position when, in rejecting the Justice Department's contention that the proceeding ought to be donsolidated with others, it considered 'significant' the fact that no railroad had joined the Department in its request and stated that self-interest would have required them to do so if the adverse impact was actually serious. 221 F.Supp., at 31. The Penn-Central Examiners were more accurate in their appraisal, since they impliedly recognized that the decision not to appear meant only that the road had decided the benefits from its own merger plans outweighed the disadvantages to it of another merger, and not that the railroad in fact contemplated no serious adverse impact upon itself.
31
Huntington, The Marasmus of the ICC: The Commission, the Railroads, and the Public Interest, 61 Yale L.J. 467, 509 (1952). Compare Morgan, A Critique of 'The Marasmus of the ICC: The Commission, the Railroads, and the Public Interest,' 62 Yale L.J. 171 (1953).
32
I find it surprising that my Brother FORTAS refers to today's decision as 'a reversion to the days of judicial negation of governmental action in the economic sphere.' In those days the Court took a restricted view of the power of Congress and its agencies to regulate our economy. That view 'has long since been discarded.' Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93. Our position today, shared by the Solicitor General and the Department of Justice, is not one of judicial negation but of insistence that the ICC fulfill Congress' directive to supervise in the public interest the destiny of this Nation's transportation system.
1
Petition of the New York Central R. Co., Docket No. 33475. Prior to the Transportation Act of 1940, it was the duty of the Commission under § 5 to prepare 'a plan for the consolidation' of the railway systems 'into a limited number of systems.' The 1940 Act relieved the Commission of that duty. H.R.Rep. No. 1217, 76th Cong., 1st Sess., 6. See Schwabacher v. United States, 334 U.S. 182, 192, 68 S.Ct. 958, 963, 92 L.Ed. 1305; County of Marin v. United States, 356 U.S. 412, 417, 78 S.Ct. 880, 883, 2 L.Ed.2d 879. But there is no indication that Congress deprived the Commission of the power to propose one, though its power to enforce one proposed by it in a § 77 reorganization was denied by St. Joe Paper Co. v. Atlantic Coast Line R. Co., 347 U.S. 298, 74 S.Ct. 574, 98 L.Ed. 710, by a narrow four-to-three vote.
2
The Railroad Merger Problem, Report of the Subcommittee on Antitrust Monopoly of the Senate Judiciary Committee, 88th Cong., 1st Sess., 31 (Comm.Print 1963).
3
Id., at 31—32.
4
'* * * (W)e find that this merger, without complete inclusion of NH, would not be consistent with the public interest, and, accordingly, we will require all the New Haven railroad to be included in the applicants' transaction.' 327 I.C.C. 475, 524.
5
Report, supra, n. 2, at 14, n. 52.
6
The reasons usually advanced in support of railroad mergers are: (1) consolidations will improve the ailing financial condition of the constituents; (2) consolidations will result in a reduction of cost of operations; (3) consolidations will improve service capability. The premises underlying these justifications have been seriously questioned. It has been suggested that the financial condition of the industry is not as poor as merger applicants suggest. See, e.g., Keyserling, The Move Toward Railroad Mergers 72—74 (1962); The Railroad Merger Problem, Report of Subcommittee on Antitrust and Monopoly of the Senate Judiciary Committee, 88th Cong., 1st Sess., 49—54 (Comm.Print 1963). Some have maintained that the wave of railroad mergers, and the resulting contraction of physical plant, will impair rather than improve the roads' financial condition and dampen the Nation's economic development. See, e.g., Keyserling, supra, at 75—78. Others have noted that the present condition of the industry is due to a multitude of causes, and that solutions must strike at the roots of the problem rather than accept the temporary palliative of merger. See, e.g., Nelson, Railroad Transportation and Public Policy 327—435 (1959); Meyer, Peck, Stenason & Zwick, The Economics of Competition in the Transportation Industries 242 273 (1959); National Transportation Policy, S.Rep. No. 445, 87th Cong., 1st Sess., 67—71 (1961). It has been suggested that massive alignments may result in serious diseconomies, not in the savings predicted by their proponents. See, e.g., Healy, The Effects of Scale in the Railroad Industry (1961). The Commission does not address itself to these problems.
7
See Brandeis, The Curse of Bigness 185 et seq. (1935).
8
Cf. Conant, Railroad Mergers and Abandonments 25—40 (1964); Conant, Railroad Consolidations and the Antitrust Laws, 14 Stan.L.Rev. 489, 490—495 (1962).
9
It is argued that intermodal competition is not sufficient to protect the public interest, that intramodal competition is necessary to insure progress, efficiency, and lower prices. Only the firms in the same industry have the same cost structures and products. Thus, no firm has a sheltered market due to inherent advantages over other firms, a condition which obtains when competition is only intermodal. Meyer, Peck, Stenason & Zwick, The Economics of Competition in the Transportation Industries 240—241 (1959). Further, the position that intermodal competition is sufficient to protect the public interest ignores the fact that the number of regulated trucking lines on important routes is rapidly decreasing, due to entry control and mergers in the motor carrier industry. If the present trend continues, we may soon see a very limited number of firms—perhaps one from each mode—serving any given route. If that happens, the possibilities of oligopolistic lessening of competition without explicit rate and market agreements is likely. See Chamberlin, Theory of Monopolistic Competition 46—53 (1956).
10
The facts are detailed in the Examiners' Report. The plight of Phode Island is typical:
'N.H. is the only Class I railroad serving the State of Rhode Island. Over 50 percent of the population in Rhode Island are employed in the manufacturing industry and such industry is greatly dependent upon rail service provided by N.H., particularly for the inbound movement of raw materials from points outside of New England. In 1962, 35,000 cars were consigned to or shipped by industries located in Rhode Island via N.H. from which the latter derived $5,000,000 in revenue. Three important naval stations in Rhode Island are located at Newport, Quonset Point and Davisville, and in the Narragansett Bay area, the naval installations employ over 10,000 civilians. In addition to freight service, the N.H. provides an important passenger service in the State, and estimates indicate that approximately 1,200,000 passengers utilizing rail service originate or terminate within the confines of this State annually. Providence, a city with a population of 200,000 and Metropolitan Area of 1,000,000, has water facilities to receive shipments of bulk commodities, but since World War II general freight service by water to and from Providence has been discontinued.
'The Governor of Rhode Island evidenced his concern at the hearing that the failure to include the N.H. in the proposed merger may result in a loss of service provided by N.H. in the State. It was his belief that without such service, the State would have little chance of attracting new industry; that existing industries might relocate their plants and that without rail service, the Federal Government may well determine to reduce or terminate existing defense installations. * * *' Report, at 278.
11
The Commission's own Bureau of Transport Economics and Statistics has recognized the importance of community dislocations in evaluating the 'public interest' aspects of a proposed merger.
'(T)he Commission should consider the local and regional impact of consolidations, economically and socially, as a separate criterion or sub-criterion in its decisions * * *. Separate consideration of local effects would have the merit of affording opportunity for the Commission to distinguish and determine the relative importance of such factors.' Railroad Consolidations and the Public Interest, Staff Report and Bureau of Transport Economics and Statistics 72 (1962).
12
Report, supra, n. 2, at 80.
13
Some experts have suggested that the trend toward railroad consolidations, which may result in the Nation's dependence upon mammoth combines with excessive power, may be a prelude to nationalization of the industry. See, e.g., Meyer, Peck, Stenason & Zwick, The Economics of Competition in the Transportation Industries 260 (1959); Rail Merger Legislation, Hearings before the Subcommittee on Antitrust and Monopoly of the Senate Judiciary Committee, 87th Cong., 2d Sess., 15 (1962) (testimony of Professor Kent T. Healy).
14
On December 22, 1966, Commissioner Webb of the ICC recommended that the Commission direct inclusion of the E—L and D & H, and authorize inclusion of the B & M in the N & W. The Commissioner perceptively noted that, 'Unfortunately, the Commission's action in deciding the (Penn-Central and N & W-Nickel Plate) cases separately has tended to blur vital issues common to both proceedings.' Norfolk and Western R. Co. and New York, C. & St. L.R. Co., Merger, Finance Docket No. 21510, p. 23.
1
317 I.C.C. 261, sustained sub nom. Brotherhood of Maintenance of Way Employees v. United States, 221 F.Supp. 19 (D.C.E.D.Mich.), aff'd, per curiam, 375 U.S. 216, 84 S.Ct. 341, 11 L.Ed.2d 270 (1963).
2
324 I.C.C. 1.
3
Other communities aligned themselves with the City of Scranton in the District Court, but have either declined to seek review or, as in the case of the Township of Weehawken, have abandoned their appeal.
4
Memorandum for the United States in Nos. 642, 680, 691, p. 21.
5
He recommended that the Commission 'authorize and direct' inclusion of the E—L and D & H, and 'authorize' inclusion of the B & M. Norfolk and Western R. Co. and New York, C. & St. L.R. Co., Merger, Finance Docket No. 21510.
6
The court below speculated that the ICC should finish its work on the matter during calendar 1967. 259 F.Supp., at 969, n. 4.
7
The Commission did not, however, foreclose the applicants from seeking judicial review of any decision which might be made as to capital indemnification. 328 I.C.C., at 329.
8
See, e.g., United States v. Rock Island Motor Transit Co., 340 U.S. 419, 71 S.Ct. 382, 95 L.Ed. 391 (1951) (to keep motor routes of railroad 'auxiliary or supplemental'); New York Central Unification, 154 I.C.C. 489 (1929) (inclusion of short lines); Chicago & N.W. Ry. Co. Merger, 261 I.C.C. 672 (1946) (employee protective provisions).
9
'(I)n the absence of a clear legal prescription, a reasonable procedural decision should withstand judicial interference.' Jaffe, Judicial Control of Administrative Action 567 (1965).
10
Judge Friendly referred to 'the jockeying of these roads and of the three plaintiffs in the C & O, B & O, and N & W actions for price and position in respect of other mergers—which, despite all the words, is what we suspect these actions to be mostly about.' 259 F.Supp., at 981.
11
I do not intend to indicate any opinion as to the merits of a possible N & W—C & C affiliation.
| 78
|
386 U.S. 361
87 S.Ct. 1088
18 L.Ed.2d 151
UNITED STATES, Appellant,v.FIRST CITY NATIONAL BANK OF HOUSTON et al. UNITED STATES, Appellant, v. PROVIDENT NATIONAL BANK et al.
Nos. 914, 972.
Argued Feb. 20 and 21, 1967.
Decided March 27, 1967.
Donald F.Turner, Washington, D.C., for appellant.
David T. Searls, Houston, Tex., and Eugene J. Metzger, Washington, D.C., for appellees.
Frederic L. Ballard, Philadelphia, Pa., and Joseph J. O'Malley, Washington, D.C., for appellees.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
These civil suits were filed by the United States under § 7 of the Clayton Act, 38 Stat. 731, as amended, 64 Stat. 1125, 15 U.S.C. § 18, to prevent two bank mergers—one in Texas between the First City National Bank of Houston and the Southern National Bank of Houston, and one in Pennsylvania between the Provident National Bank and the Central Penn National Bank, both in Philadelphia.
2
The Comptroller of the Currency approved the mergers under the Bank Merger Act of 1966, 80 Stat. 7, 12 U.S.C. s 1828(c) (1964 ed., Supp. II). The United States thereupon brought these suits in the respective District Courts and the Comptroller intervened in them. The District Courts dismissed the complaints. No. 914 (unreported); No. 972, 262 F.Supp. 397. The United States appealed, 32 Stat. 823, as amended, 15 U.S.C. § 29, and we noted probable jurisdiction, 385 U.S. 1023, 1034, 87 S.Ct. 754, 778, 17 L.Ed.2d 672, 682.
I.
3
It is suggested that the complaints are defective in that they fail to state that the actions are brought under the Bank Merger Act of 1966, do not even mention the Act, and that, therefore, these cases should be remanded to allow the Government to amend the complaints.
4
The Bank Merger Act of 1966 provides that '(a)ny action brought under the antitrust laws' shall be brought within a specified time (12 U.S.C. § 1828(c) (7)(A)); it also specifies the standards to be applied by a court in a judicial proceeding challenging a bank merger 'on the ground that the merger * * * constituted a violation of any antitrust laws other than section 2 of (the Sherman Act)' (12 U.S.C. § 1828(c)(7)(B); and it provides immunity from such an attack if those standards are met. Section 1828(c)(8) provides that, '(f)or the purposes of (§ 1828(c)), the term 'antitrust laws' means * * * (the Sherman Act, the Clayton Act), and any other Acts in pari materia.' (Emphasis added.) Thus, an action challenging a bank merger on the ground of its anticompetitive effects is brought under the antitrust laws. Once an action is brought under the antitrust laws, the Bank Merger Act provides a new defense or justification to the merger's proponents 'that the anticompetitive effects of the proposed transaction are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served.' 12 U.S.C. § 1828(c)(5)(B). There is no indication that an action challenging a merger on the ground of its anticompetitive effects is bottomed on the Bank Merger Act rather than on the antitrust laws. What is apparent is that Congress intended that a defense or justification be available once it had been determined that a transaction would have anticompetitive effects, as judged by the standards normally applied in antitrust actions. Thus, the Government's failure to base the actions on the Bank Merger Act of 1966 does not constitute a defect in its pleadings. Nor is the Government's failure to mention the Bank Merger Act fatal, for, as we shall see, the offsetting community 'convenience and needs,' as specified in 12 U.S.C. § 1828(c)(5)(B), must be pleaded and proved by the defenders of the merger.
II.
5
An application for approval of the Texas merger was made to the Comptroller of the Currency pursuant to 12 U.S.C. § 1828(c)(5)(B), which provides that he shall not approve the merger 'whose effect in any section of the country may by substantially to lessen competition, or to tend to create a monopoly, or which in any other manner would be in restraint of trade, unless (he) finds that the anticompetitive effects of the proposed transaction are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served.' Requests were made of the Attorney General and the Federal Reserve Board pursuant to 12 U.S.C. § 1828(c)(4) for their views and both submitted reports to the Comptroller that the merger would have serious anticompetitive effects. The Comptroller nonetheless approved it.
6
The same procedure was followed in the Pennsylvania case, and the Attorney General and Federal Reserve submitted adverse reports. Nonetheless the Comptroller approved this merger also. And, as we have said, these civil suits were instituted to enjoin the mergers under § 7 of the Clayton Act.
7
Section 7 of the Clayton Act condemns mergers where 'the effect of such acquisition may be substantially to lessen competition.' The Bank Merger Act of 1966 did not change that standard or the machinery for obtaining the prior approval of the Comptroller and a preliminary expression of views by the Attorney General and the Federal Reserve but it added an additional standard for the Comptroller. Section 1828(c)(5)(B) says, as already noted, that no merger shall be approved where the effect 'may be substantially to lessen competition' unless the responsible agency, in this case the Comptroller, 'finds that the anti-competitive effects of the proposed transaction are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served.' And that subsection goes on to say: 'In every case, the responsible agency shall take into consideration the financial and managerial resources and future prospects of the existing and proposed institutions, and the convenience and needs of the community to be served.'
8
Section 1828(c)(7)(B) provides that in a judicial proceeding attacking a merger on the ground that it violates the antitrust laws 'the standards applied by the court shall be identical with' those the banking agencies must apply. And 12 U.S.C. § 1828(c)(7)(A) states that 'In any such action, the court shall review de novo the issues presented.' (Emphasis added.)
9
Section 1828(c)(7)(A) also provides that the commencement of an antitrust action in the courts 'shall stay the effectiveness of the agency's approval unless the court shall otherwise specifically order.' It is around these new provisions of the 1966 Act and their interplay with § 7 of the Clayton Act that the present controversy turns.
10
First is the question whether the burden of proof is on the defendant banks to establish that an anticompetitive merger is within the exception of 12 U.S.C. § 1828(c)(5)(B) or whether it is on the Government. We think it plain that the banks carry the burden. That is the general rule where one claims the benefits of an exception to the prohibition of a statute. Federal Trade Commission v. Morton Salt Co., 334 U.S. 37, 44—45, 68 S.Ct. 822, 827—828, 92 L.Ed. 1196. The House Report (No. 1221, 89th Cong., 2d Sess. U.S. Code Congressional and Administrative News, p. 1862) makes clear that antitrust standards were the norm and anticompetitive bank mergers, the exception: '* * * the bill acknowledges that the general principle of the antitrust laws—that substantially anticompetitive mergers are prohibited—applies to banks, but permits an exception in cases where it is clearly shown that a given merger is so beneficial to the convenience and needs of the community to be served * * * that it would be in the public interest to permit it.' (Emphasis added.) Id., at 3—4.
11
The sponsor of the bill that was finally enacted, Congressman Patman, flatly stated: 'It should be clearly noted that the burden of establishing such 'convenience and needs' is on the banks seeking to merge; and when we say clearly outweighed we mean outweighed by the preponderance of the evidence.' 112 Cong.Rec. 2333—2334 (Feb. 8, 1966).
12
We therefore disagree with the views of the lower courts to the contrary.
13
This problem is, of course, subtly merged with the question whether judicial review of the Comptroller's decision is in the category of other administrative rulings which are sustained unless a court is persuaded that the agency's action is clearly unsupported or not supported by substantial evidence.
14
The 1966 Act was the product of powerful contending forces, each of which in the aftermath claimed more of a victory than it deserved, leaving the controversy that finally abated in Congress to be finally resolved in the courts. So far as review of administrative agency action is concerned, we have only this to say. Prior to the 1966 Act administrative approval of bank mergers was necessary. Yet in an antitrust action later brought to enjoin them we never stopped to consider what weight, if any, the agency's determination should have in the antitrust case. See United States v. Philadelphia National Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915; United States v. First Nat. Bank & Trust Co. 376 U.S. 665, 84 S.Ct. 1033, 12 L.Ed.2d 1. Traditionally in antitrust actions involving regulated industries, the courts have never given presumptive weight to a prior agency decision, for the simple reason that Congress put such suits on a different axis than was familiar in administrative procedure. United States v. Radio Corporation of America, 358 U.S. 334, 79 S.Ct. 457, 3 L.Ed.2d 354; United States v. El Paso Natural Gas Co., 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12; United States v. Philadelphia National Bank, supra; United States v. First Nat. Bank & Trust Co., supra. We have found no indication that Congress designed judicial review differently under the 1966 Act than had earlier obtained.
15
In fact, as already noted, 'the standards applied by the court shall be identical with those that the banking agencies are directed to apply.' 12 U.S.C. § 1828(c)(7)(B). This language does not express the conventional standard, i.e., whether the agency's action is supported by substantial evidence. In the latter instance it is the agency's function to determine whether the law has been violated, while it is the court's function to ascertain whether, absent error in statutory construction, the agency's action has substantial support in the evidence.
16
There is no indication that Congress took that course here. Indeed the 1966 Act provides that the court in an antitrust action 'shall review de novo the issues presented.' (Emphasis added.) 12 U.S.C. § 1828(c)(7)(A). It is argued that the use of the word 'review' rather than 'trial' indicates a more limited scope to judicial action. The words 'review' and 'trial' might conceivably be used interchangeably. The critical words seem to us to be 'de novo' and 'issues presented.' They mean to us that the court should make an independent determination of the issues. Congressman Patman, the Chairman of the House Committee that drafted the Act, in speaking of this de novo review, said that the court would 'completely and on its own make a determination as to whether the challenged bank merger should be approved under the standard set forth in paragraph 5(B) of the bill.' He added that the 'court is not to give any special weight to the determination of the bank supervisory agency on this issue.' 112 Cong.Rec. 2335 (Feb. 8, 1966). Indeed the momentum of judicial precedents is in that direction. For immunity from antitrust laws 'is not lightly implied.' California v. Federal Power Commission, 369 U.S. 482, 485, 82 S.Ct. 901, 903, 8 L.Ed.2d 54. And the grant of administrative power to give immunity unless the agency's decision is arbitrary, capricious, or unsupported by substantial evidence, would be a long step in that direction. Moreover, the Comptroller's action is informal, no hearings in the customary sense having been held prior to the 1966 Act (United States v. Philadelphia National Bank, supra, 374 U.S. at 351, 83 S.Ct. at 1734) and none being required by Congress in the 1966 Act. We would therefore have to assume that Congress made a revolutionary innovation by making administrative action well nigh conclusive, even though no hearing had been held and no record in the customary sense created.
17
The courts may find the Comptroller's reasons persuasive or well nigh conclusive. But it is the court's judgment, not the Comptroller's, that finally determines whether the merger is legal. That was the practice prior to the 1966 Act; and we cannot find a purpose on the part of Congress to change the rule. This conclusion does not raise serious constitutional questions by making the courts perform nonjudicial tasks. The 'rule of reason,' long prevalent in the antitrust field (see, e.g., Chicago Board of Trade v. United States, 246 U.S. 231, 38 S.Ct. 242, 62 L.Ed. 683), has been administered by the courts. A determination of the effect on competition within the meaning of § 7 of the Clayton Act is a familiar judicial task. The area of 'the convenience and needs of the community to be served,' now in focus as part of the defense under the 1966 Act, is related, though perhaps remotely, to the failing-company doctrine, long known to the courts in antitrust merger cases. United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176. The appraisal of competitive factors is grist for the antitrust mill. See, e.g., United States v. Philadelphia National Bank, supra, 374 U.S. 357—367, 83 S.Ct. 1738 1743. The courts are not left at large as planning agencies. The effect on competition is the standard; and it is a familiar one.1 If the anticompetitive effect is adverse, then it is to be excused only if 'the convenience and needs of the community to be served' clearly outweigh it. We see no problems in bringing these standards into the area of judicial competence. There are no constitutional problems here not present in the 'rule of reason' cases.
18
There is left only the stay issue. As we have seen the 1966 Act provides that a timely antitrust action 'shall stay the effectiveness of the agency's approval unless the court shall otherwise specifically order.' 12 U.S.C. § 1828(c)(7)(A). The lower courts dissolved the statutory stays on dismissing the antitrust suits.
19
Our remand will direct that the stays continue until the hearings below are completed and any appeal is had. A stay of course is not mandatory under any and all circumstances. But absent a frivolous complaint by the United States, which we presume will be infrequent, a stay is essential until the judicial remedies have been exhausted. The caption of the 1966 Act states that it is designed '(t)o establish a procedure for the review of proposed bank mergers so as to eliminate the necessity for the dissolution of merged banks.' Moreover, bank mergers may not, absent emergency conditions, be consummated until 30 days after approval by the Comptroller in order to enable the Attorney General to commence an antitrust action, 12 U.S.C. § 1828(c)(6), which, apart from emergency situations, must be started within 30 days of the agency's approval, 12 U.S.C. § 1828(c)(7)(A). The legislative history is replete with references to the difficulty of unscrambling two or more banks after their merger.2 The normal procedure therefore should be maintenance of the status quo until the antitrust litigation has run its course, lest consummation take place and the unscrambling process that Congress abhorred in the case of banks be necessary.
20
Reversed.
21
Mr. Justice CLARK took no part in the consideration or decision of these cases.
1
12 U.S.C. § 1828(c)(5)(B) provides, as we have seen, that a merger shall not be approved 'whose effect in any section of the country may be substantially to lessen competition.' It is pointed out that that standard omits the phrase 'in any line of commerce' which is present in § 7 of the Clayton Act. It is argued that Congress meant that commercial banking is no longer to be considered as an area of effective competition and that the Act establishes in banking 'a market test measurable only by larger commercial realities.'
We do not reach this question and we intimate no opinion on it nor any views on the merits of these mergers or on the justifications that are urged in their support. All questions except the procedural ones treated in the opinion are reserved.
2
The Chairman of the Federal Reserve System testified in the hearings that preceded enactment of the Bank Merger Act of 1966 that 'a Federal court order cannot recreate the two banks that formerly existed * * * (N)o matter how one may feel about whether the merger should have taken place in the first instance, there is no turning back. To unscramble the resulting bank clearly poses serious problems not only for the bank but for its customers and the community.' Hearings on S. 1698 and related bills before the Subcommittee on Domestic Finance of the House Committee on Banking and Currency, 89th Cong., 1st Sess., 11. The president of the American Bankers Association declared that "(u)nmerging' a bank after the two banks have operated as a single unit is nightmarish even in the abstract.' Hearings on S. 1698 before a Subcommittee of the Senate Committee on Banking and Currency, 89th Cong., 1st Sess., 63. Senator Robertson stated, 'you are dealing with a physical impossibility,' and 'the community gets hurt,' when divestiture is attempted in a bank merger case. Id., at 4. Senator Proxmire spoke of 'the agony and the inequity and the financial loss, disruption of the economy in the community, of being required * * * to unscramble.' Id., at 202.
| 78
|
386 U.S. 351
87 S.Ct. 1095
18 L.Ed.2d 143
RAILROAD TRANSFER SERVICE, INC., Petitioner,v.The CITY OF CHICAGO et al.
No. 209.
Argued Feb. 13, 1967.
Decided March 27, 1967.
Amos M. Mathews, Chicago, Ill., for petitioner.
Raymond F. Simon, Chicago, Ill., for respondents.
Mr. Justice BLACK delivered the opinion of the Court.
1
This case arises from more than a decade of controversy between Railroad Transfer Service, Inc., and the City of Chicago over the city's persistent efforts to regulate Transfer's business, under contract with the railroads, of daily transporting by motor vehicle thousands of interstate railroad passengers between the city's rail terminals. In 1955 the railroads hired Transfer to replace another motor carrier in performing this interterminal transfer service. Bent on blocking this replacement, the city then amended Chapter 28 of its Municipal Code, which had before been primarily directed at regulating taxicab companies, to require that new companies seeking to perform the transfer service obtain licenses from the city by demonstrating, among other things, their ability to satisfy the public convenience and necessity. Because the city threatened to fine Transfer and arrest its drivers if it operated without a city license for each vehicle, Transfer, without attempting to obtain such licenses, and the railroads brought suit against the city to challenge the validity of the public-convenience-and-necessity section of the ordinance. In City of Chicago v. Atchison, T. & S.F.R. Co., 357 U.S. 77, 78 S.Ct. 1063, 2 L.Ed.2d 1174, rejecting the city's argument that the challenge was premature, we held that section 'completely invalid insofar as it applies to Transfer * * *.' Id., at 89, 78 S.Ct. at 1070.
2
In 1959, after our decision in Atchison, the city repealed the invalid section, added some new provisions, and amended or left unchanged others which clearly applied to Transfer but were not specifically dealt with in our Atchison opinion. The amended ordinance, still making it unlawful for Transfer to operate without obtaining licenses from the city,1 provides that an applicant for a license must, among other things:2 pay a license fee,3 hire only Chicago residents as its drivers,4 maintain its principal place of business in Chicago,5 and file a detailed written application.6 Upon receipt of an application, the city must investigate the applicant's 'character and reputation * * * as a law abiding citizen' and his 'financial ability' to render 'safe and comfortable' service, to replace and maintain equipment, and to pay all judgments arising out of vehicle operation. If the city finds that the applicant is 'qualified' and that the vehicle for which the license is sought is in 'safe and proper condition,' the amended ordinance requires the city to issue the license.7 Licenses are valid for only one year, and under the amended ordinance a licensee must annually go through this detailed application procedure. Outstanding licenses are revocable on a number of grounds at the city's discretion.8 Finally, the ordinance provides a fine of up to $100 for each violation of any of its provisions and specifies that each day such violation continues shall be deemed a separate offense.9
3
With the ordinance thus amended, the city in 1960 demanded that Transfer apply for licenses. Transfer did so, after unsuccessfully attempting to pay the license fees under protest, and then brought this present lawsuit against the city, asking the District Court to declare the above-mentioned provisions of the ordinance invalid as unconstitutional burdens on interstate commerce and as unconstitutional attempts to regulate in an area preempted by the Interstate Commerce Act, 24 Stat. 379, as amended, 49 U.S.C. § 1 et seq. While the case was pending, the city again demanded that Transfer cease and desist operations unless it 'fully complied' with the ordinance10 and again amended its ordinance to impose new requirements on Transfer such as filing detailed financial reports and opening its books and records for city inspection.11 Nevertheless, the District Court dismissed Transfer's action as premature. Because Transfer had continued to operate by paying its license fees into court and because the city had taken no further action to enforce its ordinance, the Court of Appeals affirmed, holding Transfer's complaint premature and the ordinance valid on its face. 358 F.2d 55. We granted certiorari to consider these two holdings and conclude that the action is not premature and that the ordinance is invalid.
4
First. The prematurity arguments which the city makes here are similar to the ones it made and we rejected in Atchison. Though the city argues that some of the challenged provisions of the ordinance do not apply to Transfer,12 the Court of Appeals clearly considered them applicable. Though the city argues that it does not retain as much power to deny Transfer a license as Transfer fears,13 it is clear that 'the City claims at least some power * * * to decide whether a motor carrier may transport passengers from one station to another.' 357 U.S., at 85, 78 S.Ct., at 1068 (emphasis added.) That was enough in Atchison to enable Transfer to attack the public-convenience-and-necessity requirement, even though the city there disclaimed any power to deny a license because of economic considerations. It is enough here. It is difficult to imagine a controversy more actual, alive, and ripe than this one. It has lasted for more than a decade. Though Transfer obtained its 1960 licenses after it filed this lawsuit to challenge the ordinance, it has continued to operate only by paying the license fees into court. The city has continually—and even while this case was pending—amended its ordinance to regulate Transfer further and has continually demanded that Transfer fully comply with the ordinance. Though the city now disclaims any power to 'stop' Transfer's operations, it does not give up its power under the ordinance to fine Transfer and arrest its drivers for operating without licenses or its power to revoke for discretionary reasons all licenses which Transfer may obtain.14 In short, although Transfer continues to operate, it is only at the city's reluctant sufference.15 If the ordinance is invalid insofar as it applies to Transfer, then, as we said in Atchison, 'that company was not obligated to apply for a * * * (license) and submit to the administrative procedures incident thereto before bringing this action.' 357 U.S., at 89, 78 S.Ct., at 1070.
5
Second. The rationale of Atchison compels our holding that the provisions of the ordinance now challenged by Transfer cannot be validly applied to it. In Atchison, recognizing that Transfer's 'service is an integral part of interstate railroad transportation authorized and subject to regulation under the Interstate Commerce Act,' id., at 89, 78 S.Ct., at 1070, we pointed to various provisions of the Act16 which in our view completely precluded the city 'from exercising any veto power over such transfer service,' id., at 85, 78 S.Ct., at 1068 (emphasis added). The Act, as we said in Atchison, gives the railroads, not the city, the 'discretion to determine who may transfer interstate passengers and baggage between railroad terminals.' Id., at 84—85, 78 S.Ct., at 1068. That power, that discretion, is precisely what the comprehensive licensing scheme of the amended ordinance purports to reserve to the city. It matters not that the city no longer seeks to exercise that power by requiring a showing of public convenience and necessity. The total effect of the current ordinance on Transfer's operations and the burdens it places on interstate commerce are the same. As we recognized in Atchison, the city retains authority to insist that Transfer obey 'general safety regulations' such as traffic signals and speed limits. Id., at 88, 78 S.Ct., at 1069. Many of the provisions of the current ordinance, such as the requirements that Transfer maintain its principal place of business in Chicago, have its drivers reside in Chicago, file annually the most detailed financial reports, and open its books and records for city inspection, bear no resemblance to general safety regulations such as traffic signals and speed limits. Other provisions, if standing alone and enforced by means other than this particular licensing program, might possibly be justified as safety regulations.17 Castle v. Hayes Freight Lines, 348 U.S. 61, 75 S.Ct. 191, 99 L.Ed. 68. But we need not decide that question now, for here each of these provisions is an integral part of, and cannot be divorced from, the comprehensive licensing scheme that the city seeks to impose as a whole on Transfer. See Adams Express Co. v. State of New York, 232 U.S. 14, 34 S.Ct. 203, 58 L.Ed. 483. Here the city seeks to enforce each and all of these related requirements by denial of a license for noncompliance and then criminal sanctions for operation without a license. This is the 'veto power' which Atchison held the city may not exercise.
6
Reversed.
7
Mr. Justice HARLAN would affirm the judgment below substantially for the reasons given in the opinion of Chief Judge Hastings for the Court of Appeals, 358 F.2d 55.
1
§ 28—2. (The provisions herein cited are from the current Municipal Code.)
2
No vehicle may be licensed until it has been inspected by the city and found to be 'in safe operating condition and to have adequate * * * facilities which are clean and in good repair for the comfort and convenience of passengers' (§ 28—4), unless it has at least two doors on each side (§ 28—4.1), and unless the licensee has a specified amount of public liability, property damage, and workmen's compensation insurance evidenced by policies filed with the city (§ 28—12). The validity of these provisions is not specifically challenged by Transfer.
3
Section 28—7 imposes an annual fee of $40 for each terminal vehicle, clearly defined in § 28—1(p) to include Transfer's vehicles, and provides that such fee 'shall be applied to the cost of issuing such license, including, without being limited to, the investigations, inspections and supervision necessary therefor, and to the cost of regulating all operations of public passenger vehicles * * *.'
4
Provisions of Chapter 28 require that drivers be public chauffeurs licensed by the city, §§ 28—1(l), 28—9, and several provisions of Chapter 28.1 appear to make residence in the city a condition to being licensed as a chauffeur, e.g., §§ 28.1—3, 28.1 9, and 28.1—14.
5
Section 28—5.1, added for the first time in 1959.
6
Section 28—5, describing the information to be contained in the application, was amended in 1959 to provide:
'If the applicant is affiliated or to become affiliated or identified with any person (defined elsewhere to include a corporation) by * * * service agreement, the application shall contain the full name, Chicago business address and telephone number of said affiliate, and a copy of the agreement with said affiliate, if any, shall be filed with the application.'
Since Transfer operates under a service contract with the railroads, it is conceivable that the railroads might be considered affiliates of Transfer. However, it is clear that the provisions of the ordinance requiring an affiliate to maintain its principal place of business in Chicago, to register with the Commissioner, to carry certain insurance, and to comply with all provisions of the ordinance and rules issued by the Commissioner, §§ 28—5.1, 28—12.1, 28—13.1, cannot be validly applied to the railroads, and the city does not now suggest that they can.
7
§ 28—6:
'Upon receipt of an application for a public passenger vehicle license the commissioner shall cause an investigation to be made of the character and reputation of the applicant as a law abiding citizen; the financial ability of the applicant to render safe and comfortable transportation service, to maintain or replace the equipment for such service and to pay all judgments and awards which may be rendered for any cause arising out of the operation of a public passenger vehicle during the license period. If the commissioner shall find that the application, and all other statements and documents required to be filed with said application have been properly executed, and that the applicant is qualified to pursue the occupation of a cabman or coachman (defined in § 28—1(m) to include the proprietor of a terminal vehicle), the commissioner shall issue to him and in his name a license for each public passenger vehicle applied for, to terminate on the 31st day of December following the date of issue, provided that each said vehicle is registered in applicant's name and is in safe and proper condition at the time the license is issued.' The italicized sentence was added in 1959.
8
Prior to 1963 a license was subject to discretionary revocation only if it was obtained by an application in which a material fact was omitted or stated falsely. § 28—15.1. This section was amended in 1963 to authorize revocation also where a licensee fails 'to carry out any representation made to the Commissioner before the issuance of such license,' and to make clear that revocation under this section may extend to all licenses held by a person who obtains any single license by misrepresentation.
Under § 28—14, the city's vehicle commissioner may suspend a license at any time that a vehicle becomes 'unsafe for operation or * * * unfit for public use,' and '(i)n determining whether any * * * vehicle is unfit for public use the commissioner shall give consideration to its effect on the health, comfort and convenience of passengers and its public appearance on the streets of the city.'
9
§ 28—32.
10
The city also ordered Transfer's drivers to submit to medical examinations and fingerprinting.
11
§ 28—30.1:
'Every cabman, corporation and affiliate shall keep and provide accurate books and records of account of his operations at his place of business in the city. On or before May 1 of each year, every cabman, corporation and affiliate shall file with the Commissioner a profit and loss statement for the preceding calendar year, showing all his earnings and expenditures for operation, maintenance and repair of property, depreciation expense, premiums paid for workmen's compensation and public liability insurance, and taxes paid for unemployment insurance and social security, and all state and local license fees, property taxes and Federal income taxes, and a balance sheet taken at the close of said year.
'The Commissioner * * * shall have access to the property, books, contracts, accounts and records during normal business hours at said place of business, for such information as may be required for the effective administration and enforcement of the provisions of this chapter * * *.
'In addition to the foregoing reports, each cabman shall within thirty days after the six months' period ended December 31 and within thirty days after the six months' period ended June 30 of each year file a sworn statement with the Commissioner showing his gross fares collected and his operating expenses for the six months immediately preceding said dates.'
The italicized provisions were added in 1963. As first enacted in 1959, the section was applicable only to taxicab companies.
12
For instance, the city argues that § 28—30.1 does not apply to Transfer. But, as the Court of Appeals apparently recognized, the 1963 amendments of this section make its first two paragraphs applicable to Transfer. See note 11, supra.
13
The city argues that its commissioner may only consider the so-called 'safety factors' specifically enumerated in § 28—6 in determining whether Transfer is 'qualified' to perform the interterminal service. See n. 7, supra. Transfer, perhaps understandably, is afraid that the word 'qualified' gives the commissioner unlimited discretion to consider the very same nonsafety factors that he previously could consider under the invalid public-convenience-and-necessity provision.
14
At the same time the city was assuring the District Court that its threat to stop Transfer was an 'idle' one, it was adding a new provision to the ordinance which seems custom-tailored to make Transfer's already precarious position more precarious. Section 28—31.2, added in 1963, provides:
'No license which has been revoked, surrendered, cancelled or not applied for within a period of seven months after such license application is due, shall hereafter be issued.'
15
The city argues that Transfer cannot challenge the principal-place-of-business requirement because Transfer now has its principal, and only, place of business in Chicago. The provision quoted in n. 14, supra, makes it clear that neither Transfer, which might want to change its place of business, nor the railroads, which might want to hire another transfer agent or perform the service themselves, can afford to make any change prior to challenging the place-of-business requirement. Under § 28 15, '(i)f any licensee abandons his * * * place of business in the city * * * all his licenses shall be revoked.' After such revocation, no new licenses may be issued.
16
In particular, we mentioned 49 U.S.C. §§ 1(4) and 3(4) requiring the railroads to provide reasonable and proper facilities for the transfer of passengers between terminals, § 15(3) giving the Interstate Commerce Commission power to establish such service, and § 302(c)(2) providing that the interterminal service conducted by any motor carrier under contract with a railroad shall be regarded as transportation performed by the railroad and shall be subject to the same comprehensive scheme of regulation which applies to such transportation. Furthermore, under a proviso of § 302(c), the ICC retains power to treat interterminal service as motor carrier service under § 304 for the purpose of regulating 'qualifications and maximum hours of service of employees and safety of operation and equipment.'
Although, at the time we decided Atchison, the ICC had not adopted any special regulations for interterminal transfer service, we there noted that it could do so at any time under the Act, id., at 86—87, 78 S.Ct., at 1068—1069, and since then, the ICC has, indeed, promulgated under § 304 certain safety regulations which are specifically applicable to motor carriers engaged in such service. See generally 49 CFR § 190.1 et seq.
17
In Atchison we noted that the city retains authority to 'exact reasonable fees for * * * use of the local streets.' Id., at 88, 78 S.Ct., at 1070. The license fees exacted here, however, were for the purpose of enforcing this invalid licensing scheme. See note 3, supra. Transfer cannot be compelled to pay them.
| 89
|
386 U.S. 479
87 S.Ct. 1088
18 L.Ed.2d 223
Louis BOSTICK, Petitioner,v.SOUTH CAROLINA et al.
No. 647.
Supreme Court of the United States
Argued March 20, 1967.
March 27, 1967
Matthew J. Perry, Columbia, S.C., for petitioner.
Everett N. Brandon, Columbia, S.C., for respondents.
PER CURIAM.
1
The judgment of the Supreme Court of South Carolina, 247 S.C. 22, 145 S.E.2d 439, is reversed. Whitus v. State of Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967).
| 12
|
386 U.S. 523
87 S.Ct. 1199
18 L.Ed.2d 270
STATE FARM FIRE & CASUALTY CO. et al., Petitioners,v.Kathryn TASHIRE et al.
No. 391.
Argued Feb. 14 and 15, 1967.
Decided April 10, 1967.
[Syllabus from pages 523-524 intentionally omitted]
Otto R. Skopil, Jr., Salem, Or., and John Gordon Gearin, Portland, Or., for petitioners.
Nick Chaivoe and James Griswold, Portland Or., for respondents.
Mr. Justice FORTAS delivered the opinion of the Court.
1
Early one September morning in 1964, a Greyhound bus proceeding northward through Shasta County, California, collided with a southbound pickup truck. Two of the passengers aboard the bus were killed. Thirty-three others were injured, as were the bus driver, the driver of the truck and its lone passenger. One of the dead and 10 of the injured passengers were Canadians; the rest of the individuals involved were citizens of five American States. The ensuing litigation led to the present case, which raises important questions concerning administration of the interpleader remedy in the federal courts.
2
The litigation began when four of the injured passengers filed suit in California state courts, seeking damages in excess of $1,000,000. Named as defendants were Greyhound Lines, Inc., a California corporation; Theron Nauta, the bus driver; Ellis Clark, who drove the truck; and Kenneth Glasgow, the passenger in the truck who was apparently its owner as well. Each of the individual defendants was a citizen and resident of Oregon. Before these cases could come to trial and before other suits were filed in California or elsewhere, petitioner State Farm Fire & Casualty Company, an Illinois corporation, brought this action in the nature of interpleader in the United States District Court for the District of Oregon.
3
In its complaint State Farm asserted that at the time of the Shasta County collision it had in force an insurance policy with respect to Ellis Clark, driver of the truck, providing for bodily injury liability up to $10,000 per person and $20,000 per occurrence and for legal representation of Clark in actions covered by the policy. It asserted that actions already filed in California and others which it anticipated would be filed far exceeded in aggregate damages sought the amount of its maximum liability under the policy. Accordingly, it paid into court the sum of $20,000 and asked the court (1) to require all claimants to establish their claims against Clark and his insurer in this single proceeding and in no other, and (2) to discharge State Farm from all further obligations under its policy—including its duty to defend Clark in lawsuits arising from the accident. Alternatively, State Farm expressed its conviction that the policy issued to Clark excluded from coverage accidents resulting from his operation of a truck which belonged to another and was being used in the business of another. The complaint, therefore, requested that the court decree that the insurer owed no duty to Clark and was not liable on the policy, and it asked the court to refund the $20,000 deposit.
4
Joined as defendants were Clark, Glasgow, Nauta, Greyhound Lines, and each of the prospective claimants. Jurisdiction was predicated upon 28 U.S.C. § 1335, the federal interpleader statute,1 and upon general diversity, of citizenship, there being diversity between two or more of the claimants to the fund and between State Farm and all of the named defendants.
5
An order issued, requiring the defendants to show cause why they should not be restrained from filing or prosecuting 'any proceeding in any state or United States Court affecting the property or obligation involved in this interpleader action, and specifically against the plaintiff and the defendant Ellis D. Clark.' Personal service was effected on each of the American defendants, and registered mail was employed to reach the 11 Canadian claimants. Defendants Nauta, Greyhound, and several of the injured passengers responded, contending that the policy did cover this accident and advancing various arguments for the position that interpleader was either impermissible or inappropriate in the present circumstances. Greyhound, however, soon switched sides and moved that the court broaden any injunction to include Nauta and Greyhound among those who could not be sued except within the confines of the interpleader proceeding.
6
When a temporary injunction along the lines sought by State Farm was issued by the United States District Court for the District of Oregon, the present respondents moved to dismiss the action and, in the alternative, for a change of venue—to the Northern District of California, in which district the collision had occurred. After a hearing, the court declined to dissolve the temporary injunction, but continued the motion for a change of venue. The injunction was later broadened to include the protection sought by Greyhound, but modified to permit the filing—although not the prosecution—of suits. The injunction, therefore, provided that all suits against Clark, State Farm, Greyhound, and Nauta be prosecuted in the interpleader proceeding.
7
On interlocutory appeal,2 the Court of Appeals for the Ninth Circuit reversed. 363 F.2d 7. The court found it unnecessary to reach respondents' contentions relating to service of process and the scope of the injunction, for it concluded that interpleader was not available in the circumstances of this case. It held that in States like Oregon which do not permit 'direct action' suits against insurance companies until judgments are obtained against the insured, the insurance companies may not invoke federal interpleader until the claims against the insured, the alleged tortfeasor, have been reduced to judgment. Until that is done, said the court, claimants with unliquidated tort claims are not 'claimants' within the meaning of § 1335, nor are they '(p) ersons having claims against the plaintiff' within the meaning of Rule 22 of the Federal Rules of Civil Procedure.3 Id., at 10. In accord with that view, it directed dissolution of the temporary injunction and dismissal of the action. Because the Court of Appeals' decision on this point conflicts with those of other federal courts,4 and concerns a matter of significance to the administration of federal interpleader, we granted certiorari. 385 U.S. 811, 87 S.Ct. 90, 17 L.Ed.2d 52 (1966). Although we reverse the decision of the Court of Appeals upon the jurisdictional question, we direct a substantial modification of the District Court's injunction for reasons which will appear.
I.
8
Before considering the issues presented by the petition for certiorari, we find it necessary to dispose of a question neither raised by the parties nor passed upon by the courts below. Since the matter concerns our jurisdiction, we raise it on our own motion. Treinies v. Sunshine Mining Co., 308 U.S. 66, 70, 60 S.Ct. 44, 47, 84 L.Ed. 85 (1939). The interpleader statute, 28 U.S.C. § 1335, applies where there are 'Two or more adverse claimants, of diverse citizenship * * *.' This provision has been uniformly construed to require only 'minimal diversity,' that is, diversity of citizenship between two or more claimants, without regard to the circumstance that other rival claimants may be co-citizens.5 The language of the statute, the legislative purpose broadly to remedy the problems posed by multiple claimants to a single fund, and the consistent judicial interpretation tacitly accepted by Congress, persuade us that the statute requires no more. There remains, however, the question whether such a statutory construction is consistent with Article III of our Constitution, which extends the federal judicial power to 'Controversies * * * between citizens of different States * * * and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.' In Strawbridge v. Curtiss, 3 Cranch 267, 2 L.Ed. 435 (1806), this Court held that the diversity of citizenship statute required 'complete diversity': where co-citizens appeared on both sides of a dispute, jurisdiction was lost. But Chief Justice Marshall there purported to construe only 'The words of the act of congress,' not the Constitution itself.6 And in a variety of contexts this Court and the lower courts have concluded that Article III poses no obstacle to the legislative extension of federal jurisdiction, founded on diversity, so long as any two adverse parties are not co-citizens.7 Accordingly, we conclude that the present case is properly in the federal courts.
II.
9
We do not agree with the Court of Appeals that, in the absence of a state law or contractual provision for 'direct action' suits against the insurance company, the company must wait until persons asserting claims against its insured have reduced those claims to judgment before seeking to invoke the benefits of federal interpleader. That may have been a tenable position under the 19268 and 1936 interpleader statutes.9 These statutes did not carry forward the language in the 1917 Act authorizing interpleader where adverse claimants 'may claim' benefits as well as where they 'are claiming' them.10 In 1948, however, in the revision of the Judicial Code, the 'may claim' language was restored.11 Until the decision below, every court confronted by the question has concluded that the 1948 revision removed whatever requirement there might previously have been that the insurance company wait until at least two claimants reduced their claims to judgments.12 The commentators are in accord.13
10
Considerations of judicial administration demonstrate the soundness of this view which, in any event, seems compelled by the language of the present statute, which is remedial and to be liberally construed. Were an insurance company required to await reduction of claims to judgment, the first claimant to obtain such a judgment or to negotiate a settlement might appropriate all or a disproportionate slice of the fund before his fellow claimants were able to establish their claims. The difficulties such a race to judgment pose for the insurer,14 and the unfairness which may result to some claimants, were among the principal evils the interpleader device was intended to remedy.15
III.
11
The fact that State Farm had properly invoked the interpleader jurisdiction under § 1335 did not, however, entitle it to an order both enjoining prosecution of suits against it outside the confines of the interpleader proceeding and also extending such protection to its insured, the alleged tortfeasor. Still less was Greyhound Lines entitled to have that order expanded so as to protect itself and its driver, also alleged to be tortfeasors, from suits brought by its passengers in various state or federal courts. Here, the scope of the litigation, in terms of parties and claims, was vastly more extensive than the confines of the 'fund,' the deposited proceeds of the insurance policy. In these circumstances, the mere existence of such a fund cannot, by use of interpleader, be employed to accomplish purposes that exceed the needs of orderly contest with respect to the fund.
12
There are situations, of a type not present here, where the effect of interpleader is to confine the total litigation to a single forum and proceeding. One such case is where a stakeholder, faced with rival claims to the fund itself, acknowledges—or denies his liability to one or the other of the claimants.16 In this situation, the fund itself is the target of the claimants. It marks the outer limits of the controversy. It is, therefore, reasonable and sensible that interpleader, in discharge of its office to protect the fund, should also protect the stakeholder from vexatious and multiple litigation. In this context, the suits sought to be enjoined are squarely within the language of 28 U.S.C. § 2361, which provides in part:
13
'In any civil action of interpleader or in the nature of interpleader under section 1335 of this title, a district court may issue its process for all claimants and enter its order restraining them from instituting or prosecuting any proceeding in any State or United States court affecting the property, instrument or obligation involved in the interpleader action * * *.' (Emphasis added.)
14
But the present case is another matter. Here, an accident has happened. Thirty-five passengers or their representatives have claims which they wish to press against a variety of defendants: the bus company, its driver, the owner of the truck, and the truck driver. The circumstance that one of the prospective defendants happens to have an insurance policy is a fortuitous event which should not of itself shape the nature of the ensuing litigation. For example, a resident of California, injured in California aboard a bus owned by a California corporation should not be forced to sue that corporation anywhere but in California simply because another prospective defendant carried an insurance policy. And an insurance company whose maximum interest in the case cannot exceed $20,000 and who in fact asserts that it has no interest at all, should not be allowed to determine that dozens of tort plaintiffs must be compelled to press their claims—even those claims which are not against the insured and which in no event could be satisfied out of the meager insurance fund—in a single forum of the insurance company's choosing. There is nothing in the statutory scheme, and very little in the judicial and academic commentary upon that scheme, which requires that the tail be allowed to wag the dog in this fashion.
15
State Farm's interest in this case, which is the fulcrum of the interpleader procedure, is confined to its $20,000 fund. That interest receives full vindication when the court restrains claimants from seeking to enforce against the insurance company any judgment obtained against its insured, except in the interpleader proceeding itself. To the extent that the District Court sought to control claimants' lawsuits against the insured and other alleged tortfeasors, it exceeded the powers granted to it by the statutory scheme.
16
We recognize, of course, that our view of interpleader means that it cannot be used to solve all the vexing problems of multiparty litigation arising out of a mass tort. But interpleader was never intended to perform such a function, to be an all-purpose 'bill of peace.'17 Had it been so intended, careful provision would necessarily have been made to insure that a party with little or no interest in the outcome of a complex controversy should not strip truly interested parties of substantial rights—such as the right to choose the forum in which to establish their claims, subject to generally applicable rules of jurisdiction, venue, service of process, removal, and change of venue. None of the legislative and academic sponsors of a modern federal interpleader device viewed their accomplishment as a 'bill of peace,' capable of sweeping dozens of lawsuits out of the various state and federal courts in which they were brought and into a single interpleader proceeding. And only in two reported instances has a federal interpleader court sought to control the underlying litigation against alleged tortfeasors as opposed to the allocation of a fund among successful tort plaintiffs. See Commercial Union Insurance Co. of New York v. Adams, 231 F.Supp. 860 (D.C.S.D.Ind.1964) (where there was virtually no objection and where all of the basic tort suits would in any event have been prosecuted in the forum state), and Pan American Fire & Casualty Co. v. Revere, 188 F.Supp. 474 (D.C.E.D.La.1960). Another district court, on the other hand, has recently held that it lacked statutory authority to enjoin suits against the alleged tortfeasor as opposed to proceedings against the fund itself. Travelers Indemnity Co. v. Greyhound Lines, Inc., 260 F.Supp. 530 (D.C.W.D.La.1966).
17
In light of the evidence that federal interpleader was not intended to serve the function of a 'bill of peace' in the context of multiparty litigation arising out of a mass tort, of the anomalous power which such a construction of the statute would give the stakeholder, and of the thrust of the statute and the purpose it was intended to serve, we hold that the interpleader statute did not authorize the injunction entered in the present case. Upon remand, the injunction is to be modified consistently with this opinion.18
IV.
18
The judgment of the Court of Appeals is reversed, and the case is remanded to the United States District Court for proceedings consistent with this opinion.
19
It is so ordered.
20
Judgment of Court of Appeals reversed and case remanded to the District Court.
21
Mr. Justice DOUGLAS, dissenting.
22
While I agree with the Court's view as to 'minimal diversity' and that the injunction, if granted, should run only against prosecution of suits against the insurer, I feel that the use which we today allow to be made of the federal interpleader statute,1 28 U.S.C. § 1335, is, with all deference, unwarranted. How these litigants are 'claimants' to this fund in the statutory sense is indeed a mystery. If they are not 'claimants' of the fund,2 neither are they in the category of those who 'are claiming' or who 'may claim' to be entitled to it.
23
This insurance company's policy provides that it will 'pay on behalf of the insured all sums which the insured shall become legally obligated to pay.' To date the insured has not become 'legally obligated' to pay any sum to any litigant. Since nothing is owed under the policy, I fail to see how any litigant can be a 'claimant' as against the insurance company. If that is doubtful the doubt is resolved by two other conditions:
24
(1) The policy states '(n)o action shall lie against the company * * * until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company.'
25
(2) Under California law where the accident happened and under Oregon law where the insurance contract was made, a direct action against the insurer is not allowable until after a litigant receives a final judgment against the insured.3
26
Thus under this insurance policy as enforced in California and in Oregon a 'claimant' against the insured can become a 'claimant' against the insurer only after final judgment against the insured or after a consensual written agreement of the insurer, a litigant, and the insured. Neither of those two events has so far happened.4
27
This construction of the word 'claimant' against the fund is borne out, as the Court of Appeals noted, by Rule 22(1) of the Federal Rules of Civil Procedure.5 That Rule, also based on diversity of citizenship, differs only in the district where the suit may be brought and in the reach of service of process, as the Court points out.6 But it illuminates the nature of federal interpleader for it provides that only '(p)ersons having claims against the plaintiff (insurer) may be joined as defendants and required to interplead.'
28
'Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability.'
29
Can it be that we have two kinds of interpleader statutes as between which an insurance company can choose: one that permits 'claimants' against the insurer ('persons having claims against the plaintiff') to be joined and the other that permits 'claimants' against the insured to be joined for the benefit of the insurer even though they may never be 'claimants' against the insurer? I cannot believe that Congress launched such an irrational scheme.
30
The Court rests heavily on the fact that the 1948 Act contains the phrase 'may claim,' while the 1926 and 1936 interpleader statutes contained the phrase 'are claiming.' From this change in language the Court infers that Congress intended to allow an insurance company to interplead even though a judgment has not been entered against the insured and there is no direct-action statute. This inference is drawn despite the fact that the Reviser's Note contains no reference to the change in wording or its purpose; the omission is dismissed as 'inadvertent.' But it strains credulity to suggest that mention would not have been made of such a drastic change, if in fact Congress intended to make it. And, despite the change in wording, under the 1948 Act there must be 'adverse claimants * * * (who) are claiming or may claim to be entitled to such money * * *, or to any one or more of the benefits arising by virtue of any * * * policy * * *.' Absent a direct-action statute, the victims are not 'claimants' against the insurer until their claims against the insured have been reduced to judgment. Understandably, the insurance company wants the best of two worlds. It does not want an action against it until judgment against its insured. But, at the same time, it wants the benefits of an interpleader statute. Congress could of course confer such a benefit. But it is not for this Court to grant dispensations from the effects of the statutory scheme which Congress has erected.
31
I would construe its words in the normal sense and affirm the Court of Appeals.
1
28 U.S.C. § 1335(a) provides: 'The district courts shall have original jurisdiction of any civil action of interpleader or in the nature of interpleader filed by any person, firm, or corporation, association, or society having in his or its custody or possession money or property of the value of $500 or more, or having issued a * * * policy of insurance * * * of value or amount of $500 or more * * * if
'(1) Two or more adverse claimants, of diverse citizenship as defined in section 1332 of this title, are claiming or may claim to be entitled to such money or property, or to any one or more of the benefits arising by virtue of any * * * policy * * *; and if (2) the plaintiff has * * * paid * * * the amount due under such obligation into the registry of the court, there to abide the judgment of the court * * *.'
2
28 U.S.C. § 1292(a)(1).
3
We need not pass upon the Court of Appeals' conclusions with respect to the interpretation of interpleader under Rule 22, which provides that '(1) Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability * * *' First, as we indicate today, this action was properly brought under § 1335. Second, State Farm did not purport to invoke Rule 22. Third, State Farm could not have invoked it in light of venue and service of process limitations. Whereas statutory interpleader may be brought in the district where any claimant resides (28 U.S.C. § 1397), Rule interpleader based upon diversity of citizenship may be brought only in the district where all plaintiffs or all defendants reside (28 U.S.C. § 1391(a)). And whereas statutory interpleader enables a plaintiff to employ nationwide service of process (28 U.S.C. § 2361), service of process under Rule 22 is confined to that provided in Rule 4. See generally 3 Moore, Federal Practice 22.04.
With respect to the Court of Appeals' views on Rule 22, which seem to be shared by our Brother DOUGLAS, compare Underwriters at Lloyd's v. Nichols, 363 F.2d 357 (C.A.8th Cir. 1966), and A/S Krediit Pank v. Chase Manhattan Bank, 155 F.Supp. 30 (D.C.S.D.N.Y.1957), aff'd, 303 F.2d 648 (C.A.2d Cir. 1962), with National Casualty Co. v. Insurance Co. of North America, 230 F.Supp. 617 (D.C.N.D.Ohio 1964), and American Indemnity Co. v. Hale, 71 F.Supp. 529 (D.C.W.D.Mo.1947). See also 3 Moore, Federal Practice 22.04, at 3008 and n. 4.
4
See, e.g., Travelers Indemnity Co. v. Greyhound Lines, Inc., 260 F.Supp. 530 (D.C.W.D.La.1966); Commercial Union Insurance Co. of New York v. Adams, 231 F.Supp. 860 (D.C.S.D.Ind.1964); Pan American Fire & Casualty Co. v. Revere, 188 F.Supp. 474 (D.C.E.D.La.1960); Onyx Refining Co. v. Evans Production Corp., 182 F.Supp. 253 (D.C.N.D.Tex.1959). Although Travelers and Revere were brought in Louisiana, a State which authorizes 'direct action' suits against insurance companies, the statute was not relied upon in Travelers (see 260 F.Supp., at 533, n. 3), and furnished only an alternative ground in Revere (see 188 F.Supp., at 482—483).
The only post-1948 case relied upon by the Court of Appeals and respondents, National Casualty Co. v. Insurance Co. of North America, 230 F.Supp. 617 (D.C.N.D.Ohio 1964), turns out to be of little assistance with respect to statutory interpleader since that court denied statutory interpleader solely on the ground that all claimants were citizens of Ohio and hence lacked the required diversity of citizenship. Id., at 619.
5
See, e.g., Haynes v. Felder, 239 F.2d 868, 872—875 (C.A.5th Cir. 1957); Holcomb v. Aetna Life Insurance Co., 255 F.2d 577, 582 (C.A.10th Cir.), cert. denied sub nom. Fleming v. Aetna Life Insurance Co., 358 U.S. 879, 79 S.Ct. 118, 3 L.Ed.2d 110 (1958); Cramer v. Phoenix Mut.Life Ins. Co., 91 F.2d 141, 146—147 (C.A.8th Cir.), cert. denied, 302 U.S. 739, 58 S.Ct. 141, 82 L.Ed. 571 (1937); Commercial Union Insurance Co. of New York v. Adams, 231 F.Supp. 860, 863 (D.C.S.D.Ind.1964); 3 Moore, Federal Practice 22.09, at 3033.
6
Subsequent decisions of this Court indicate that Strawbridge is not to be given an expansive reading. See, e.g., Louisville C. & C. Railroad Co. v. Letson, 2 How. 497, 554—556, 11 L.Ed. 353 (1844), expressing the view that in 1839 Congress had in fact acted to 'rid the courts of the decision in the case of Strawbridge and Curtis.' Id., at 556.
7
See, e.g., American Fire & Cas. Co. v. Finn, 341 U.S. 6, 10, n. 3, 71 S.Ct. 534, 538, 95 L.Ed. 702 (1951), and Barney v. Latham, 103 U.S. 205, 213, 26 L.Ed. 514 (1881), construing the removal statute, now 28 U.S.C. § 1441(c); Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 41 S.Ct. 338, 65 L.Ed. 673 (1921), concerning class actions; Wichita R.R. & Light Co. v. Public Util. Comm., 260 U.S. 48, 43 S.Ct. 51, 67 L.Ed. 124 (1922), dealing with intervention by co-citizens. Fulldress arguments for the constitutionality of 'minimal diversity' in situations like interpleader, which arguments need not be rehearsed here, are set out in Judge Tuttle's opinion in Haynes v. Felder, 239 F.2d, at 875—876; in Judge Weinfeld's opinion in Twentieth Century-Fox Film Corp. v. Taylor, 239 F.Supp. 913, 918—921 (D.C.S.D.N.Y.1965); and in ALI, Study of the Division of Jurisdiction Between State and Federal Courts 180—190 (Official Draft, Pt. 1, 1965); 3 Moore, Federal Practice 22.09, at 3033—3037; Chafee, Federal Interpleader Since the Act of 1936, 49 Yale L.J. 377, 393—406 (1940); Chafee, Interpleader in the United States Courts, 41 Yale L.J. 1134, 1165 1169 (1932). We note that the American Law Institute's proposals for revision of the Judicial Code to deal with the problem of multiparty, multijurisdiction litigation are predicated upon the permissibility of 'minimal diversity' as a jurisdictional basis.
8
44 Stat. 416 (1926), which added casualty companies to the enumerated categories of plaintiffs able to bring interpleader, and provided for the enjoining of proceedings in other courts.
9
49 Stat. 1096 (1936), which authorized 'bill(s) in the nature of interpleader,' meaning those in which the plaintiff is not wholly disinterested with respect to the fund he has deposited in court. See Chafee, The Federal Interpleader Act of 1936: I, 45 Yale L.J. 963 (1936).
10
39 Stat. 929 (1917). See Klaber v. Maryland Casualty Co., 69 F.2d 934, 938—939, 106 A.L.R. 617 (C.A.8th Cir. 1934), which held that the omission in the 1926 Act of the earlier statute's 'may claim' language required the denial of interpleader in the face of unliquidated claims (alternative holding).
11
Although the Reviser's Note did not refer to the statutory change or its purpose, we have it on good authority that it was the omission in the Note rather than the statutory change which was inadvertent. See 3 Moore, Federal Practice 22.08, 3025 3026, n. 13. And it was widely assumed that restoration of the 'may claim' language would have the effect of overruling the holding in Klaber, supra, that one may not invoke interpleader to protect against unliquidated claims. See e.g., Chafee, 45 Yale L.J., at 1163—1167; Chafee, Federal Interpleader Since the Act of 1936, 49 Yale L.J. 377, 418—420 (1940). In circumstances like these, the 1948 revision of the Judicial Code worked substantive changes. Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207 (1949).
12
See cases listed in n. 4.
13
3 Moore, Federal Practice 22.08, at 3024—3025; Keeton, Preferential Settlement of Liability-Insurance Claims, 70 Harv.L.Rev. 27, 41—42 (1956).
14
See Keeton, op. cit. supra, n. 13.
15
The insurance problem envisioned at the time was that of an insurer faced with conflicting but mutually exclusive claims to a policy, rather than an insurer confronted with the problem of allocating a fund among various claimants whose independent claims may exceed the amount of the fund. S.Rep. No. 558, 74th Cong., 1st Sess., 2—3, 7, 8 (1935); Chafee, Modernizing Interpleader, 30 Yale L.J. 814, 818—819 (1921).
16
This was the classic situation envisioned by the sponsors of interpleader. See n. 15, supra.
17
There is not a word in the legislative history suggesting such a purpose. See S.Rep. No. 558, 74th Cong., 1st Sess. (1935). And Professor Chafee, upon whose work the Congress heavily depended, has written that little thought was given to the scope of the 'second stage' of interpleader, to just what would be adjudicated by the interpleader court. See Chafee, Broadening the Second Stage of Federal Interpleader, 56 Harv.L.Rev. 929, 944—945 (1943). We note that in Professor Chafee's own study of the bill of peace as a device for dealing with the problem of multiparty litigation, he fails even to mention interpleader. See Chafee, Some Problems of Equity 149—198 (1950). In his writing on interpleader, Chafee assumed that the interpleader court would allocate the fund 'among all the claimants who get judgment within a reasonable time * * *.' Chafee, The Federal Interpleader Act of 1936: II, 45 Yale L.J. 1161, 1165 (1936). See also Chafee, 49 Yale L.J., at 420—421.
18
We find it unnecessary to pass upon respondents' contention, raised in the courts below but not passed upon by the Court of Appeals, that interpleader should have been dismissed on the ground that the 11 Canadian claimants are 'indispensable parties' who have not been properly served. The argument is that 28 U.S.C. § 2361 provides the exclusive mode of effecting service of process in statutory interpleader and that § 2361—which authorizes a district court to 'issue its process for all claimants' but subsequently refers to service of 'such process' by marshals 'for the respective districts where the claimants reside or may be found'—does not permit service of process beyond the Nation's borders. Since our decision will require basic reconsideration of the litigation by the parties as well as the lower courts, there appears neither need nor necessity to determine this question at this time. We intimate no view as to the exclusivity of § 2361, whether it authorizes service of process in foreign lands, whether in light of the limitations we have imposed on the interpleader court's injunctive powers the Canadian claimants are in fact 'indispensable parties' to the interpleader proceeding itself, or whether they render themselves amenable to service of process under § 2361 when they come into an American jurisdiction to establish their rights with respect either to the alleged tortfeasors or to the insurance fund. See 2 Moore, Federal Practice 4.20, at 1091—1105.
1
'(a) The district courts shall have original jurisdiction of any civil action of interpleader or in the nature of interpleader filed by any person, firm, or corporation, association, or society having in his or its custody or possession money or property of the value of $500 or more, or having issued a note, bond, certificate, policy of insurance, or other instrument of value or amount of $500 or more * * * if
'(1) Two or more adverse claimants, of diverse citizenship as defined in section 1332 of this title, are claiming or may claim to be entitled to such money or property, or to any one or more of the benefits arising by virtue of any note, bond, certificate, policy or other instrument, or arising by virtue of any such obligation; and if (2) the plaintiff has deposited such money or property * * * into the registry of the court, there to abide the judgment of the court * * *.'
2
Under the policy issued by State Farm, it promises '(t)o pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of (A) bodily injury sustained by other persons * * * caused by accident arising out of the ownership, maintenance or use, including loading or unloading, of the owned automobile * * *.' The insured will 'become legally obligated to pay' only if he has been found to be at fault for the accident, or if the victim's claim has been settled in accord with the policy terms. The claim against the insurance company is thus contingent on a finding that the insured was at fault or a settlement. This is unlike the situation where the insurance company has issued a policy such as a workmen's compensation policy which insures the insured for liability imposed in the absence of fault.
3
See Calif.Ins.Code § 11580(b)(2); Ore.Rev.Stat. § 23.230.
4
In those States having a direct-action statute, allowing an action against the insurer prior to judgment against the insured, interpleader jurisdiction can be sustained absent a judgment against the insured. The direct-action statute gives the injured party the status of a 'claimant' against the insurer. See, e.g., Pan American Fire & Casualty Co. v. Revere, 188 F.Supp. 474, 482—483.
5
Rule 22(1) provides in part:
6
See n. 3 of the Court's opinion.
| 89
|
386 U.S. 568
87 S.Ct. 1224
18 L.Ed.2d 303
FEDERAL TRADE COMMISSION, Petitioner,v.The PROCTER & GAMBLE COMPANY.
No. 342.
Argued Feb. 13, 1967.
Decided April 11, 1967.
Sol. Gen. Thurgood Marshall, for petitioner.
Frederick W. R. Pride and Kenneth C. Royall, New York City, for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This is a proceeding initiated by the Federal Trade Commission charging that respondent, Procter & Gamble Co., had acquired the assets of Clorox Chemical Co. in violation of § 7 of the Clayton Act, 38 Stat. 731, as amended by the Celler-Kefauver Act, 64 Stat. 1125. 15 U.S.C. § 18.1 The charge was that Procter's acquisition of Clorox might substantially lessen competition or tend to create a monopoly in the production and sale of household liquid bleaches.
2
Following evidentiary hearings, the hearing examiner rendered his decision in which he concluded that the acquisition was unlawful and ordered divestiture. On appeal, the Commission reversed, holding that the record as then constituted was inadequate, and remanded to the examiner for additional evidentiary hearings. 58 F.T.C. 1203. After the additional hearings, the examiner again held the acquisition unlawful and ordered divestiture. The Commission affirmed the examiner and ordered divestiture. 63 F.T.C. —-. The Court of Appeals for the Sixth Circuit reversed and directed that the Commission's complaint be dismissed. 358 F.2d 74. We find that the Commission's findings were amply supported by the evidence, and that the Court of Appeals erred.
3
As indicated by the Commission in its painstaking and illuminating report, it does not particularly aid analysis to talk of this merger in conventional terms, namely, horizontal or vertical or conglomerate. This merger may most appropriately be described as a 'product-extension merger,' as the Commission stated. The facts are not disputed, and a summary will demonstrate the correctness of the Commission's decision.
4
At the time of the merger, in 1957, Clorox was the leading manufacturer in the heavily concentrated household liquid bleach industry. It is agreed that household liquid bleach is the relevant line of commerce. The product is used in the home as a germicide and disinfectant, and, more importantly, as a whitening agent in washing clothes and fabrics. It is a distinctive product with no close substitutes. Liquid bleach is a low-price, high-turnover consumer product sold mainly through grocery stores and supermarkets. The relevant geographical market is the Nation and a series of regional markets. Because of high shipping costs and low sales price, it is not feasible to ship the product more than 300 miles from its point of manufacture. Most manufacturers are limited to competition within a single region since they have but one plant. Clorox is the only firm selling nationally; it has 13 plants distributed throughout the Nation. Purex, Clorox's closest competitor in size, does not distribute its bleach in the northeast or mid-Atlantic States; in 1957, Purex's bleach was available in less than 50% of the national market.
5
At the time of the acquisition, Clorox was the leading manufacturer of household liquid bleach, with 48.8% of the national sales—annual sales of slightly less than $40,000,000. Its market share had been steadily increasing for the five years prior to the merger. Its nearest rival was Purex, which manufactures a number of products other than household liquid bleaches, including abrasive cleaners, toilet soap, and detergents. Purex accounted for 15.7% of the household liquid bleach market. The industry is highly concentrated; in 1957, Clorox and Purex accounted for almost 65% of the Nation's household liquid bleach sales, and, together with four other firms, for almost 80%. The remaining 20% was divided among over 200 small producers. Clorox had total assets of $12,000,000; only eight producers and assets in excess of $1,000,000 and very few had assets of more than $75,000.
6
In light of the territorial limitations on distribution, national figures do not give an accurate picture of Clorox's dominance in the various regions. Thus, Clorox's seven principal competitors did no business in New England, the mid-Atlantic States, or metropolitan New York. Clorox's share of the sales in those areas was 56%, 72% and 64% respectively. Even in regions where its principal competitors were active, Clorox maintained a dominate position. Except in metropolitan Chicago and the westcentral States Clorox accounted for at least 39%, and often a much higher percentage, of liquid bleach sales.
7
Since all liquid bleach is chemically identical, advertising and sales promotion are vital. In 1957 Clorox spent almost $3,700,000 on advertising, imprinting the value of its bleach in the mind of the consumer. In addition, it spent $1,700,000 for other promotional activities. The Commission found that these heavy expenditures went far to explain why Clorox maintained so high a market share despite the fact that its brand, though chemically indistinguishable from rival brands, retailed for a price equal to or, in many instances, higher than its competitors.
8
Procter is a large, diversified manufacturer of low-price, high-turnover household products sold through grocery, drug, and department stores. Prior to its acquisition of Clorox, it did not produce household liquid bleach. Its 1957 sales were in excess of $1,100,000,000 from which it realized profits of more than $67,000,000; its assets were over $500,000,000. Procter has been marked by rapid growth and diversification. It has successfully developed and introduced a number of new products. Its primary activity is in the general area of soaps, detergents, and cleansers; in 1957, of total domestic sales, more than one-half (over $500,000,000) were in this field. Procter was the dominant factor in this area. It accounted for 54.4% of all packaged detergent sales. The industry is heavily concentrated—Procter and its nearest competitors, Colgate-Palmolive and Lever Brothers, account for 80% of the market.
9
In the marketing of soaps, detergents, and cleansers, as in the marketing of household liquid bleach, advertising and sales promotion are vital. In 1957, Procter was the Nation's largest advertiser, spending more than $80,000,000 on advertising and an additional $47,000,000 on sales promotion. Due to its tremendous volume, Procter receives substantial discounts from the media. As a multiproduct producer Procter enjoys substantial advantages in advertising and sales promotion. Thus, it can and does feature several products in its promotions, reducing the printing, mailing, and other costs for each product. It also purchases network programs on behalf of several products, enabling it to give each product network exposure at a fraction of the cost per product that a firm with only one product to advertise would incur.
10
Prior to the acquisition, Procter was in the course of diversifying into product lines related to its basic detergentsoap-cleanser business. Liquid bleach was a distinct possibility since packaged detergents—Procter's primary product line—and liquid bleach are used complementarily in washing clothes and fabrics, and in general household cleaning. As noted by the Commission:
11
'Packaged detergents—Procter's most important product category—and household liquid bleach are used complementarily, not only in the washing of clothes and fabrics, but also in general household cleaning, since liquid bleach is a germicide and disinfectant as well as a whitener. From the consumer's viewpoint, then, packaged detergents and liquid bleach are closely related products. But the area of relatedness between products of Procter and of Clorox is wider. Household cleansing agents in general, like household liquid bleach, are low-cost, high-turnover household consumer goods marketed chiefly through grocery stores and pre-sold to the consumer by the manufacturer through mass advertising and sales promotions. Since products of both parties to the merger are sold to the same customers, at the same stores, and by the same merchandising methods, the possibility arises of significant integration at both the marketing and distribution levels.' 63 F.T.C. —-, —-.
12
The decision to acquire Clorox was the result of a study conducted by Procter's promotion department designed to determine the advisability of entering the liquid bleach industry. The initial report noted the ascendancy of liquid bleach in the large and expanding household bleach market, and recommended that Procter purchase Clorox rather than enter independently. Since a large investment would be needed to obtain a satisfactory market share, acquisition of the industry's leading firm was attractive. 'Taking over the Clorox business * * * could be a way of achieving a dominant position in the liquid bleach market quickly, which would pay out reasonably well.' 63 F.T.C., at —-. The initial report predicted that Procter's 'sales, distribution and manufacturing setup' could increase Clorox's share of the markets in areas where it was low. The final report confirmed the conclusions of the initial report and emphasized that Procter would make more effective use of Clorox's advertising budget and that the merger would facilitate advertising economies. A few months later, Procter acquired the assets of Clorox in the name of a wholly owned subsidiary, the Clorox Company, in exchange for Procter stock.
13
The Commission found that the acquisition might substantially lessen competition. The findings and reasoning of the Commission need be only briefly summarized. The Commission found that the substitution of Procter with its huge assets and advertising advantages for the already dominant Clorox would dissuade new entrants and discourage active competition from the firms already in the industry due to fear of retaliation by Procter. The Commission thought it relevant that retailers might be induced to give Clorox preferred shelf space since it would be manufactured by Procter, which also produced a number of other products marketed by the retailers. There was also the danger that Procter might underprice Clorox in order to drive out competition, and subsidize the underpricing with revenue from other products. The Commission carefully reviewed the effect of the acquisition on the structure of the industry, noting that '(t)he practical tendency of the * * * merger * * * is to transform the liquid bleach industry into an arena of big business competition only, with the few small firms that have not disappeared through merger eventually falling by the wayside, unable to compete with their giant rivals.' 63 F.T.C., at —-. Further, the merger would seriously diminish potential competition by eliminating Procter as a potential entrant into the industry. Prior to the merger, the Commission found, Procter was the most likely prospective entrant, and absent the merger would have remained on the periphery, restraining Clorox from exercising its market power. If Procter had actually entered, Clorox's dominant position would have been eroded and the concentration of the industry reduced. The Commission stated that it had not placed reliance on post-acquisition evidence in holding the merger unlawful.
14
The Court of Appeals said that the Commission's finding of illegality had been based on 'treacherous conjecture,' mere possibility and suspicion. 358 F.2d 74, 83. It dismissed the fact that Clorox controlled almost 50% of the industry, that two firms controlled 65%, and that six firms controlled 80% with the observation that '(t)he fact that in addition to the six * * * producers sharing eighty per cent of the market, there were two hundred smaller producers * * * would not seem to indicate anything unhealthy about the market conditions.' Id., at 80. It dismissed the finding that Procter, with its hugh resources and prowess, would have more leverage than Clorox with the statement that it was Clorox which had the 'knowhow' in the industry, and that Clorox's finances were adequate for its purposes. Ibid. As for the possibility that Procter would use its tremendous advertising budget and volume discounts to push Clorox, the court found 'it difficult to base a finding of illegality on discounts in advertising.' 358 F.2d at 81. It rejected the Commission's finding that the merger eliminated the potential competition of Procter because '(t)here was no reasonable probability that Procter would have entered the household liquid bleach market but for the merger.' 358 F.2d, at 83. 'There was no evidence tending to prove that Procter ever intended to enter this field on its own.' 358 F.2d, at 82. Finally, '(t)here was no evidence that Procter at any time in the past engaged in predatory practices, or that it intended to do so in the future.' Ibid.
15
The Court of Appeals also heavily relied on post-acquisition 'evidence * * * to the effect that the other producers subsequent to the merger were selling more bleach for more money than ever before' (358 F.2d, at 80), and that '(t)here (had) been no significant change in Clorox's market share in the four years subsequent to the merger' (ibid.), and concluded that (t)his evidence certainly does not prove anticompetitive effects of the merger.' Id., at 82. The Court of Appeals, in our view, misapprehended the standards for its review and the standards applicable in a § 7 proceeding.
16
Section 7 of the Clayton Act was intended to arrest the anticompetitive effects of market power in their incipiency. The core question is whether a merger may substantially lessen competition, and necessarily requires a prediction of the merger's impact on competition, present and future. See Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510; United States v. Philadelphia National Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915. The section can deal only with probabilities, not with certainties. Brown Shoe Co. v. United States, supra, 370 U.S. at 323, 82 S.Ct. at 1522; United States v. Penn-Olin Chemical Co., 378 U.S. 158, 84 S.Ct. 1710, 12 L.Ed.2d 775. And there is certainly no requirement that the anticompetitive power manifest itself in anticompetitive action before § 7 can be called into play. If the enforcement of § 7 turned on the existence of actual anticompetitive practices, the congressional policy of thwarting such practices in their incipiency would be frustrated.
17
All mergers are within the reach of § 7, and all must be tested by the same standard, whether they are classified as horizontal, vertical, conglomerate2 or other. As noted by the Commission, this merger is neither horizontal, vertical, nor conglomerate. Since the products of the acquired company are complementary to those of the acquiring company and may be produced with similar facilities, marketed through the same channels and in the same manner, and advertised by the same media, the Commission aptly called this acquisition a 'product-extension merger':
18
'By this acquisition * * * Procter has not diversified its interests in the sense of expanding into a substantially different, unfamiliar market or industry. Rather, it has entered a market which adjoins, as it were, those markets in which it is already established, and which is virtually indistinguishable from them inso far as the problems and techniques of marketing the product to the ultimate consumer are concerned. As a high official of Procter put it, commenting on the acquisition of Clorox, 'While this is a completely new business for us, taking us for the first time into the marketing of a household bleach and disinfectant, we are thoroughly at home in the field of manufacturing and marketing low priced, rapid turn-over consumer products." 63 F.T.C. —-, —-.
19
The anticompetitive effects with which this product-extension merger is fraught can easily be seen: (1) the substitution of the powerful acquiring firm for the smaller, but already dominant, firm may substantially reduce the competitive structure of the industry by raising entry barriers and by dissuading the smaller firms from aggressively competing; (2) the acquisition eliminates the potential competition of the acquiring firm.
20
The liquid bleach industry was already oligopolistic before the acquisition, and price competition was certainly not as vigorous as it would have been if the industry were competitive. Clorox enjoyed a dominant position nationally, and its position approached monopoly proportions in certain areas. The existence of some 200 fringe firms certainly does not belie that fact. Nor does the fact, relied upon by the court below, that, after the merger, producers other than Clorox 'were selling more bleach for more money than ever before.' 358 F.2d at 80. In the same period, Clorox increased its share from 48.8% to 52%. The interjection of Procter into the market considerably changed the situation. There is every reason to assume that the smaller firms would become more cautious in competing due to their fear of retaliation by Procter. It is probable that Procter would become the price leader and that oligopoly would become more rigid.
21
The acquisition may also have the tendency of raising the barriers to new entry. The major competitive weapon in the successful marketing of bleach is advertising. Clorox was limited in this area by its relatively small budget and its inability to obtain substantial discounts. By contract, Procter's budget was much larger; and, although it would not devote its entire budget to advertising Clorox, it could divert a large portion to meet the short-term threat of a new entrant. Procter would be able to use its volume discounts to advantage in advertising Clorox. Thus, a new entrant would be much more reluctant to face the giant Procter than it would have been to face the smaller Clorox.3
22
Possible economies cannot be used as a defense to illegality. Congress was aware that some mergers which lessen competition may also result in economies but it struck the balance in favor of protecting competition. See Brown Shoe Co. v. United States, supra, 370 U.S. at 344, 82 S.Ct. 1534.
23
The Commission also found that the acquisition of Clorox by Procter eliminated Procter as a potential competitor. The Court of Appeals declared that this finding was not supported by evidence because there was no evidence that Procter's management had ever intended to enter the industry independently and that Procter had never attempted to enter. The evidence, however, clearly shows that Procter was the most likely entrant. Procter had recently launched a new abrasive cleaner in an industry similar to the liquid bleach industry, and had wrested leadership from a brand that had enjoyed even a larger market share than had Clorox. Procter was engaged in a vigorous program of diversifying into product lines closely related to its basic products. Liquid bleach was a natural avenue of diversification since it is complementary to Procter's products, is sold to the same customers through the same channels, and is advertised and merchandised in the same manner. Procter had substantial advantages in advertising and sales promotion, which, as we have seen, are vital to the success of liquid bleach. No manufacturer had a patent on the product or its manufacture, necessary information relating to manufacturing methods and processes were readily available, there was no shortage of raw material, and the machinery and equipment required for a plant of efficient capacity were available at reasonable cost. Procter's management was experienced in producing and marketing goods similar to liquid bleach. Procter had considered the possibility of independently entering but decided against it because the acquisition of Clorox would enable Procter to capture a more commanding share of the market.
24
It is clear that the existence of Procter at the edge of the industry exerted considerable influence on the market. First, the market behavior of the liquid bleach industry was influenced by each firm's predictions of the market behavior of its competitors, actual and potential. Second, the barriers to entry by a firm of Procter's size and with its advantages were not significant. There is no indication that the barriers were so high that the price Procter would have to charge would be above the price that would maximize the profits of the existing firms. Third, the number of potential entrants was not so large that the elimination of one would be insignificant. Few firms would have the temerity to challenge a firm as solidly entrenched as Clorox. Fourth, Procter was found by the Commission to be the most likely entrant. These findings of the Commission were amply supported by the evidence.
25
The judgment of the Court of Appeals is reversed and remanded with instructions to affirm and enforce the Commission's order.
26
It is so ordered.
27
Reversed and remanded.
28
Mr. Justice STEWART and Mr. Justice FORTAS took no part in the consideration or decision of this case.
29
Mr. Justice HARLAN, concurring.
30
I agree that the Commission's order should be sustained, but I do not share the majority opinion's view that a mere 'summary will demonstrate the correctness of the Commission's decision' nor that '(t)he anticompetitive effects with which this product-extension merger is frought can easily be seen.' I consider the case difficult within its own four corners, and beyond that, its portents for future administrative and judicial application of § 7 of the Clayton Act to this kind of merger important and far-reaching. From both standpoints more refined analysis is required before putting the stamp of approval on what the Commission has done in this case. It is regrettable to see this Court as it enters this comparatively new field of economic adjudication starting off with what has almost become a kind of res ipsa loquitur approach to antitrust cases.
31
The type of merger represented by the transaction before us is becoming increasingly important as large corporations seek to diversify their operations, see Blair, The Conglomerate Merger in Economics and Law, 46 Geo.L.J. 672, and '(c)ompanies looking for new lines of business tend to buy into those fields with which they have at least some degree of familiarity, and where economies and efficiencies from assimilation are at least possible.' Turner, Conglomerate Mergers and Section 7 of the Clayton Act, 78 Harv.L.Rev. 1313, 1315. Application of § 7 to such mergers has been troubling to the Commission and the lower courts. The author of the Commission's exhaustive opinion in this case later explained that '(t)he elaborateness of the opinion * * * reflected the Commission's awareness that it was entering relatively uncharted territory.' General Foods Corp., 3 Trade Reg.Rep. 17,46 5 (Commissioner Elman, dissenting, at 22,745). The Sixth Circuit was equally troubled in this case by the lack of standards in the area and had difficulty in perceiving any effect on competition from the merger since 'Procter merely stepped into the shoes of Clorox.' 358 F.2d 74, 82. And in the somewhat similar situation presented to the Seventh Circuit in Ekco Products Co. v. F.T.C., 347 F.2d 745, the need for comprehensive consideration of the problem by this Court was laid bare. The lower court there attempted to review the Commission action before it as narrowly as possible and refused to formulate principles which might control other cases. It said:
32
'If we are to have a different standard or set of rules, aside from those applying to vertical and horizontal combinations, to test the illegality of conglomerate mergers and product-extension acquisitions in cases brought under Section 7 of the Clayton Act, we feel compelled to look to the Supreme Court for guidance.' 347 F.2d, at 751.
33
I thus believe that it is incumbent upon us to make a careful study of the facts and opinions below in this case, and at least to embark upon the formulation of standards for the application of § 7 to mergers which are neither horizontal nor vertical and which previously have not been considered in depth by this Court.1 I consider this especially important in light of the divisions which have arisen in the Commission itself in similar cases decided subsequent to this one. See General Foods Corp., supra; National Tea Co., 3 Trade Reg.Rep. 17,463. My prime difficulty with the Court's opinion is that it makes no effort in this direction at all, and leaves the Commission, lawyers, and businessmen at large as to what is to be expected of them in future cases of this kind.
I.
34
The Court's opinion rests on three separate findings of anticompetitive effect. The Court first declares that the market here was 'oligopolistic' and that interjection of Procter would make the oligopoly 'more rigid' because '(t) here is every reason to assume that the smaller firms would become more cautious in competing due to their fear of retaliation by Procter.' The Court, however, does not indicate exactly what reasons lie behind this assumption or by what standard such an effect is deemed 'reasonably probable.' It could equally be assumed that smaller firms would become more aggressive in competing due to their fear that otherwise Procter might ultimately absorb their markets and that Procter, as a new entrant in the bleach field, was vulnerable to attack.
35
But assumption is no substitute for reasonable probability as a measure of illegality under § 7, see Brown Shoe Co. v. United States, 370 U.S. 294, 323, 82 S.Ct. 1502, 1522, 8 L.Ed.2d 510, and Congress has not mandated the Commission or the courts 'to campaign against 'superconcentration' in the absence of any evidence of harm to competition.' Turner, supra, at 1395. Moreover, even if an effect of this kind were reasonably predictable, the Court does not explain why the effect on competition should be expected to be the substantial one that § 7 demands. The need for substantiality cannot be ignored, for as a leading economist has warned:
36
'If a society were to intervene in every activity which might possibly lead to a reduction of competition, regulation would be ubiquitous and the whole purpose of a public policy of competition would be frustrated.' Stigler, Mergers and Preventive Antitrust Policy, 104 U.Pa.L.Rev. 176, 177.
37
The Court next stresses the increase in barriers to new entry into the liquid bleach field caused primarily, it is thought, by the substitution of the larger advertising capabilities of Procter for those of Clorox. Economic theory would certainly indicate that a heightening of such barriers has taken place. But the Court does not explain why it considers this change to have significance under § 7, nor does it indicate when or how entry barriers affect competition in a relevant market. In this case, for example, the difficulties of introducing a new nationally advertised bleach were already so great that even a great company like Procter, which the Court finds the most likely entrant, believed that entry would not 'pay out.'2 Why then does the Court find that a further increase of incalculable proportions in such barriers substantially lessens competition? Such a conclusion at least needs the support of reasoned analysis.3
38
Finally, the Court places much emphasis on the loss to the market of the most likely potential entrant, Procter. Two entirely separate anticompetitive effects might be traced to this loss, and the Court fails to distinguish between them. The first is simply that loss of the most likely entrant increases the operative barriers to entry by decreasing the likelihood that any firm will attempt to surmount them.4 But this effect merely reinforces the Court's previous entry-barrier argument, which I do not find convincing as presented. The second possible effect is that a reasonably probable entrant has been excluded from the market and a measure of horizontal competition has been lost. Certainly the exclusion of what would promise to be an important independent competitor from the market may be sufficient, in itself, to support a finding of illegality under § 7, United States v. El Paso Natural Gas Co., 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12, when the market has few competitors. The Commission, however, expressly refused to find a reasonable probability that Procter would have entered this market on its own, and the Sixth Circuit was in emphatic agreement. The Court certainly cannot mean to set its judgment on the facts against the concurrent findings below, and thus it seems clear to me that no consequence can be attached to the possibility of loss of Procter as an actual competitor.5 Cf. United States v. Penn-Olin Chemical Co., 378 U.S. 158, 175, 84 S.Ct. 1710, 1719, 12 L.Ed.2d 775.
39
Thus I believe, with all respect, that the Court has failed to make a convincing analysis of the difficult problem presented, and were no more to be said in favor of the Commission's order I would vote to set it aside.
II.
40
The Court, following the Commission, points out that this merger is not a pure 'conglomerate' merger but may more aptly be labelled a 'product-extension' merger. No explanation, however, is offered as to why this distinction has any significance and the Court in fact declares that all mergers, whatever their nature, 'must be tested by the same standard'. But no matter what label is attached to this transaction, it certainly must be recognized that the problem we face is vastly different from those which concerned the Court in Brown Shoe, supra, and United States v. Philadelphia National Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915. And though it is entirely proper to assert that the words of § 7 are the only standard we have with which to work, it is equally important to recognize that different sets of circumstances may call for fundamentally different tests of substantial anticompetitive effect. Compare United States v. Philadelphia National Bank, supra, with F.T.C. v. Consolidated Foods Corp., 380 U.S. 592, 85 S.Ct. 1220, 14 L.Ed.2d 95.
41
At the outset, it seems to me that there is a serious question whether the state of our economic knowledge is sufficiently advanced to enable a sure-footed administrative or judicial determination to be made a priori of substantial anticompetitive effect in mergers of this kind. It is clear enough that Congress desired that conglomerate and product-extension mergers be brought under § 7 scrutiny, but well versed economists have argued that such scrutiny can never lead to a valid finding of illegality.
42
'Where a business concern buys out a firm producing * * * (a product) which is neither competing, nor a raw material for its own product * * * there is no competition between them to be extinguished, nor the possibility of fewer alternatives for any customer or supplier anywhere. * * * Perhaps Congress intended to stop conglomerate mergers but their act does not.' Adelman, quoted in Blair, supra, at 674.
43
See also Bowman, Contrasts in Antitrust Theory: II, 65 Col.L.Rev. 417, 421.
44
Lending strength to this position is the fact that such mergers do provide significant economic benefits which argue against excessive controls being imposed on them. The ability to merge brings large firms into the market for capital assets and encourages economic development by holding out the incentive of easy and profitable liquidation to others. Here, for example, the owners of Clorox who had built the business, were able to liquefy their capital on profitable terms without dismantling the enterprise they had created. Also merger allows an active management to move rapidly into new markets bringing with its intervention competitive stimulation and innovation. It permits a large corporation to protect its shareholders from business fluctuation through diversification, and may facilitate the introduction of capital resources, allowing significant economies of scale, into a stagnating market. See, Turner, supra, at 1317.
45
At the other end of the spectrum, it has been argued that the entry of a large conglomerate enterprise may have a destructive effect on competition in any market. Edwards, Conglomerate Bigness as a Source of Power, in Business Concentration and Price Policy, Report of National Bureau of Economic Research, p. 331. The big company is said to be able 'outbid, outspend, or outlose the small one * * *.' Id., at 335. Thus it is contended that a large conglomerate may underprice in one market, adversely affecting competition, and subsidize the operation by benefits accruing elsewhere.6 It is also argued that the large company generates psychological pressure which my force smaller ones to follow its pricing policies, and that its very presence in the market may discourage entrants or make lending institutions unwilling to finance them. Edwards, supra, at 348; see Bok, Section 7 of the Clayton Act and the Merging of Law and Economics, 74 Harv.L.Rev. 226, 275.7 While 'business behavior is too complex and varied to permit of a single generalized explanation,' Stocking, Comment, Business Concentration and Price Policy, Edwards, supra, at 352, these observations do indicate that significant dangers to competition may be presented by some conglomerate and product-extension mergers. Further, congressional concern in enacting § 7 extended not only to anticompetitive behavior in particular markets, but also to the possible economic dominance of large companies which had grown through merger. Thus, while fully agreeing that mergers of this kind are not to be regarded as something entirely set apart from scrutiny under § 7, I am of the view that when this Court does undertake to establish the standards for judging their legality, it should proceed with utmost circumspection. Meanwhile, with this case before us, I cannot escape the necessity of venturing my own views as to some of the governing standards.
III.
46
In adjudicating horizontal and vertical combinations under § 7 where the effects on competition are reasonably obvious and substantiality is the key issue, the responsible agencies have moved away from an initial emphasis on comprehensive scrutiny and adopted for more precise rules of thumb which provide advantages of administrative convenience and predictability for the business world. See Brodley, Oligopoly Power Under the Sherman and Clayton Acts—From Economic Theory to Legal Policy, 19 Stan.L.Rev. 285.8 A conglomerate case, however, is not only too new to our experience to allow the formulation of simple rules but also involves 'concepts of economic power and competitive effect that are still largely unformulated.' This makes clear the need for 'full investigation and analysis, whatever the cost in delay or immediate ineffectiveness.' Edwards, Tests or Probable Effect Under the Clayton Act, 9 Antitrust Bull. 369, 377. But cf. Blair, supra, at 700. Certainly full scale investigation is supported by the considerations adverted to in Part II of this opinion and the basic fact that 'the statute does not leave us free to strike down mergers on the basis of sheer speculation or a general fear of bigness.' General Foods Corp., supra, at 22,749 (Commissioner Elman, dissenting.)
47
Procter, contending that the broadest possible investigation is required here, and noting 'the relative poverty of (economic) information about industrial institutions and the relations among different company complexes, as well as the sketchiness of our understanding of methods of competition in specific industries and markets,' Bock, The Relativity of Economic Evidence in Merger Cases—Emerging Decisions Force the Issue, 63 Mich.L.Rev. 1355, 1369, has insisted throughout this proceeding that anticompetitive effects must be proved in fact from post-merger evidence in order for § 7 to be applied. The Court gives little attention to this contention, but I think it must be considered seriously, both because it is arguable and because it was, in a sense, the main source of difference between the Commission and the Sixth Circuit.
48
In its initial decision, the Commission remanded the proceeding to the Examiner for the express purpose of taking additional evidence on the post-merger situation in the liquid bleach industry. The Commission first held that the record before it, which contained all the information upon which the second Commission decision and the Court rely, was insufficient to support the finding of a § 7 violation. 58 F.T.C. 1203. The Commission's subsequent opinion, handed down by an almost entirely changed Commission, held post-merger evidence generally irrelevant and 'proper only in the unusual case in which the structure of the market has changed radically since the merger * * *.' 63 F.T.C. -. Market structure changes, rather than evidence of market behavior, were held to be the key to a § 7 analysis.
49
In support of this position, the Commission noted that dependence on post-merger evidence would allow controls to be evaded by the dissimulation of market power during the period of observation. For example, Procter had been aware of the § 7 challenge almost from the date of the merger,9 and it would be unrealistic, so reasoned the Commission, to assume that market power would be used adversely to competition during the pendency of the proceeding.
50
The Commission also emphasized the difficulty of unscrambling a completed merger, and the need for businessmen to be able to make at least some predictions as to the legality of their actions when formulating future market plans. Cf. Bromley, Business' View of the du Pont-General Motors Decision, 46 Geo.L.J. 646, 653—654. Finally, the Commission pointed to the strain which would be placed upon its limited enforcement resources by a requirement to assemble large amounts of post-merger data.
51
The Sixth Circuit was in disagreement with the second Commission's view. It held that '(a)ny relevant evidence must be considered in a Section 7 case * * *. The extent to which inquiry may be made into post-merger conditions may well depend on the facts of the case, and where the evidence is obtained it should not be ignored.' 358 F.2d, at 83. The court characterized as 'pure conjecture' the finding that Procter's behavior might have been influenced by the pendency of the proceeding. Ibid.
52
If § 7 is to serve the purposes Congress intended for it, we must, I think, stand with the Commission on this issue.10 Only by focusing on market structure can we begin to formulate standards which will allow the responsible agencies to give proper consideration to such mergers and allow businessmen to plan their actions with a fair degree of certainty. In the recent amendments to the Bank Merger Act, Congress has indicated its approval of rapid adjudication based on premerger conditions,11 and all agency decisions hinging on competitive effects must be made without benefit of post-combination results. The value of post-merger evidence seems more than offset by the difficulties encountered in obtaining it. And the post-merger evidence before us in this proceeding is at best inconclusive.
53
Deciding that § 7 inquiry in conglomerate or product-extension merger cases should be directed toward reasonably probable changes in market structure does not, however, determine how that inquiry should be narrowed and focused. The Commission and the Court isolate two separate structural elements, the degree of concentration in the existing market and the 'condition of entry.' The interplay of these two factors is said to determine the existence and extent of market power, since the 'condition of entry' determines the limits potential competition places on the existing market. It must be noted, however, that economic theory teaches that potential competition will have no effect on the market behavior of existing firms unless present market power is sufficient to drive the market price to the point where entry would become a real possibility.12 So long as existing competition is sufficient to keep the market price below that point, potential competition is of marginal significance as a market regulator. Thus in a conglomerate or product-extension case, where the effects on market structure which are easiest to discover are generally effects on the 'condition of entry,' an understanding of the workings of the premerger market cannot be ignored, and, indeed, is critical to a determination whether the visible effects on 'condition of entry' have any competitive significance.
54
The Commission pinned its analysis of the premerger market exclusively on its concentration, the large market share enjoyed by the leading firms. In so doing the Commission was following the path taken by this Court in judging more conventional merger cases, e.g., United States v. Philadelphia National Bank, supra, and taking the position favored by the great weight of economic authority. See, e.g., Bain, Industrial Organization. The Sixth Circuit discounted the Commission's analysis because of the presence of some 200 small competitors in the market. The Court bases its agreement with the Commission and its rejection of the Court of Appeals' position on Clorox's alleged domination of the market. But domination is an elusive term, for dominance in terms of percentage of sales is not the equivalent of dominance in terms of control over price or other aspects of market behavior. Just as the total number of sellers in the market is not determinative of its operation, the percentage of sales made by any group of sellers is similarly not conclusive. The determinative issue is, instead, how the sellers interact and establish the pattern of market behavior. The significance of concentration analysis is that it allows measurement of one easily determined variable to serve as an opening key to the pattern of market behavior.
55
I think that the Commission, on this record, was entitled to regard the market as 'oligopolistic' and that it could properly ignore the impact of the smaller firms. I hasten to add, however, that there are significant 'economic dissents' from oligopoly analysis in general and stronger arguments that if its principles 'are justified in some cases, they are not justified in all cases * * *.' Brodley, supra, at 292. In adjudicating § 7 questions in a conglomerate or product-extension merger context where the pattern of behavior in the existing market is apt to be crucial, I would, therefore, allow the introduction by a defendant of evidence designed to show that the actual operation of the market did not accord with oligopoly theory, or whatever other theory the Commission desires to apply. In other words, I believe that defendants in § 7 proceedings are entitled, in the case of conglomerate or product-extension mergers, to build their own economic cases for the proposition that the mergers will not substantially impair competition.
56
For example, had Procter desired to go beyond demonstrating the mere presence of small competitors and attempted to show that the prices of unadvertised bleaches which were cost-determined set an effective ceiling on market price through the mechanism of an acceptable differential,13 I think that the Commission would have been obliged to receive and evaluate the proof. But to challenge effectively the presumption which the Commission is entitled to draw from general economic theory, a defendant must present, in my opinion, not only contradictory facts but a more cogent explanation of the pattern of market behavior.
57
If the proof as a whole establishes that pricing power may be exercised by a firm of firms in the market—that prices may be raised in the long run over competitive prices—then the Commission may legitimately focus on the role of potential competition and the 'condition of entry.' See Bain, Barriers to New Competition 5, 27. In so doing, however, a new difficulty is encountered. The threat of potential competition merely affects the range over which price power extends. Potential competition does not compel more vigorous striving in the market, nor advance any other social goal which Congress might be said to have favored in passing § 7.14 Thus it may legitimately be questioned whether even a substantial increase in entry barriers creates a substantial lessening of competition or tendency to monopoly as required by § 7.
58
Two justifications for the use of entry barriers as a determinant under § 7 can be given. The first is that an increased range over which pricing power may be exercised is contrary to the mandate of § 7 because Congress' use of the word 'competition' was a shorthand for the invocation of the benefits of a competitive market, one of which is a price close to average cost. Such an approach leads also to the conclusion that economic efficiencies produced by the merger must be weighed against anticompetitive consequences in the final determination whether the net effect on competition is substantially adverse. See Bork & Bowman, The Crisis in Antitrust, 65 Col.L.Rev. 363. The second justification is found in the tendency-to-monopoly clause of § 7. Certainly the clearest evil of monopoly is the excessive power the monopolist has over price. Since 'antitrust operates to forestall concentrations of economic power which, if allowed to develop unhindered, would call for much more intrusive government supervision of the economy,' Blake & Jones, In Defense of Antitrust, 65 Col.L.Rev. 377, 383, increased power over price should be attackable under § 7. Cf. S.Rep. No. 1775, 81st Cong., 2d Sess., 4—5. For these reasons I conclude that the Commission may properly find a conglomerate or product-extension merger illegal under § 7 because it substantially increases pricing power in the relevant market.
59
Given the development of a case against the merger in this area, however, the problem of efficiencies raised above must still be faced. The Court attempts to brush the question aside by asserting that Congress preferred competition to economies, but neglects to determine whether certain economies are inherent in the idea of competition. If it is conceded, as it must be, that Congress had reasons for favoring competition, then more efficient operation must have been among them. It is of course true that a firm's ability to achieve economies enhances its competitive position, but adverse effects on competitors must be distinguished from adverse effects on competition. Brown Shoe Co., v. United States, supra, 370 U.S. at 320, 82 S.Ct. at 1521. Economies achieved by one firm may stimulate matching innovation by others, the very essence of competition. They always allow the total output to be delivered to the consumer with an expenditure of fewer resources. Thus when the case against a conglomerate or product-extension merger rests on a market-structure demonstration that the likelihood of anticompetitive consequences has been substantially increased, the responsible agency should then move on to examine and weigh possible efficiencies arising from the merger in order to determine whether, on balance, competition has been substantially lessened.15 Where detriments to competition are apt to be 'highly speculative' it seems wisest to conclude that 'possibilities of adverse effects on competitive behavior are worth worrying about only when the merger does not involve substantial economies * * *.' Turner, supra, at 1354. The Court must proceed with caution in this area lest its decision 'over the long run deter new market entry and tend to stifle the very competition it seeks to foster.' United States v. Von's Grocery Co., 384 U.S. 270, 301, 86 S.Ct. 1478, 1495, 16 L.Ed.2d 555 (Stewart, J., dissenting).
60
To summarize then, four important guides to the adjudication of conglomerate or product-extension mergers under § 7 seem to come forward. First, the decision can rest on analysis of market structure without resort to evidence of post-merger anticompetitive behavior. Second, the operation of the premerger market must be understood as the foundation of successful analysis. The responsible agency may presume that the market operates in accord with generally accepted principles of economic theory, but the presumption must be open to the challenge of alternative operational formulations. Third, if it is reasonably probable that there will be a change in market structure which will allow the exercise of substantially greater market power, then a prima facie case has been made out under § 7. Fourth, where the case against the merger rests on the probability of increased market power, the merging companies may attempt to prove that there are countervailing economies reasonably probable which should be weighed against the adverse effects.
IV.
61
The Commission's decision did, I think, conform to this analysis. A review of the points the Commission relied upon is next required.
62
The Commission first attempted a catalogue of all the possible effects of the merger on competition, many of which were 'to an important degree psychological.' 63 F.T.C., at —-. Most of these 'effects' were speculations on the impact of Procter's ability to obtain advertising discounts and use its financial resources for increased sales promotion. Others were predictions as to the possible resources of retailers and competitors to Procter's entry and expected promotional activities. These were, as the Court of Appeals said, speculative at best but the Commission did not place great reliance on them in reaching its ultimate conclusion.
63
To hold the merger unlawful, the Commission relied on five factors which taken together convinced it that 'substantial' anticompetitive consequences could be expected. A 'substantial' impact was said to be 'significant and real, and discernible not merely to theorists or scholars but to practical, hard-headed businessmen.' 63 F.T.C., at —-. The relevant factors were (1) the excessive concentration in the industry at the time of the merger and the commanding market position of Clorox, (2) the relative disparity in size and strength between Procter and the firms in the liquid bleach industry, (3) the position of Procter in other markets, (4) the elimination of Procter as a potential competitor, and (5) the nature of the 'economies' expected from the merger. The net of these factors was to establish a substantial effect on the market structure variable involved, condition of entry.
64
Because Clorox had 48.8% of the premerger market and six firms made 80% of the sales, the Commission's conclusion that the market was oligopolistic and Clorox was the price leader must be sustained on this record where no alternative formulation of market operation was attempted. See United States v. Philadelphia National Bank, supra; Bain, Industrial Organization. The Commission's position is aided by actual evidence in the record supporting its hypothesis. Officials of other bleach companies appearing in the proceedings testified that their prices were established with regard to Clorox's price and uniformly regarded Clorox as the leading competitor in the market. The foundation was thus adequate for a consideration of probable changes in the 'condition of entry.'
65
Procter was indisputably many times the size of any firm in the liquid bleach industry and had great financial resources. Its advertising budget was more than 20 times that of Clorox and the scale of its expenditures qualified it for quantity discounts from media as well as enabling it to purchase expensive but advantageous advertising outlets. The record clearly showed that 'pre-selling' through advertising was a requisite for large scale liquid bleach operations,16 and thus the difference between Procter's advertising power and that of Clorox was important to a potential entrant. The expenditure on advertising which would have to be undertaken by a potential entrant in order to capture an acceptable market would vary with the tenacity of response to be expected from existing competitors. The greater the expenditure required, the higher the price to be commanded would have to be before entry would be undertaken.17 In this regard the substitution of Procter for Clorox was a substantial change.
66
Procter's strong position in other product markets is equally relevant to the probability of change in the 'condition of entry.' It would be unrealistic, however, to attach substantial importance to Procter's extensive financial resources unless Procter were able to bring them to bear in the liquid bleach industry. If Procter were hard pressed along all fronts of its operation, competitors could safely assume that increased pressure in the liquid bleach industry would not provoke a strong response, simply because financial resources could not be diverted to that purpose. Procter, however, was conducting highly profitable operations in other markets and had demonstrated its ability to bring large resources to bear in intensive competitive campaigns by its successful introduction of Comet cleanser and various toothpastes on a nationwide scale. Proof of demonstrated ability to mobilize and utilize large financial resources seems to me required if the introduction of such resources into the market is alleged to have a substantial effect.18 Such proof exists in this record.
67
Procter's role as a potential entrant was also related, by the Commission, to the 'condition of entry.' The Commission had 'no occasion to speculate on such questions as whether or not Procter * * * would in fact have entered the bleach industry on its own * * *.' 63 F.T.C., at —-. It merely noted that Procter's growth pattern, financial resources, experience in the field and management policies made it the most favorably situaded potential entrant. Thus the Commission reasoned that Procter might have been induced to enter the liquid bleach market when that market had a prevailing price level lower than that necessary to attract entry by more remote competitors. The limitation potential competition places on pricing policies depends on the barriers to entry facing particular competitors, and increased insulation can stem not only from changes which make it more costly for any firm to enter the market, but also from limitation of the class of entrants to those whose entry costs are high. See Bain, Barriers to New Competition 21.
68
At first blush, a serious inconsistency seems to arise between the Commission's analysis of this potential competition, and its expressed fear that the merger might turn the field into one of big business competition by inducing other large firms to seek entry into the market. If Procter's entry could be shown to have increased rather than decreased the likelihood of additional entry then it could hardly be attacked because of adverse effect on the 'condition of entry.' And I think it irrelevant whether further entry might be by small or large firms. Although there are those who attach a talismanic significance to small firm competition, see United States v. Von's Grocery Co., supra, 384 U.S. at 275, 86 S.Ct. at 1481. I do not believe that competition between dynamic, well-managed large companies is less desirable than any other form. However, there is nothing in the record to show that the Commission's discussion of this point was more than mere speculation, and I cannot attach any real significance to it.
69
The Commission's analysis of the economies involved in this case is critical and I regret that the Court refrains from commenting upon it. The Commission—in my opinion quite correctly seemed to accept the idea that economies could be used to defend a merger, noting that '(a) merger that results in increased efficiency of production, distribution or marketing may, in certain cases, increase the vigor of competition in the relevant market.' 63 F.T.C., at —-. But advertising economies were placed in a different classification since they were said 'only to increase the barriers to new entry' and to be 'offensive to at least the spirit, if not the letter, of the antitrust laws.' Ibid. Advertising was thought to benefit only the seller by entrenching his market position, and to be of no use to the consumer.
70
I think the Commission's view overstated and over-simplifed. Proper advertising serves a legitimate and important purpose in the market by educating the consumer as to available alternatives. This process contributes to consumer demand being developed to the point at which economies of scale can be realized in production. The advertiser's brand name may also be an assurance of quality, and the value of this benefit is demonstrated by the general willingness of consumers to pay a premium for the advertised brands. Undeniably advertising may sometimes be used to create irrational brand preferences and mislead consumers as to the actual differences between products,19 but it is very difficult to discover at what point advertising ceases to be an aspect of healthy competition. See Bork, Contrasts in Anti-trust Theory: I, 65 Col.L.Rev. 401, 411, n. 11. It is not the Commission's function to decide which lawful elements of the 'product' offered the consumer should be considered useful and which should be considered the symptoms of industrial 'sickness.' It is the consumer who must make that election through the exercise of his purchasing power. In my view, true efficiencies in the use of advertising must be considered in assessing economies in the marketing process, which as has been noted are factors in the sort of § 7 proceeding involved here.
71
I do not think, however, that on the record presented Procter has shown any true efficiencies in advertising. Procter has merely shown that it is able to command equivalent resources at a lower dollar cost than other bleach producers. No peculiarly efficient marketing techniques have been demonstrated, nor does the record show that a smaller net advertising expenditure could be expected. Economies cannot be premised solely on dollar figures, lest accounting controversies dominate § 7 proceedings. Economies employed in defense of a merger must be shown in what economists label 'real' terms, that is in terms of resources applied to the accomplishment of the objective. For this reason, the Commission, I think, was justified in discounting Procter's efficiency defense.
72
For the reasons set forth in this opinion, I conclude that the Commission was justified in finding that the Procter-Clorox merger entails the reasonable probability of a substantial increase in barriers to entry and of enhancement in pricing power in the liquid bleach industry and that its order must be upheld.
1
'No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.'
2
A pure conglomerate merger is one in which there are no economic relationships between the acquiring and the acquired firm.
3
The barriers to entry have been raised both for entry by new firms and for entry into new geographical markets by established firms. The latter aspect is demonstrated by Purex's lesson in Erie, Pennsylvania. In October 1957, Purex selected Erie, Pennsylvania—where it had not sold previously—as an area in which to test the salability, under competitive conditions, of a new bleach. The leading brands in Erie were Clorox, with 52%, and the '101' brand, sold by Gardner Manufacturing Company, with 29% of the market. Purex launched an advertising and promotional campaign to obtain a broad distribution in a short time, and in five months captured 33% of the Erie market. Clorox's share dropped to 35% and 101's to 17%. Clorox responded by offering its bleach at reduced prices, and then added an offer of a $1-value ironing board cover for 50¢ with each purchase of Clorox at the reduced price. It also increased its advertising with television spots. The result was to restore Clorox's lost market share and, indeed, to increase it slightly. Purex's share fell to 7%.
Since the merger Purex has acquired the fourth largest producer of bleach, John Puhl Products Company, which owned and marketed 'Fleecy White' brand in geographic markets which Purex was anxious to enter. One of the reasons for this acquisition, according to Purex's president, was that:
'Purex had been unsuccessful in expanding its market position geographically on Purex liquid bleach. The economics of the bleach business, and the strong competitive factors as illustrated by our experience in Erie, Pennsylvania, make it impossible, in our judgment, for us to expand our market on liquid bleach.'
1
It has been argued that the mergers before this Court in United States v. Aluminum Co. of America, 377 U.S. 271, 84 S.Ct. 1283, 12 L.Ed.2d 314, and United States v. Continental Can Co., 378 U.S. 441, 84 S.Ct. 1738, 12 L.Ed.2d 953, were essentially conglomerate. But the majority in both cases chose to treat them as horizontal and thus did not reach the problem of standards for judging conglomerate mergers. See Brodley, Oligopoly Power Under the Sherman and Clayton Acts—From Economic Theory to Legal Policy, 19 Stan.L.Rev. 285, 303—308.
2
Thus the Procter memorandum which considered the question of entry into the liquid bleach market stated: 'We would not recommend that the Company consider trying to enter this market by introducing a new brand or by trying to expand a sectional brand. This is because we feel it would require a very heavy investment to achieve a major volume in the field, and with the low 'available,' (a reference to profit margin) the payout period would be very unattractive.'
3
The need for analysis is even clearer in light of the fact that entry into the market by producers of nonadvertised, locally distributed bleaches was found to be easy. There were no technological barriers to entry, and the capital requirements for entry, with the exception of advertising costs, were small. The Court must at least explain why the threat of such entry and the presence of small competitors in existing regional markets cannot be considered the predominant, and unaffected, form of competition. To establish its point, the Court must either minimize the imPortance of such competition or show importance of such competition or show the merger.
4
Bain's pioneering study of barriers to entry, Barriers to New Competition, recognized that such barriers could be surmounted at different price levels by different potential entrants. Thus even without change in the nature of the barriers themselves, the market could become more insulated through loss of the most likely entrant simply because the prevailing market price would have to rise to a higher level than before to induce entry.
5
For a discussion of the difficulty of determining whether entry by a particular company is probable see Brodley, supra, n. 1, at 332.
6
But see Turner, Conglomerate Mergers and Section 7 of the Clayton Act, 78 Harv.L.Rev. 1313, 1340. '(T)he belief that predatory pricing is a likely consequence of conglomerate size, and hence of conglomerate merger, is wholly unverified by any careful studies * * *.'
7
But see Cook, Merger Law and Big Business: A Look Ahead, 40 N.Y.U.L.Rev. 710, 713. 'Of course, the conglomerate cases are the best examples of the exotic restraints. Here mere speculation on what either common sense or judiciously selected economists might lead one to infer is apparently enough to prevent a merger. One reads these opinions with growing incredulity. They imply that big businesses have so much strength and such deep pockets that they simply could not lose out in competition with smaller companies * * *. One does not need a statistical survey to know that this is simply not the way the world is.'
8
In so doing the Court has moved away from the original recommendations in the Report of the Attorney General's National Committee to Study the Antitrust Laws, which concluded that 'it will always be necessary to analyze the effect of the merger on relevant markets in sufficient detail, given the circumstances of each case, to permit a reasonable conclusion as to its probable economic effect.' Report, at 123. But the development of specific criteria was aided by a degree of experience which does not exist in conglomerate cases, where the caution to analyze in detail seems particularly sound.
9
The merger was consummated August 1, 1957. The Commission's complaint was filed on October 7, 1957.
10
Cf. FTC v. Consolidated Foods Corp., 380 U.S. 592, 85 S.Ct. 1220, 14 L.Ed.2d 95, where this Court held that even an extensive post-merger history, developed outside the influence of a § 7 challenge, was not to be considered a conclusive negation of the possibility of anticompetitive effects.
11
The amendments to the Bank Merger Act (80 Stat. 7) require a merger to be challenged within 30 days of agency approval. This negates the possibility of substantial post-merger evidence. 12 U.S.C. § 1828(c). It is noteworthy that Congress has required rapid adjudication and at the same time required a determination more complex than that which must be made under the antitrust laws. In a Bank Merger Act case the defendants may seek to have the merger upheld because 'the anticompetitive effects * * * are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served.' 12 U.S.C. § 1828(c)(5)(B) (1964 ed., Supp. II).
12
Thus Bain points out this in a competitive market where market price is presumed to be cost-based the threat of entry should not affect market price because each firm is presumed to make its pricing decisions without considering their impact on the market as a whole. Even in an oligopolistic market in which each seller must assume that its price actions will have marketwide effect, the threat of entry serves to limit market price only when the optimum return would be obtained at a price sufficient to induce entry. So long as the optimum price is below the entry-triggering price, the threat of entry has no real impact on the market.
13
There was evidence in the record that the liquid bleach market had three separate price levels, one for nationally advertised brands (Clorox and Purex), another for regional brands, and a third for local brands. There was also some testimony by officials of the companies producing the unadvertised regional and local brands, which sold at a lower price than Clorox and Purex, that their prices were determined by their costs. Some witnesses also testified that sales of unadvertised brands were extremely price elastic, and Bain's study of the related soap industry would lend support to that observation. Bain, Barriers to New Competition, Appendix D, at 283. Thus, an argument might have been made that because of this price consciousness the prices of advertised brands could not greatly exceed those of regional and local brands, and therefore costs served as the ultimate determinant of market price. On the other hand, there is testimony in the record that the pricing policy of some unadvertised producers was to follow the price of Clorox and maintain a differential sufficient to provide adequate sales.
14
Potential entry does not keep 'a large number of small competitors in business,' United States v. Von's Grocery Co., 384 U.S. 270, 275, 86 S.Ct. 1478, 1481, 16 L.Ed.2d 555, even if that goal could be considered desirable. In fact, by placing a ceiling on market price it may serve to drive out small competitors who may be relatively inefficient producers. Potential entry does not control the market share of dominant firms or prevent them from expanding their power to force others to accede to their practices.
15
I intimate no view on whether economies would be a defense in a situation such as that presented in Ekco Products Co. v. F.T.C., 7 Cir., 347 F.2d 745, where the evidence established that the company entering the market by merger intended to eliminate all competition, and had, in fact, purchased a leading competitor after entry.
16
This conclusion is supported by Bain's study of the closely related soap and detergent markets. See n. 13, supra.
17
This is the 'lesson' of the incident in Erie, Pennsylvania, where Clorox was able to repel Purex's assault on its market position. Purex's initial success showed that part of the market could be captured, but Procter's response made clear that the beachhead could not be maintained without continued heavy advertising expenses. Unless the price commanded was expected to be quite high, these advertising expenditures could not be sustained.
18
This limitation was recognized by the author of the Commission's opinion in this case, Commissioner Elman, in his dissenting opinion in National Tea Co., 3 Trade Reg.Rep. 17,463, at 22,708. 'The answer (in a § 7 case) can only be found in a careful and detailed analysis of the nature and economic condition of the industry, the structure of the relevant geographic markets, and the overall market power of the national chain and its capacity to bring it to bear in particular local markets.'
19
The Commission found, for example, that Clorox was identical to other liquid bleaches. Procter contended, and the Court of Appeals concluded, that Clorox employed superior quality controls. The evidence seemed to indicate that the regional and national brands were very similar, but that some local brands varied in strength.
| 78
|
386 U.S. 503
87 S.Ct. 1177
18 L.Ed.2d 256
CROWN COAT FRONT CO., Inc., Petitioner,v.UNITED STATES.
No. 371.
Argued Feb. 13 and 14, 1967.
Decided April 10, 1967.
[Syllabus from pages 503-504 intentionally omitted]
Edwin J. McDermott, Philadelphia, Pa., for petitioner.
David Rose, Philadelphia, Pa., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
The standard disputes clause in government contracts requires that 'any dispute concerning a question of fact arising under this contract,' not disposed of by agreement, shall be decided by the contracting officer, with the right of appeal within 30 days to the department head or his representative (normally a board of contract appeals) whose decision shall be final 'unless determined by a court of competent jurisdiction to have been fraudulent, arbitrary, capricious, or so grossly erroneous as necessarily to imply bad faith.'1 The 'arising under' claims subject to final administrative determination are those claims asserted under other clauses of the contract calling for equitable adjustment of the purchase price or extensions of time upon the occurrence of certain events.2 One of these clauses is the so-called 'changes' clause which permits the contracting officer to make changes within the scope of the contract, provides that if any change causes an increase or decrease in the cost of, or the time required for the performance of, the work, 'an equitable adjustment shall be made in the contract price or delivery schedule,' and states that failure to agree upon an adjustment shall be a question of fact within the meaning of the disputes clause.3
2
This case involves a claim for an equitable adjustment, asserted under the changes clause and rejected by the contracting officer and the Armed Services Board of Contract Appeals. The contractor brought suit in the District Court under 28 U.S.C. § 13464 alleging that the decision of the Board was arbitrary, capricious and not supported by substantial evidence. The District Court dismissed the case as barred by 28 U.S.C. § 2401(a) which provides that 'Every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues. * * *' The principal question here is whether the 'right of action' with respect to a claim within the disputes clause first accrues at the time of the final administrative action or at an earlier date.
3
The facts are quite simple. On May 14, 1956, petitioner contracted with the United States to furnish a specified number of canteen covers which were to be lined with mildew-resistant felt of certain specifications. The Government, which was authorized to inspect materials to be used under the contract, tested and rejected certain samples of felt purchased by petitioner because they allegedly did not contain the contract quantities of mildew inhibitors. Petitioner agreed to a price reduction, however, and was permitted to complete the contract. Final delivery, originally scheduled for October 11, 1956, was made on December 14, 1956. Allegedly, in March 1959, petitioner first discovered the nature of the tests which the United States had performed on the felt. Claiming that the use of such tests was not within the contemplation of the contract and constituted a change in contract specifications, petitioner filed a claim with the contracting officer in October 1961, demanding an equitable adjustment in the contract price in the form of a refund of the price reduction and compensation for increased costs occasioned by substantial delay resulting from the Government's rejection of the felt samples. The contracting officer denied the claim. On February 28, 1963, the Board of Contract Appeals affirmed the contracting officer's decision. On July 31, 1963, more than six years after petitioner had completed performance of the contract, petitioner brought suit in the District Court alleging that the Board's decision was capricious, arbitrary and not supported by substantial evidence and that it was entitled to an equitable adjustment as provided in the contract. The United States, among other things, denied that the claim was within the disputes clause and asserted that the suit was time-barred by § 2401(a). Without deciding whether the claim arose under the contract within the meaning of the disputes clause, the District Court dismissed the suit as barred by the statute of limitations. The Court of Appeals, sitting en banc, affirmed in a five-to-four decision. 2 Cir., 363 F.2d 407. Relying on McMahon v. United States, 342 U.S. 25, 72 S.Ct. 17, 96 L.Ed. 26, and its own decision in States Marine Corp. of Delaware v. United States, 2 Cir., 283 F.2d 776, which arose under the Suits in Admiralty Act, the majority below concluded that the right of action first accrued no later than December 14, 1956, the date of the final delivery of the disputed canteen covers, and was therefore time-barred by § 2401(a). The court disagreed with the decision of the Court of Appeals for the Third Circuit in Northern Metal Co. v. United States, 3 Cir., 350 F.2d 833, which, like States Marine, supra, involved the Suits in Admiralty Act. 41 Stat. 525, as amended the Court of Appeals for the Third Circuit had agreed with States Marine as to when the time bar begins to run but had held that the statute was tolled during the pendency of the administrative proceedings. Because of this apparent conflict, we granted certiorari, 385 U.S. 811, 87 S.Ct. 87, 17 L.Ed.2d 52. We reverse.
4
Since the decision below, the Court of Claims has decided Nager Electric Co., Inc. v. United States, 368 F.2d 847, 177 Ct.Cl. 234, an unanimous decision by that court supported by an exhaustive opinion by Judge Davis dealing with the application of the 'first accrual' language of 28 U.S.C. § 25015 to both breach and disputes clause claims under the typical government contract. The conclusion of the Court of Claims was that it would adhere to what it considered to be its long-standing rule: (1) when administrative proceedings with respect to a contractor's claim subject to the disputes clause extend beyond the completion of the contract, his right of action first accrues when the administrative action is final,6 and not before, and (2) when the contractor has breach claims as well as disputes clause claims the statute begins to run on breach claims as well only at the conclusion of administrative action on the claims arising under the contract.7 As will be evident below, we do not reach the question of breach claims in this case. But with respect to claims arising under the contract, such as one asserted under the changes clause, we agree with the Court of Claims and essentially for the reasons which that court articulated.
5
1. We start with the obvious: Section 2401(a) provides a time limit upon bringing civil actions against the United States. The 'civil action' referred to is a civil action in a court of competent jurisdiction. Cf. Unexcelled Chemical Corp. v. United States, 345 U.S. 59, 73 S.Ct. 580, 97 L.Ed. 821. Such a civil suit is seemingly barred if the right to bring it first accrued more than six years prior to the date of filing the suit. Our initial inquiry is, therefore, when the right of the contractor in this case to bring suit in the District Court first accrued. In our opinion, if its claim arose under the contract, it first accrued at the time of the final decision of the Armed Services Board of Contract Appeals, that is, upon the completion of the administrative proceedings contemplated and required by the provisions of the contract.
6
With respect to claims arising under the typical government contract, the contractor has agreed in effect to convert what otherwise might be claims for breach of contract into claims for equitable adjustment. The changes clause, for example, permits the Government to make changes in contract specifications. Such changes are not breaches of contract. They do give rise to claims for equitable adjustments which the Government agrees to make, if the cost of performance is increased or the time for performance changed. But whether and to what extent an adjustment is required are questions to be answered by the methods provided in the contract itself. The contractor must present his claim to the contracting officer, whose decision is final unless appealed for final action by the department head or his representative, here the Armed Services Board of Contract Appeals. Until that Board has acted, the contractor's claim is not subject to adjudication in the courts.8 Until then, he has only the right to have the existence and extent of his claimed adjustment determined by the administrative process agreed upon. But, as we have said, the 'right of action' of which § 2401(a) speaks is not the right to administrative action but the right to file a civil action in the courts against the United States. Under the contract we have here, the contractor's claim was subject only to administrative, not judicial, determination in the first instance, with the right to resort to the courts only upon the making of that administrative determination.
7
It is now crystal clear that the contractor must seek the relief provided for under the contract or be barred from any relief in the courts. In United States v. Joseph A. Holpuch Co., 328 U.S. 234, 66 S.Ct. 1000, 90 L.Ed. 1192, the question was whether a contractor's failure to exhaust the administrative appeal provisions of a government construction contract bars him from bringing suit in the Court of Claims to recover damages. The Court held that it did. According to the Court, the disputes clause
8
'is a clear, unambiguous provision applicable at all times and binding on all parties to the contract. No court is justified in disregarding its letter or spirit. * * * It creates a mechanism whereby adjustments may be made and errors corrected on an administrative level, thereby permitting the Government to mitigate or avoid large damage claims that might otherwise be created. United States v. Blair, 321 U.S. 730, 735, 64 S.Ct. 820, 823, 88 L.Ed. 1039. This mechanism, moreover, is exclusive in nature. Solely through its operation may claims be made and adjudicated as to matters arising under the contract. * * * And in the absence of some clear evidence that the appeal procedure is inadequate or unavailable, that procedure must be pursued and exhausted before a contractor can be heard to complain in a court.' 328 U.S. 234, 239—240, 66 S.Ct. 1003.
9
See also United States v. Blair, 321 U.S. 730, 64 S.Ct. 820, 88 L.Ed. 1039 and United States v. Callahan Walker Co., 317 U.S. 56, 61, 63 S.Ct. 113, 115, 87 L.Ed. 49, where the disputes clause procedures are described as the 'only avenue for relief.'
10
2. Even when the contractual scheme has run its course and the contractor is free to file his suit in court, he is not entitled to demand a de novo determination of his claim for an equitable adjustment. The evidence in support of his case must have been presented administratively and the record there made will be the record before the reviewing court. United States v. Carlo Bianchi & Co., 373 U.S. 709, 83 S.Ct. 1409, 10 L.Ed.2d 652; United States v. Utah Construction & Min. Co., 384 U.S. 394, 86 S.Ct. 1545. The court performs principally a reviewing function. Only if it is alleged and proved that the administrative determination was arbitrary, capricious, or not supported by substantial evidence may the court refuse to honor it. This much is clear not only from the disputes clause itself but from the Wunderlich Act.9 In that statute, entitled 'An Act to permit review * * *,' 68 Stat. 81, Congress widened the scope of judicial review but at the same time recognized the finality of the administrative decision absent the specified grounds for setting it aside. The focus of the court action is the validity of the administrative decision. Until that decision is made, the contractor cannot know what claim he has or on what grounds administrative action may be vulnerable. It is only then that his claim or right to bring a civil action against the United States matures and, as the Court of Claims said, that he has 'the right to demand payment * * * the hallmark of accrual of a claim in this court.' 368 F.2d, at 859, 177 Ct.Cl., at 252.
11
3. To hold that the six-year time period runs from the completion of the contract, as the Government insists, would have unfortunate impact. The contractor is compelled to resort to administrative proceedings which may be protracted and which may last not only beyond the completion of the contract but continue for more than six years thereafter. If the time bar starts running from the completion date, the contractor could thus be barred from the courts by the time his administrative appeal is finally decided. This would be true whether he wins or loses before the board of appeals. Even if he prevailed there and was granted the equitable adjustment he sought, the Government would be immune from suit to enforce the award if more than six years had passed since the completion of the contract. This is not an appealing result, nor in our view, one that Congress intended. The Wunderlich Act evidences a congressional purpose to insure adequate judicial review of administrative decisions on claims arising under government contracts; it is very doubtful that it anticipated no review at all if administrative proceedings, compulsory on the contractor, continued for more than six years beyond the contract's completion date.10
12
The Government suggests that the contractor may easily avoid such untoward results by the timely filing of a protective suit which could remain inactive pending the conclusion of administrative proceedings. But the contractor is not legally entitled to ask the courts to adjudicate his claim as an original matter. Nor can he sensibly ask the courts to review a decision which has not yet been made. He cannot, with honesty, make the necessary allegations to support an action for review until the administrative process is completed and the agency decision known. Since it would remain quiescent until the administrative decision is rendered, the protective suit would be a sheer formality in any event—a procedural trap for the unwary and an additional complication for those who manage the dockets of the courts. Certainly it would be no help to those contractors for whom it is already too late to file such a suit, which is true of the petitioner in this case.11
13
4. The Government challenges what the Court of Claims in Nager Electric considered to be the long-standing rule found in its own past cases. It asserts that many of the cases from which the purported rule was sifted do not involve the standard disputes clause and those that do state the rule by way of dictum only. But we think the Court of Claims fairly reflected the thrust and tenor of its prior opinions.12 At least, based on those cases, the ordinary contractor would have been wholly justified in concluding that he had six years from the conclusion of administrative proceedings to file his suit. Nor, aside from the decision in this case, have we been to any court of appeals decisions in Tucker Act (24 Stat. 505) cases, which are contrary to the rule followed by the court of Claims.
14
5. This brings us to the cases in this Court upon which the Government and the Court of Appeals have relied: McMahon v. United States, 342 U.S. 25, 72 S.Ct. 17, 96 L.Ed. 26; Soriano v. United States, 352 U.S. 270, 77 S.Ct. 269, 1 L.Ed.2d 306 and Unexcelled Chemical Corp. v. United States, 345 U.S. 59, 73 S.Ct. 580, 97 L.Ed. 821. None of them was a Tucker Act suit involving a disputes clause claim. McMahon was an action brought by an injured seaman against the United States for negligence and unseaworthiness. The Suits in Admiralty Act requires actions to be brought within two years after 'the cause of action arises.' The Clarification Act, 57 Stat. 45, 50 U.S.C. App. § 1291(a), which brought such a seaman's suit within the ambit of the Suits in Admiralty Act, permits court action only if the claim has been administratively disallowed, but sets no time within which a claim must be presented to the administrative body. The Court held that the limitations period ran from the time of the injury, not from the date of the disallowance of the claim. The Court saw no indications that Congress in passing the Clarification Act intended to postpone the usual time of accrual of the cause of action until the date of disallowance, since this would permit the claimant to postpone indefinitely the commencement of the running of the statutory period.
15
The Court has pointed out before, however, the hazards inherent in attempting to define for all purposes when a 'cause of action' first 'accrues.' Such words are to be 'interpreted in the light of the general purposes of the statute and of its other provisions, and with due regard to those practical ends which are to be served by any limitation of the time within which an action must be brought.' Reading Co. v. Koons, 271 U.S. 58, 62, 46 S.Ct. 405, 406, 70 L.Ed. 835; see also United States v. Dickinson, 331 U.S. 745, 748, 67 S.Ct. 1382, 1384, 91 L.Ed. 1789. Cases under the Suits in Admiralty Act do not necessarily rule Tucker Act claims. The purpose of the Clarification Act was to prevent unnecessary litigation by providing for notice of injury to the United States and for the opportunity to settle claims administratively. But while suit was permitted only if a claim had been 'disallowed,' the applicable regulations provided that if a claim was not rejected within 60 days after filing, it would be deemed to have been administratively disallowed and the claimant would be free to enforce his claim. There was no chance for administrative action to consume the entire limitations period and therefore bar all resort to the courts.
16
In disputes clause cases, however, final administrative action, which the claimant must await, may occur more than six years after the completion of the contract. When it does, the claimant would be time-barred if the six-year period is measured from the date of final performance. Nor does the claimant in cases like the one before us have unlimited discretion as to when to file his claim. The standard changes clause13 requires him to present his claim within 30 days and most other clauses in government contracts calling for an equitable adjustment also contain their own time limitations. Where this is not true, the contractor cannot delay unreasonably in presenting him claim. This is the rule the Court of Claims follows. See Nager Electric, supra, 368 F.2d, at 864, 177 Ct.Cl., at 259.
17
Nor do Soriano or Unexcelled control this case. In Soriano the six-year time bar was held to run from the date of the requisitioning of foodstuffs and equipment by Philippine guerilla forces and not from the date of the disallowance of a claim filed with the Army Claims Service. The majority in that case expressly held that the administrative action was not a prerequisite to suit in the Court of Claims. Likewise, in Unexcelled, where the statutory period was held to run from the date of the breach of statutory duty under the Walsh-Healey Act (49 Stat. 2036), rather than from the date of the administrative determination of the liquidated damages due the Government, it seems apparent that the United States, to which damages were payable, could have brought suit without first resorting to administrative remedies.
18
6. Finally, the Government relies on Public Law 89—505, 80 Stat. 304, 28 U.S.C. § 2415 (1964 ed., Supp. II), enacted on July 18, 1966, which for the first time established a general statute of limitations on government tort claims and on suits by the Government for money damages founded on any contract, express or implied. Such suits must now be brought within 'six years after the right of action accrues or within one year after final decisions have been rendered in applicable administrative proceedings required by contract or by law.' As an example of such administrative proceedings, the relevant committee reports and hearings mentioned the administrative proceedings required under the standard disputes clause contained in government contracts. H.R.Rep.No.1534, 89th Cong., 2d Sess., at 4; S.Rep.No.1328, 89th Cong., 2d Sess., at 3; Hearing on H.R. 13652 before Subcommittee No. 2 of the House Committee on the Judiciary, 89th Cong., 2d Sess., 7 (1966) U.S.Code Congressional and Administrative News, p. 2502. Based on this new provision, the Government argues that Congress necessarily assumed that the right of action of the United States in disputes clause situations first accrues and the limitations period begins to run prior to the completion of administrative proceedings. Otherwise there would have been no need for the one-year period following final administrative decision in order to save actions which might otherwise be barred by the six-year limitation. What this amounts to, the Government says, is a congressional construction of the similar 'first accrual' language of the older limitations on private actions contained in § 2401(a) and § 2501. Likewise, it argues, this construction precludes holdings such as that of the Third Circuit in Northern Metal Co. v. United States, 350 F.2d 833, to the effect that the statute is tolled during the pendency of administrative proceedings.
19
This argument is not without force. There is no question of the power of Congress to define the limits of its waiver of sovereign immunity. But we are not convinced that Congress intended to issue any determinative construction of § 2401 in formulating and passing § 2415. Neither in the hearing on H.R. 13652 nor in the committee reports did Congress focus on the first accrual language of § 2401, on the existing construction of that language by the Court of Claims or any other court or on the situation of the government contractor desiring to sue the United States during or after the conclusion of administrative proceedings under the disputes clause. The bill was recommended to the Congress by the Department of Justice at the time the Department was litigating Nager Electric in the Court of Claims in which the Department ultimately took the position that the private contractor's right of action first accrues no later than the completion of the contract. This position was rejected by the Court of Claims, in favor of what is considered to be its existing rule—that the private contractor's right to sue on a disputes clause claim first accrues with the termination of administrative proceedings. Given the Wunderlich Act, and the prior litigative history of disputes clause issues in this Court and in the Court of Claims, we are doubtful that Congress intended to bar a private contractor's suit on a disputes clause claim where administrative proceedings continue for more than six years after the completion of the contract. Congress understood what the impact of such a rule would be if applied to the Government and made due allowance for it by allowing the Government the one-year grace period. We see no indications that it had in mind the private litigant whose right to sue the United States is governed by § 2401. We are hesitant to believe that in passing a statute aimed at equalizing the litigative opportunities between the Government and private parties14 Congress consciously extended a one-year saving period to the Government to overcome the effects of protracted administrative proceedings and refused similar relief to the contractor. At least we are sufficiently doubtful that we prefer to await a somewhat clearer signal from the Congress.
20
We therefore conclude that if the claim filed by the contractor in this case was a claim 'arising under' the contract and was therefore subject to administrative determination, (1) its right to bring a civil action first accrued when the Armed Services Board of Contract Appeals finally ruled on its claim and (2) its suit in the District Court was timely filed. The Government in its answer to the complaint, however, denied that the claim arose under the contract, characterized it instead as a pure breach of contract claim which accrued no later than the date of the completion of the contract. The District Court did not decide this issue; nor do we. This matter will be open on remand to the District Court. If the claim is not within the disputes clause, the court may then determine whether it is time-barred.
21
Reversed. and remanded.
1
The disputes clause contained in the contract between petitioner and the Government provides:
'Except as otherwise provided in this contract, any dispute concerning a question of fact arising under this contract which is not disposed of by agreement shall be decided by the Contracting Officer, who shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the Contractor. Within 30 days from the date of receipt of such copy, the Contractor may appeal by mailing or otherwise furnishing to the Contracting Officer a written appeal addressed to the Secretary, and the decision of the Secretary or his duly authorized representative for the hearing of such appeals shall, unless determined by a court of competent jurisdiction to have been fraudulent, arbitrary, capricious, or so grossly erroneous as necessarily to imply bad faith, be final and conclusive; provided that, if no such appeal is taken, the decision of the Contracting Officer shall be final and conclusive. In connection with any appeal proceeding under this clause, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder the Contractor shall proceed diligently with the performance of the contract and in accordance with the Contracting Officer's decision.'
For the disputes clause presently in use, see 32 CFR § 597.103—12.
2
Claims not arising under those other clauses of the contract calling for equitable adjustment and therefore not within the disputes clause will sometimes be referred to herein as 'breach' claims. See United States v. Utah Construction & Min. Co., 384 U.S. 394, 403—418, 86 S.Ct. 1545, 1550—1558, 16 L.Ed.2d 642.
3
The record in this case contains only excerpts from the changes clause of the contract at issue here. The standardized version of the changes clause for fixed-price supply contracts provides, in its entirety, that:
'The Contracting Officer may at any time, by a written order, and without notice to the sureties, make changes, within the general scope of this contract, in any one or more of the following: (i) Drawings, designs, or specifications, where the supplies to be furnished are to be specially manufactured for the Government in accordance therewith; (ii) method of shipment or packing; and (iii) place of delivery. If any such change causes an increase or decrease in the cost of, or the time required for the performance of any part of the work under this contract, whether changed or not changed by any such order, an equitable adjustment shall be made in the contract price or delivery schedule, or both, and the contract shall be modified in writing accordingly. Any claim by the Contractor for adjustment under this clause must be asserted within 30 days from the date of receipt by the Contractor of the notification of change, provided, however, that the Contracting Officer, if he decides that the facts justify such action, may receive and act upon any such claim asserted at any time prior to final payment under this contract. Where the cost of property made obsolete or excess as result of a change is included in the Contractor's claim for adjustment, the Contracting Officer shall have the right to prescribe the manner of disposition of such property. Failure to agree to any adjustment shall be a dispute concerning a question of fact within the meaning of the clause of this contract entitled 'Disputes.' However, nothing in this clause shall excuse the Contractor from proceeding with the contract as changed.' 32 CFR § 7.103—2.
The excerpted version of the changes clause in this case appears in the unreported opinion of the District Court, and it seems substantially identical to the full clause quoted above.
4
Section 1346 in relevant part provides that the district courts shall have original jurisdiction, concurrent with the Court of Claims, of '* * * (2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded * * * upon any express or implied contract with the United States * * *.'
5
Section 2501 provides as follows: 'Every claim of which the Court of Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.'
6
Where the administrative proceedings have not extended beyond the date of completion of the contract, the Court of Claims' rule has been that 'the claim accrues, and the statutory period commences, at the time of completion or acceptance (if the latter is contemplated).' 368 F.2d 847, 853, 177 Ct.Cl. 234, 242.
7
The Court of Claims summarized its prior rulings with respect to co-existing breach and disputes clause claims as follows:
'Reading them all together, these opinions show, we think, that where a contractor has both 'disputes-clause' items and 'breach-type' claims under a single contract, the following standards have controlled in this court: (i) there should be only one suit to enforce the various claim-items; (ii) the contractor can bring suit on the ripened 'breach-type' items before completion of the administrative process on the 'disputes-clause' items, but if he does so he may well lose the latter claims unless he includes them (by proper amendment, if necessary, as they mature) in his court action; but (iii) the contractor need not file suit on the 'breach-type' items until after the end of the administrative process, when all the items have ripened and can be included in the one petition. In sum, our rule has been that the time-bar will not fall until six years after the administrative determination, but suit can be filed earlier, with the plaintiff taking the risk that he may thereby split his cause of action.' 368 F.2d, at 857, 177 Ct.Cl., at 248—249.
8
We do not have a situation here where the United States refuses to process the claim in accordance with its agreement or otherwise departs from the agreed-upon scheme for settling disputed issues within the disputes clause.
9
41 U.S.C. §§ 321 and 322 provides as follows:
§ 321. Limitation on pleading contract-provisions relating to finality; standards of review.
'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 fradulent (sic) or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.
§ 322. Contract-provisions making decisions final on questions of law.
'No Government contract shall contain a provision making final on a question of law the decision of any administrative official, representative, or board.'
10
The Committee Report on the Wunderlich Act disaffirms any intention to confer any new rights on the contractor other than the widened scope of review and refers specifically to the six-year statute of limitations barring stale suits against the Government. But the report does not suggest when the limitations period begins to run or purport to alter or to disagree with the then-extant judicial constructions of either § 2401 or § 2501 by the Court of Claims or by any other court. See H.R.Rep. No. 1380, 83d Cong., 2d Sess. U.S.Code Congressional and Administrative News, p. 2191.
11
We should in this respect heed the words of the Court of Claims: 'The United States has known for decades that contract suits will be timely in this court if they are filed within six years after the administrative determination, and has probably acted on that assumption in keeping records and retaining evidence. On the other hand, to say abruptly at this moment that limitation runs from the contract's completion, regardless of subsequent mandatory administrative proceedings, would undoubtedly cut off scores of contractors who, relying on our past decisions, have waited to bring suit until the ending of the administrative process. There is no adequate reason to disrupt these justified expectations.' 368 F.2d, at 860, 177 Ct.Cl., at 253—254.
12
The cases cited by the Court of Claims are the following:
Electric Boat Co. v. United States, 81 Ct.Cl. 361, 367—368, cert. denied, 297 U.S. 710, 56 S.Ct. 573, 80 L.Ed. 997; Austin Eng'r Co. v. United States, 88 Ct.Cl. 559, 562—564; Holton, Seelye & Co. v. United States, 65 F.Supp. 903, 907, 106 Ct.Cl. 477, 501; Griffin v. United States, 77 F.Supp. 197, 206, 110 Ct.Cl. 330, 372, 373, rev'd on other grounds, sub nom. United States v. Jones, 336 U.S. 641, 69 S.Ct. 787, 93 L.Ed. 938; Art Center School v. United States, 142 F.Supp. 916, 921, 136 Ct.Cl. 218, 226; Empire Institute of Tailoring, Inc. v. United States, 161 F.Supp. 409, 411, 142 Ct.Cl. 165, 168; International Potato Corp. v. United States, 161 F.Supp. 602, 604—605, 142 Ct.Cl. 604, 606—607; Clifton Products, Inc. v. United States, 169 F.Supp. 511, 512—513, 144 Ct.Cl. 806, 809; Cosmopolitan Mfg. Co. v. United States, 297 F.2d 546, 547, 156 Ct.Cl. 142, 144, cert. denied sub nom. Arlene Coats v. United States, 371 U.S. 818, 83 S.Ct. 36, 9 L.Ed.2d 60; Steel Improvement & Forge Co. v. United States, 355 F.2d 627, 631, 174 Ct.Cl. 24, 29—30.
The Court of Claims also dealt with Aktiebolaget Bofors v. United States, 153 F.Supp. 397, 399, 139 Ct.Cl. 642, 644, a case containing statements seemingly contrary to those found in the above cases.
13
The Court of Claims dealt with the matter as follows:
'Similarly, the contractor in the cases before us (and the mass of such cases) is not left at large to present his claim administratively whenever he likes. The Disputes clause does not itself fix a time within which a disputed issue of fact must be presented to the contracting officer, but that is not ordinarily true of the various substantive contractual clauses which lead to equitable adjustments or comparable relief under the contract. Those specific clauses usually have built-in time limits, and where no specific period is established in the contract the contractor cannot delay unreasonably. Cf. Dawnic Steamship Corp. v. United States, 90 Ct.Cl. 537, 579 (1940). Neither this court nor the administrative tribunals have had any great difficulty in handling belated claims by contractors under the various contract-adjustment articles. Contractors have not been able to extend the limitations period unduly by unilaterally postponing the commencement of the administrative process.' 368 F.2d, at 864, 177 Ct.Cl., at 259—260.
The court also noted that:
'The standard Changes clause in construction contracts provides that claims for adjustment must be asserted within 10 days; the Changed Conditions clause calls for an immediate notification to the contracting officer; the Delays-Damages clause contemplates a notice within 10 days of excusable delays; the Price Adjustment for Suspension, Delays, or Interruption of Work clause sets 20 days as the normal period. See United States v. Utah Constr. & Mining Co., 384 U.S. 394, 397—399 n. 1, 416 n. 14, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966).' 368 F.2d, at 864, n. 29, 177 Ct.Cl., at 259, n. 29.
The 30-day period within which a fixed-price supply contractor must assert his claim for equitable adjustment arising from changes, see text above and supra, n. 3, may be shortened in accordance with Department procedure, 32 CFR § 7.103—2, or with negotiations, 32 CFR § 597.103—2.
14
The congressional intent to 'put the Government on a parity with those private litigants who may sue' and 'to equalize the position of litigants' is sufficiently evident. See Hearing on H.R. 13652 before Subcommittee No. 2 of the House Committee on the Judiciary, 89th Cong., 2d Sess., 9, 11 (1966); H.R.Rep. No. 1534, 89th Cong., 2d Sess., at 4; S.Rep. No. 1328, 89th Cong., 2d Sess., at 2. Whether Congress succeeded in establishing exact equality between contractors and the Government is of course another question. In this regard, it is interesting to note that in addition to the one year following the termination of administrative proceedings in which the Government can institute a suit under § 2415, subsection (e) of that provision provides that:
'In the event that any action to which this section applies is timely brought and is thereafter dismissed without prejudice, the action may be recommenced within one year after such dismissal, regardless of whether the action would otherwise then be barred by this section. In any action so recommenced the defendant shall not be barred from interposing any claim which would not have been barred in the original action.' 28 U.S.C. § 2415(e) (1964 ed., Supp. II).
| 89
|
386 U.S. 484
87 S.Ct. 1188
18 L.Ed.2d 244
Ayako HONDA et al., Petitioners,v.Ramsey CLARK, Attorney General of the United States.
No. 164.
Argued Feb. 14, 1967.
Decided April 10, 1967.
Joseph L. Rauh, Jr., Washington, D.C., for petitioners.
Richard A. Posner, Washington, D.C., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
Petitioners are 4,100 United States citizens or residents of Japanese descent seeking to recover funds vested under the Trading with the Enemy Act, 40 Stat. 411, 50 U.S.C. App. § 1 et seq. The District Court dismissed their suit against the Attorney General1 as barred by limitations, and the Court of Appeals affirmed by a divided vote. 123 U.S.App.D.C. 12, 356 F.2d 351. We granted certiorari because of the importance and unusual character of the questions involved, affecting the proper application of this wartime statute. 385 U.S. 917, 87 S.Ct. 226, 17 L.Ed.2d 142.
2
Both as the case was treated by the lower courts and as it was largely argued here, the limitations issue has been thought to turn on whether the Government is estopped from asserting the 60-day time bar provided for actions of this kind by § 34(f) of the Trading with the Enemy Act. We conclude, however, that 'estoppel' is not the controlling issue, but that for reasons discussed in this opinion the period of limitations was tolled, requiring reversal of the judgment below.
I.
3
Upon the outbreak of hostilities with Japan, the United States, on December 7, 1941, acting under the Trading with the Enemy Act, seized the American assets of businesses owned by Japanese nationals, among such property being the assets of the Yokohama Specie Bank, Ltd. The assets of the bank were liquidated, and in 1943 were vested in the Alien Property Custodian; see Paramount Pictures, Inc. v. Sparling, 93 Cal.App.2d 768, 770—771, 209 P.2d 968, 969—970. Petitioners were among the approximately 7,500 depositors of the bank holding 'yen certificates,'2 who submitted timely claims, many being filed as early as 1946, under § 34 of the Act seeking recovery of their deposits.
4
Section 34 of the Act was enacted in 1946 as a legislative response to this Court's decision in Markham v. Cabell, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 which allowed nonenemy creditors of former owners of vested property to bring suit under a World War I statute,3 and recover directly out of vested assets. The Alien Property Custodian feared that allowance of such suits might lead to inequitable results, in that creditors who brought suit immediately might exhaust the assets at the expense of other, equally valid, claims. The Custodian urged, and the Congress agreed, that an approach on the lines of the Bankruptcy Act was a fairer method of distributing such assets.4 See H.R.Rep. No. 2398, 79th Cong., 2d Sess., 10, 14 (1946); S.Rep. No. 1839, 79th Cong., 2d Sess., 4, 8 (1946). As in bankruptcy law, the new Act required the filing of a debt claim with the Custodian within a specified period, § 34(b).
5
Approximately 7,500 yen certificate holders, including petitioners, immediately complied with this provision and submitted photostatic copies of their respective certificates. In the course of processing the claims pursuant to § 34(f) a question arose as to the redemption value of the certificates both for depositors of the Yokohama Specie Bank and for those of another bank, the Sumitomo Bank, holding similar certificates. An administrative determination was sought in a proceeding brought in the name of one of the Yokohama Bank depositors, Kunio Abe, Claim No. 55507. Abe, acting for all yen certificate holders, took the view that since these deposits had been made in American dollars, and the certificates were allegedly redeemable in dollars at any time upon demand at American branches of the bank, they should be treated as dollar debts at the amount of their value when seized in 1941, at a rate of about 4.3 yen to the dollar. The Attorney General,5 however, characterized the debts as yen debts, and following the rule of Die Deutsche Bank, etc. v. Humphrey, 272 U.S. 517, 47 S.Ct. 166, 71 L.Ed. 383, and Zimmermann v. Sutherland, 274 U.S. 253, 47 S.Ct. 625, 71 L.Ed. 1034, held that the proper measure of recovery would be at the postwar conversion rate of 361.55 yen to the dollar, or less than 2% of the prewar rate. It is noteworthy that throughout this period the Yokohama Bank's successor in Japan, the Bank of Tokyo, Ltd., was willing to redeem these certificates at the postwar rate. Petitioners, at any time, could therefore have received from the Japanese bank the amount the Government asserted would eventually be obtained from the vested assets.
6
At the conclusion of the administrative process, in 1958 1959, the Chief of the Claims Section wrote to each of the depositors who had filed a claim, including petitioners, advising that 'The Director of this Office decided on November 13, 1957, In the Matter of Kunio Abe et al., Claim No. 55507, Docket No. 55 D 72, which decision the Attorney General has declined to review, that yen certificates of deposit issued by the Yokohama Specie Bank, Ltd. * * * are obligations payable in yen in Japan * * *,' and therefore that the postwar rate of 361.55 yen to the dollar would be used in redeeming certificates from the vested assets. Claimants were told to submit their original certificates within 45 days. However, the letter continued, 'Payment of your claim * * * will not be made immediately.' The letter informed the claimant that a full schedule of claimants would be made, § 34(f), and that after its issuance aggrieved certificate holders might file suit in the United States District Court for the District of Columbia for judicial review. 'Under the circumstances,' the letter continued, 'you may wish to utilize the funds in Japan rather than await settlement by this Office. If this is done, the Notice of Claim filed with this Office should be canceled by signing and mailing the enclosed Notice of Cancellation of Claim card.'
7
Petitioners characterize this letter as 'confusing' and 'insulting.' We think the opprobrium which is sought to be fastened on the letter is undeserved and consider it more accurate and fairer to say that although its instructions were complex, the letter was written in a manner designed reasonably to apprise a layman of the choices before him. However, on the particular facts of this case and given the empirical evidence available, it is quite understandable that of the 7,500 initial claimants, only 1,817 responded affirmatively by sending in their certificates, and less than 1,600 canceled their claims and sought immediate recovery in Japan. The remainder, a majority of all who had claims, petitioners in this case did nothing.
8
The reasons for their inaction are quite apparent, and, it can reasonably be argued, should have been so to the Government: the letter indicated that despite as long as 12 years of waiting after the original submission of their claims, supported by copies of their certificates, they could expect to receive less than 2% of their basic deposits measured in prewar dollar terms, and that even this amount would not be forthcoming immediately, but only after issuance of a schedule (an additional interval, it turned out, of three years) plus possible judicial review. Claimants would clearly be better off getting repayment immediately from the Japanese bank itself. This recourse, suggested by the letter itself, was at the same time understandably advantageous to the Government as well: American citizens or residents would obtain relief, but from a foreign source, thus freeing more of the vested assets for distribution to remaining claimants. It is thus understandable that the Government did nothing to ascertain why a majority of the 7,500 claimants had responded in no way to its letter.
9
In affidavits submitted to the District Court, and not contradicted on the motion to dismiss the complaint, various other reasons were asserted for the failure of these petitioners to respond. Petitioner Jiro Kai asserted:
10
'I did receive a letter from the Office of Alien Property offering me about 30¢ for my claim. I think I recall being asked to send in my original certificate by registered mail to receive this amount. For me to have done this would have cost more than I was being offered.6 I had heard from others that many more persons had claims similar to mine and I understood that they were all being processed together. I saw in the Japanese newspaper that a court suit was or would be filed seeking to obtain for the yen claimants the proper amount for their claims. I believed, therefore, I would be protected.'
11
Other affidavits gave similar reasons. These are summarized best in an affidavit of Mr. Katsuma Mukaeda, president of the Japanese Chamber of Commerce of Southern California:
12
'Many of the Yokohama Specie Bank yen deposit certificate holders were old people who could not read English and could not understand the communications they received from the Office of Alien Property; many of them had to rely upon other persons who themselves were not able to understand the letters; most of the claimants had never talked to a lawyer about their cases and there was a general feeling in the community that all of the claims were going to be treated alike, both the Sumitomo Bank claimants and the Yokohama Specie Bank claimants; there was knowledge in the community that a law suit had been filed in Washington and it was understood and believed that the outcome of that law suit would determine how much money the claimants received and that it would apply to all claimants not just some; most of the claimants had had experience with or had heard about the Japanese Evacuation Claims program (50 U.S.C. App. 1981—1987)7 and many of them knew generally that under that program, deadlines had been extended and even that the law itself had been changed to include persons who originally were not eligible, to be eligible for repayment of some of their losses due to the Japanese evacuation program, and that persons who previously had been denied payment, later were paid; * * * since the original certificates of deposit were the claimants' only direct evidence of their claim, many of the claimants were reluctant to part with this evidence, especially at a time when theGovernment was recognizing their claims at less than 2% of their face value, to say nothing of accumulated interest over the years; moreover, many of them felt that to send in their certificates at that time would be taken as agreeing to accept this very small sum in full settlement and they did not want to do that; there were others whose claims were so small that to send in the originals at the figure the Government was offering would net them no return or a very small amount; as individuals, even those claimants who did not have very small claims could not afford to hire an individual lawyer in Washington or to file their own suit but had to rely on what was being done generally and many of them believed that in the end their Government would not try to keep their money but would return it.'
13
The claims of these 4,100 claimants were dismissed when they did not respond within the 45-day administrative limit, pursuant to 8 CFR § 502.25(g), 21 Fed.Reg. 1582.8 Petitioners were notified that their claims were disallowed as abandoned, and told that further proceedings were governed by § 34(f), the provision requiring a final schedule of claimants and providing for judicial review. In May 1961 a final schedule was prepared and sent to all claimants, including petitioners. Petitioners' claims were not included in the schedule, but they were informed that 'Pursuant to Section 34(f) of the Trading with the Enemy Act, as amended, any claimant considering himself aggrieved by this Final Schedule may, within sixty (60) days from the date of the mailing of the Schedule, file in the United States District Court for the District of Columbia a complaint for review of this Schedule. * * *'
14
Such a suit was brought to challenge the proper rate of exchange. It was brought by Mr. Kunio Abe, the same person who had challenged the administrative ruling and whose case was cited by the Government in its letters to petitioners as dispositive of their cases. Abe v. Kennedy, C.A.No.2529—61, D.D.C., was held in abeyance in the District Court pending a determination of the identical issue raised in relation to yen certificates issued by the Sumitomo Bank. The District Court upheld the Attorney General's determination, and the Court of Appeals affirmed, Aratani v. Kennedy, 115 U.S.App.D.C. 97, 317 F.2d 161; 115 U.S.App.D.C. 97, 323 F.2d 427. After this Court granted certiorari in Aratani, 375 U.S. 877, 84 S.Ct. 147, 11 L.Ed.2d 110, the Attorney General entered into a compromise settlement with the plaintiffs in Aratani and Abe, in the latter case approximately at the prewar rate without interest.9 Petitioners here were not included in the class represented by Abe, for his complaint was framed to represent only the class of those claimants listed in the schedule rather than all outstanding claimants. Petitioners therefore filed this suit upon final disposition of the Abe litigation, and long before the dismissal of certiorari in Aratani, asking for similar treatment.10 The Attorney General denied their claims because petitioners were not included in the class represented in the Abe suit and because they had not filed their suit within 60 days after mailing of the schedule as required by § 34(f).
II.
15
Quite apart from any question of governmental estoppel respecting assertion of the statute of limitations, a contention that is sought to be predicated on the foregoing train of events and circumstances, we consider that the limitations period was in any event tolled during the pendency of the Abe litigation, and that petitioners' right to bring their suit was not foreclosed. An analysis of the statutory scheme as devised by Congress persuades us, in the context of this factual setting, that this is the result most consistent with the legislative purpose of this Act.
16
The statutory system embodied in § 34 was intended to provide a method for the fair and equitable distribution of vested enemy assets to American residents. The basic model for the statute was the Federal Bankruptcy Act, a concept revealed in the legislative record by expressions of the Custodian and of those members of Congress principally responsible for the legislation.11 The 60-day limitation on suits was designed to further this end—to aid claimants by expediting a final distribution—and not primarily as a shield for the Government.
17
The Bankruptcy Act, the pattern for this legislation, presents a compelling analogy, pointing the way to the decision which we make in this case. Section 57n, 11 U.S.C. § 93(n), requires notification of claims within six months after the first date set for the first meeting of creditors. Those who fail to file timely claims do not, however, lose all their rights; rather after all duly allowed and properly filed claims have been paid in full, 'claims not filed within the time hereinabove prescribed may nevertheless be filed within such time as the court may fix or for cause shown extend and, if duly proved, shall be allowed against any surplus remaining in such case.'
18
It is true that this equitable principle of the Bankruptcy Act was specifically authorized by a 1938 amendment which was 'designed to remedy the inequity of returning property to the bankrupt as long as there are creditors, however tardy, whose claims have not been satisfied even in part.' 3 Collier, Bankruptcy 57.33, at 398. But it is noteworthy that bankruptcy courts in the exercise of their general equity power had already reached this result long before the principle was enacted into law. As one nisi prius bankruptcy court stated in In re Lenox, D.C., 2 F.2d 92, in 1924, 'This (the statute of limitations) is a provision for the benefit of creditors, not for the benefit of the bankrupt. * * * In the present case, the provisions of the Bankruptcy Act have been complied with, and those who complied with all its provisions have been paid in full. But the fact remains that the petitioner who had reduced his claim to judgment, the existence and validity of which the bankrupt recognized in his schedules and does not now deny, has received nothing. A fund remains in the hands of the trustee.' Id., at 93. The equitable solution, the court held, was to allow the claim, even though untimely. In Williams v. Rice, 5 Cir., 30 F.2d 814, an estate, presumably without assets, was reopened when new assets were discovered. The question was again whether creditors who had not filed timely claims should be allowed to prove their claims. Noting that the time limitation 'is intended primarily to require creditors to prove their claims promptly, in order that the estate may be closed without undue delay,' id., at 815, the Court of Appeals for the Fifth Circuit held that in the absence of negligent failure to file, claimants in such a case could file after the time limitation. See also In re Pierson, D.C., 174 F. 160, where the court allowed the reopening of the estate and the filing of claims past the statutory period when new assets were discovered. But see In re Silk, 2 Cir., 55 F.2d 917, reaching the opposite result.
19
Another, though less precise, analogy in the bankruptcy area can be drawn from Nassau Smelting & Refining Works v. Brightwood Bronze Foundry Co., 265 U.S. 269, 44 S.Ct. 506, 68 L.Ed. 1013. The issue there was whether a creditor whose claim was not proved within the statutory period established for creditors in bankruptcy could nevertheless participate in a composition in bankruptcy. Mr. Justice Brandeis, writing for a unanimous Court, analyzed the statute in terms of its purpose and the various interests involved. From the viewpoint of the other creditors, he found, 'neither the amount which a creditor receives, nor the time when he receives it, can be affected by the amount of others' claims, or by the time of proof, or by their failure to prove. * * * Nor can the time of proof of claims, as distinguished from their allowance, be of legitimate interest to the bankrupt. * * * No reason is suggested why Congress should have wished to bar creditors from participation in the benefits of a composition merely because their claims were not proved within a year of the adjudication. Failure to prove within the year does not harm the bankrupt. Why should he gain thereby? And why should the creditor be penalized by a total loss of his claim?' 265 U.S., at 272—273, 44 S.Ct., at 507.
20
These factors can be applied to the present case with equal force. What purpose does the strict 60-day limitation serve, except as a method of expediting the distribution of vested assets to creditors? But no other creditors are here objecting, for none exist: they have all compromised their claims and yet a surplus remains in the account. The Government itself has no real interest in this fund, for it neither comes out of the common weal nor will any surplus inure to the Treasury. The Attorney General is a mere stakeholder, a custodian in the true sense of the word.12 The only persons who might eventually benefit from the surplus are those general beneficiaries of the War Claims Fund into which any surplus is deposited. But the 60-day rule can hardly be deemed a device for augmenting this general fund at the expense of recognized creditors, expecially in the face of repeated and uncontested expressions of congressional intent to facilitate and expand the rights of American creditors having an interest in these assets.13
III.
21
The foregoing considerations are especially persuasive here when the reason for petitioners' delay in bringing suit is recalled. It was generally known in the Japanese community that a class suit, the Abe case, had been filed in the United States District Court for the District of Columbia. The complaint in that suit outlined the history of the controversy over the proper rate of exchange and it specifically noted that this question was '(t)he sole issue on this complaint for review. * * *' An examination of the complaint, on file at the District Court but presumably not readily available to petitioners who lived on the West Coast, reveals that the plaintiffs included in the class action were defined as those listed on the final schedule rather than all those who filed valid claims. But from a practical standpoint, this definition, which legally excluded these petitioners, made no differentiation between the total group of certificate holders in any material respect. The legal issue raised in the complaint dealt only with the exchange rate; the administrative record filed with the District Court was that of the Abe claim which did apply—at the administrative level—to petitioners; the named plaintiff was also Kunio Abe whose case was cited by the Government as dispositive of petitioners' claims; no action was in any event taken on the complaint which was held in suspense pending determination of the same legal issue in the Aratani case and then dismissed upon settlement with the Abe suit claimants. Since petitioners filed their claim immediately upon settlement of the Abe case, there can be no claim that the course of action they took in any way interfered with the speed or manner in which this litigation was conducted.
22
The only arguable difference it might have made had petitioners filed their action immediately upon publication of the schedule is that the Government's willingness to settle the case might have been dampened because the larger number of plaintiffs would have made settlement more costly to the total fund. Upon examination, however, even this possibility should be discounted when it is recalled that these are not in any real sense government funds, but rather vested assets of an enemy debtor which will be distributed to another class of war victims if petitioners' claims are barred. The Government has no interest in the fund except to enforce the primary congressional mandate that bona fide creditors recover their due. Since the amount in the fund adequately covers a full settlement with all these claimants at the Abe rate, exhausting the surplus should not have played a part in the Government's decision to settle with the Abe claimants.
23
For these reasons we think the statutory purpose is best served by invoking the equitable doctrine of tolling to preserve petitioners' action in which they seek payment on the same basis as that accorded the claimants in Abe.
IV.
24
In light of these circumstances we find the Attorney General's arguments unpersuasive. He argues primarily that the doctrine of estoppel does not apply in this case to prevent assertion of the statute of limitations. We do not reach the estoppel issue, because we hold that the statutory scheme itself requires tolling the limitation period during the pendency of the Abe litigation. In this respect, the Government contends that because this suit is, at least formally, one against the sovereign, see Banco Mexicano, etc. v. Deutsche Bank, 263 U.S. 591, 44 S.Ct. 209, 68 L.Ed. 465, the statute of limitations may not be tolled without express congressional consent. It is well settled, of course, that the Government is ordinarily immune from suit, and that it may define the conditions under which it will permit such actions. E.g., Kendall v. United States, 107 U.S. 123, 2 S.Ct. 277, 27 L.Ed. 437; United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058. It is also true that in many cases this Court has read procedural rules embodied in statutes waiving immunity strictly, with an eye to effectuating a restrictive legislative purpose when Congress relinquishes sovereign immunity. E.g., Kendall v. United States, supra; United States v. Sherwood, supra; Soriano v. United States, 352 U.S. 270, 77 S.Ct. 269, 1 L.Ed.2d 306; compare Crown Coat Front Co. v. United States, 386 U.S. 503, 87 S.Ct. 1177, 18 L.Ed.2d 256.
25
This case is, however, wholly different from those cases on which the Government primarily relies, where the public treasury was directly affected. Here Congress established a method for returning seized enemy assets to United States creditors, assets that were never contemplated as finding their way permanently into the public fisc. As the House and Senate Reports on this statute declare, 'The Custodian has emphasized to the committee that he is anxious to satisfy the proper claims of creditors and the committee concur in the view that there exists a strong moral obligation to satisfy them inasmuch as, but for the vesting of their debtors' property, they would presumably have been able to pursue ordinary remedies against the debtors.' H.R.Rep.No.2398, 79th Cong., 2d Sess., 10 (1946); S.Rep. No. 1839, 79th Cong., 2d Sess., 3—4 (1946). We consider it much more consistent with the overall congressional purpose to apply a traditional equitable tolling principle, aptly suited to the particular facts of this case and nowhere eschewed by Congress, to preserve petitioners' cause of action. Burnett v. New York Central R. Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941; cf. Midstate Horticultural Co. v. Pennsylvania R. Co., 320 U.S. 356, 360, 64 S.Ct. 128, 130, 88 L.Ed. 96.
26
The judgment of the Court of Appeals upholding the dismissal of this action is therefore reversed, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered.
27
Reversed and remanded.
28
Mr. Justice CLARK took no part in the decision of this case.
1
This suit was originally filed against Robert F. Kennedy, then Attorney General. Nicholas deB. Katzenbach was substituted as statutory defendant in the District Court, and Ramsey Clark, the present Attorney General, succeeded him as respondent here by operation of law. Sup.Ct.Rule 48(3).
2
The certificates expressed their value in terms of yen, and bore the following statement, in both Japanese and English:
'This is to certify that the sum of yen _ _ has been submitted to our Head Office, Yokohama, to be placed in Fixed Deposit there in your name at —- percent. per annum for —- months, maturing _ _, subject to the conditions on the back hereof.
'Both principal and interest are payable, when due, at our aforesaid Head Office, Yokohama, upon surrender of this Certificate, properly endorsed and/or sealed.'
3
Section 9(a) of the Trading with the Enemy Act, 50 U.S.C.App. § 9(a).
4
Section 34(a) limits allowable debt claims only to 'those of citizens of the United States or of the Philippine Islands; those of corporations organized under the laws of the United States or any State, Territory, or possession thereof, or the District of Columbia or the Philippine Islands; those of other natural persons who are and have been since the beginning of the war residents of the United States and who have not during the war been interned or paroled pursuant to the Alien Enemy Act; and those acquired by the Custodian.'
5
The Attorney General assumed the duties of the Custodian in 1946 by Executive Order No. 9788, 11 Fed.Reg. 11981.
6
Counsel for petitioners have supplied us with the following information as to the range in amounts of the claims involved in this litigation: 'Of the 1,120 Honda claimants who have * * * retained (our associated California counsel) * * * to the present date, the highest is for 120,000 yen—about $30,000 at the Abe ratio (or about $332 at the Government's original rate) and the lowest claim is for 50 yen, or about $12 (about 14¢ at the lower rate). Among all 4,100 petitioners the largest debt claimant of which we are aware chose other counsel, and his claim was for 246,000 yen (about $60,000) (about $680 at the lower rate). * * *
'The average claim among the 1,120 retainer claimants in Honda is for about $2,000 (at the Abe rate), and the mean considerably lower; the average among all 4,100 petitioners is necessarily more modest still, because it includes the 2,980 claimants who have not even sought representation by counsel in this suit, presumably because of the very small amounts of their claims. * * *'
7
This legislation, enacted in 1948, authorizes the Attorney General to make awards in amounts not to exceed $100,000 'on any claim by a person of Japanese ancestry against the United States arising on or after December 7, 1941, * * * that is * * * a reasonable and natural consequence of the evacuation or exclusion of such person by the appropriate military commander from a military area in Arizona, California, Oregon, or Washington; or from the Territory of Alaska, or the Territory of Hawaii, under authority of Executive Order * * *.' 70 Stat. 513, 50 U.S.C. App. § 1981.
8
The regulation provides: 'A claim shall be deemed abandoned when after request to do so the claimant has not furnished relevant information in support of his claim, or where by virtue of his failure to respond to inquiries regarding the claim it appears that he does not wish to pursue it further.' Neither in his motion to dismiss the complaint in the District Court, nor on review in the Court of Appeals and in this Court, has the Attorney General advanced the argument that failure to comply with this administrative regulation is by itself an independent reason for dismissing this suit. It suffices to say here that such an argument would be open to attack on lines similar to those we hold require tolling the statute of limitations.
9
The claimants in Aratani recovered considerably less than those in Abe because the amounts of their claims exceeded the vested assets of the Sumitoma Bank. 228 F.Supp. 706, 708.
10
The District Court approved the settlements in both Aratani and Abe on March 18, 1964, 228 F.Supp. 706, and entered its final order on May 18, 1964. The present suit was filed May 19, 1964. The writ of certiorari in Aratani was dismissed on March 9, 1965, 380 U.S. 938, 85 S.Ct. 951, 13 L.Ed.2d 826, upon stipulation of counsel that the case had been settled.
11
At the committee hearings on this section, the following dialogue occurred between the Chairman, Congressman Celler of New York, and the Custodian, Mr. Markham:
'Mr. MARKHAM. * * * We propose that the law be changed so that the man could file his claim, but he would be paid on a ratable basis, if there is not enough money for everybody, and that we should have a marshaling of assets and a marshaling of debts, so that everybody would be treated alike and would not depend upon the time when they brought the suit or the order in which the suits were brought.
'MR. CELLER. But you want to be sure that you don't get into a situation where one creditor can fritter away all the assets of an enterprise, and you want to apply them under the principle now applied in the Bankruptcy Act, give each creditor an equitable share in the assets?
'Mr. MARKHAM. That is the way I want it to be done. That is what I want to do.' Hearings before Subcommittee No. 1 of the House Committee on the Judiciary on H.R. 5089, 79th Cong., 2d Sess., 17 (1946). See also, id., at 7, 11—13, 113—114.
Congressman Celler used the same reference when he introduced the bill to the House: 'The bill before us provides that the Alien Property Custodian takes the property and sells it and divides the proceeds equitably among all creditors as pari passu, in bankruptcy.' 92 Cong.Rec. 10217 (1946). And see H.R.Rep. No. 2398, 79th Cong., 2d Sess., 10, 14 (1946); S.Rep. No. 1839, 79th Cong., 2d Sess., 4, 8 (1946).
12
Under the War Claims Act of 1948, undistributed assets of enemy property are transferred to a War Claims Fund for distribution to United States citizens who suffered losses caused by enemy military operations during World War II. 62 Stat. 1246 1247, as amended, 50 U.S.C.App. §§ 39, 2012. That Act also declares that no vested property be returned to the former German or Japanese owners as had been the case with some assets after World War I. § 39(a). See H.R.Rep. No. 976, 80th Cong., 1st Sess., 2—3 (1947); H.R.Rep. No. 2439, 80th Cong., 2d Sess. (1948); S.Rep. No. 1742, 80th Cong., 2d Sess. (1948).
13
See references cited in n. 11, supra. There is nothing in the legislative history of the 1946 Act indicating that Congress had the interests of those who were in effect 'remainder beneficiaries' in mind when imposing the procedures of § 34. It is further noteworthy that in 1953 the Congress refused to enact legislation, supported by the Government, that would have had the effect of wiping out entirely debt claims payable in foreign currency, the Yokohama Bank certificates being the largest group of such debts. See S.Rep. No. 616, 83d Cong., 1st Sess. (1953); 99 Cong.Rec. 7408—7409 (1953).
| 01
|
386 U.S. 542
87 S.Ct. 1197
18 L.Ed.2d 282
Edward John NOWAKOWSKI, Petitioner,v.James F. MARONEY, Superintendent, State Correctional Institution.
No. 222.
Argued March 13, 1967.
Decided April 10, 1967.
Daniel J. O'Hern, for petitioner.
William E. Pfadt, Erie, Pa., for respondent.
PER CURIAM.
1
The petitioner, a prisoner in the Pennsylvania penal system, sought a writ of habeas corpus from the United States District Court for the Western District of Pennsylvania. He alleged, among other things, that his appointed counsel in the state trial which resulted in his conviction had been ineffective, and that he had therefore been denied the aid and assistance of counsel guaranteed by the Constitution. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. The District Court granted Nowakowski a hearing and appointed a lawyer to assist him. Following the hearing and '(v)iewing the record of the trial and the habeas corpus hearing as a whole' the court concluded that Pennsylvania 'cannot be convicted of denying effective aid and assistance of counsel to the relator * * *.' However, the District Judge issued the certificate of probable cause necessary to allow a person in state custody to appeal a denial of federal habeas corpus. 28 U.S.C. § 2253.
2
The lawyers who assisted the petitioner at the habeas hearing were then allowed to withdraw by the District Court. Nowakowski subsequently petitioned the Court of Appeals for the Third Circuit to allow him to appeal in forma pauperis from the District Court's denial of relief. He also asked to be allowed to proceed in the Court of Appeals on written briefs and sought the appointment of counsel. That court denied the petition in the following order:
3
'Upon consideration of appellant's petition for leave to proceed in forma pauperis and to file handwritten briefs; and for appointment of counsel in the above-entitled case;
4
'It is ORDERED that the petition be and it hereby is denied.'
5
Following the Third Circuit's denial of Nowakowski's petition for rehearing, he sought a writ of certiorari from this Court. It was granted, as was his motion to proceed in forma pauperis. 384 U.S. 984, 86 S.Ct. 1893, 16 L.Ed.2d 1003.
6
We hold that the Court of Appeals erred in denying the petitioner the right to appeal after the District Judge had issued a § 2253 certificate of probable cause. It is established law that a circuit judge or justice entertaining an application for a certificate should give 'weighty consideration' to its prior denial by a district judge. United States ex rel. Sullivan v. Heinze, 9 Cir., 250 F.2d 427, 429; Sokol, Federal Habeas Corpus § 17, at 94 (1965). Cf. In re Woods, 9 Cir., 249 F.2d 614, 616. But when a district judge grants such a certificate, the court of appeals must grant an appeal in forma pauperis (assuming the requisite showing of poverty), and proceed to a disposition of the appeal in accord with its ordinary procedure.
7
The order of the Court of Appeals for the Third Circuit is therefore vacated and the case is remanded for further proceedings consistent with this opinion.
8
Order vacated and cause remanded.
| 12
|
386 U.S. 547
87 S.Ct. 1213.
18 L.Ed.2d 288
Robert L. PIERSON et al., Petitioners,v.J. L. RAY et al. J. L. RAY et al., Petitioners, v. Robert L. PIERSON et al.
Nos. 79, 94.
Argued Jan. 11, 1967.
Decided April 11, 1967.
Carl Rachlin, New York City, for Robert L. Pierson and others.
Elizabeth W. Grayson, Jackson, Miss., for J. L. Ray and others.
Mr. Chief Justice WARREN delivered the opinion of Court.
1
These cases present issues involving the liability of local police officers and judges under § 1 of the Civil Rights Act of 1871, 17 Stat. 13, now 42 U.S.C. § 1983.1 Petitioners in No. 79 were members of a group of 15 white and Negro Episcopal clergymen who attempted to use segregated facilities at an interstate bus terminal in Jackson, Mississippi, in 1961. They were arrested by respondents Ray, Griffith, and Nichols, policemen of the City of Jackson, and charged with violating § 2087.5 of the Mississippi Code, which makes guilty of a misdemeanor anyone who congregates with others in a public place under circumstances such that a breach of the peace may be occasioned thereby, and refuses to move on when ordered to do so by a police officer.2 Petitioners3 waived a jury trial and were convicted of the offense by respondent Spencer, a municipal police justice. They were each given the maximum sentence of four months in jail and a fine of $200. On appeal petitioner Jones was accorded a trial de novo in the County Court, and after the city produced its evidence the court granted his motion for a directed verdict. The cases against the other petitioners were then dropped.
2
Having been vindicated in the County Court, petitioners brought this action for damages in the United States District Court for the Southern District of Mississippi, Jackson Division, alleging that respondents had violated § 1983, supra, and that respondents were liable at common law for false arrest and imprisonment. A jury returned verdicts for respondents on both counts. On appeal, the Court of Appeals for the Fifth Circuit held that respondent Spencer was immune from liability under both § 1983 and the common law of Mississippi for acts committed within his judicial jurisdiction. 352 F.2d 213. As to the police officers, the court noted that § 2087.5 of the Mississippi Code was held unconstitutional as applied to similar facts in Thomas v. Mississippi, 380 U.S. 524, 85 S.Ct. 1327, 14 L.Ed.2d 265 (1965).4 Although Thomas was decided years after the arrest involved in this trial, the court held that the policemen would be liable in a suit under § 1983 for an unconstitutional arrest even if they acted in good faith and with probable cause in making an arrest under a state statute not yet held invalid. The court believed that this stern result was required by Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Under the count based on the common law of Mississippi, however, it held that the policemen would not be liable if they had probable cause to believe that the statute had been violated, because Mississippi law does not require police officers to predict at their peril which state laws are constitutional and which are not. Apparently dismissing the common-law claim,5 the Court of Appeals reversed and remanded for a new trial on the § 1983 claim against the police officers because defense counsel had been allowed to cross-examine the ministers on various irrelevant and prejudicial matters, particularly including an alleged convergence of their views on racial justice with those of the Communist Party. At the new trial, however, the court held that the ministers could not recover if it were proved that they went to Mississippi anticipating that they would be illegally arrested because such action would constitute consent to the arrest under the principle of volenti non fit injuria, he who consents to a wrong cannot be injured.
3
We granted certiorari in No. 79 to consider whether a local judge is liable for damages under § 1983 for an unconstitutional conviction and whether the ministers should be denied recovery against the police officers if they acted with the anticipation that they would be illegally arrested. We also granted the police officers' petition in No. 94 to determine if the Court of Appeals correctly held that they could not assert the defense of good faith and probable cause to an action under § 1983 for unconstitutional arrest.6
4
The evidence at the federal trial showed that petitioners and other Negro and white Episcopal clergymen undertook a 'prayer pilgrimage' in 1961 from New Orleans to Detroit. The purpose of the pilgrimage was to visit church institutions and other places in the North and South to promote racial equality and integration, and, finally, to report to a church convention in Detroit. Letters from the leader of the group to its members indicate that the clergymen intended from the beginning to go to Jackson and attempt to use segregated facilities at the bus terminal there, and that they fully expected to be arrested for doing so. The group made plans based on the assumption that they would be arrested if they attempted peacefully to exercise their right as interstate travelers to use the waiting rooms and other facilities at the bus terminal, and the letters discussed arrangements for bail and other matters relevant to arrests.
5
The ministers stayed one night in Jackson, and went to the bus terminal the next morning to depart for Chattanooga, Tennessee. They entered the waiting room, disobeying a sign at the entrance that announced 'White Waiting Room Only—By Order of the Police Department.' They then turned to enter the small terminal restaurant but were stopped by two Jackson police officers, respondents Griffith and Nichols, who had been awaiting their arrival and who ordered them to 'move on.' The ministers replied that they wanted to eat and refused to move on. Respondent Ray, then a police captain and now the deputy chief of police, arrived a few minutes later. The ministers were placed under arrest and taken to the jail.
6
All witnesses including the police officers agreed that the ministers entered the waiting room peacefully and engaged in no boisterous or objectionable conduct while in the 'White Only' area. There was conflicting testimony on the number of bystanders present and their behavior. Petitioners testified that there was no crowd at the station, that no one followed them into the waiting room, and that no one uttered threatening words or made threatening gestures. The police testified that some 25 to 30 persons followed the ministers into the terminal, that persons in the crowd were in a very dissatisfied and ugly mood, and that they were mumbling and making unspecified threatening gestures. The police did not describe any specific threatening incidents, and testified that they took no action against any persons in the crowd who were threatening violence because they 'had determined that the ministers was the cause of the violence if any might occur,'7 although the ministers were concededly orderly and polite and the police did not claim that it was beyond their power to control the allegedly disorderly crowd. The arrests and convictions were followed by this lawsuit.
7
We find no difficulty in agreeing with the Court of Appeals that Judge Spencer is immune from liability for damages for his role in these convictions. The record is barren of any proof or specific allegation that Judge Spencer played any role in these arrests and convictions other than to adjudge petitioners guilty when their cases came before his court.8 Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872). This immunity applies even when the judge is accused of acting maliciously and corruptly, and it 'is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.' (Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868), quoted in Bradley v. Fisher, supra, 349, note, at 350.) It is a judge's duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decisionmaking but to intimidation.
8
We do not believe that this settled principle of law was abolished by § 1983, which makes liable 'every person' who under color of law deprives another person of his civil rights. The legislative record gives no clear indication that Congress meant to abolish wholesale all common-law immunities. Accordingly, this Court held in Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), that the immunity of legislators for acts within the legislative role was not abolished. The immunity of judges for acts within the judicial role is equally well established, and we presume that Congress would have specifically so provided had it wished to abolish the doctrine.9
9
The common law has never granted police officers an absolute and unqualified immunity, and the officers in this case do not claim that they are entitled to one. Their claim is rather that they should not be liable if they acted in good faith and with probable cause in making an arrest under a statute that they believed to be valid. Under the prevailing view in this country a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved. Restatement, Second, Torts § 121 (1965); 1 Harper & James, The Law of Torts § 3.18, at 277—278 (1956); State of Missouri ex rel. and to Use of, Ward v. Fidelity & Deposit Co. of Maryland, 179 F.2d 327 (C.A.8th Cir. 1950). A policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does. Although the matter is not entirely free from doubt,10 the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional on its face or as applied.
10
The Court of Appeals held that the officers had such a limited privilege under the common law of Mississippi,11 and indicated that it would have recognized a similar privilege under § 1983 except that it felt compelled to hold otherwise by our decision in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). monroe v. Pape presented no question of immunity, however, and none was decided. The complaint in that case alleged that '13 Chicago police officers broke into petitioners' home in the early morning, routed them from bed, made them stand naked in the living room, and ransacked every room, emptying drawers and ripping mattress covers. It further allege(d) that Mr. Monroe was then taken to the police station and detained on 'open' charges for 10 hours, while he was interrogated about a two-day-old murder, that he was not taken before a magistrate, though one was accessible, that he was not permitted to call his family or attorney, that he was subsequently released without criminal charges being preferred against him.' 365 U.S., at 169, 81 S.Ct., at 474. The police officers did not choose to go to trial and defend the case on the hope that they could convince a jury that they believed in good faith that it was their duty to assault Monroe and his family in this manner. Instead, they sought dismissal of the complaint, contending principally that their activities were so plainly illegal under state law that they did not act 'under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory' as required by § 1983. In rejecting this argument we in no way intimated that the defense of good faith and probable cause was foreclosed by the statute. We also held that the complaint should not be dismissed for failure to state that the officers had 'a specific intent to deprive a person of a federal right,' but this holding, which related to requirements of pleading, carried no implications as to which defenses would be available to the police officers. As we went on to say in the same paragraph, § 1983 "should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions." 365 U.S., at 187, 81 S.Ct. at 484. Part of the background of tort liability, in the case of police officers making an arrest, is the defense of good faith and probable cause.
11
We hold that the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under § 1983. This holding does not, however, mean that the count based thereon should be dismissed. The Court of Appeals ordered dismissal of the common-law count on the theory that the police officers were not required to predict our decision in Thomas v. Mississippi, 380 U.S. 524, 85 S.Ct. 1327, 14 L.Ed.2d 265. We agree that a police officer is not charged with predicting the future course of constitutional law. But the petitioners in this case did not simply argue that they were arrested under a statute later held unconstitutional. They claimed and attempted to prove that the police officers arrested them solely for attempting to use the 'White Only' waiting room, that no crowd was present, and that no one threatened violence or seemed about to cause a disturbance. The officers did not defend on the theory that they believed in good faith that it was constitutional to arrest the ministers solely for using the waiting room. Rather, they claimed and attempted to prove that they did not arrest the ministers for the purpose of preserving the custom of segregation in Mississippi, but solely for the purpose of preventing violence. They testified, in contradiction to the ministers, that a crowd gathered and that imminent violence was likely. If the jury believed the testimony of the officers and disbelieved that of the ministers, and if the jury found that the officers reasonably believed in good faith that the arrest was constitutional, then a verdict for the officers would follow even though the arrest was in fact unconstitutional The jury did resolve the factual issues in favor of the officers but, for reasons previously stated, its verdict was influenced by irrelevant and prejudicial evidence. Accordingly, the case must be remanded to the trial court for a new trial.
12
It is necessary to decide what importance should be given at the new trial to the substantially undisputed fact that the petitioners went to Jackson expecting to be illegally arrested. We do not agree with the Court of Appeals that they somehow consented to the arrest because of their anticipation that they would be illegally arrested, even assuming that they went to the Jackson bus terminal for the sole purpose of testing their rights to unsegregated public accommodations. The case contains no proof or allegation that they in any way tricked or goaded the officers into arresting them. The petitioners had the right to use the waiting room of the Jackson bus terminal, and their deliberate exercise of that right in a peaceful, orderly, and inoffensive manner does not disqualify them from seeking damages under § 1983.12
13
The judgment of the Court of Appeals is affirmed in part and reversed in part, and the cases are remanded for further proceedings consistent with this opinion.
14
It is so ordered.
15
Judgment of Court of Appeals affirmed in part and reversed in part and cases remanded with directions.
16
Mr. Justice DOUGLAS, dissenting.
17
I do not think that all judges, under all circumstances, no matter how outrageous their conduct are immune from suit under 17 Stat. 13, 42 U.S.C. § 1983. The Court's ruling is not justified by the admitted need for a vigorous and independent judiciary, is not commanded by the common-law doctrine of judicial immunity, and does not follow inexorably from our prior decisions.
18
The statute, which came on the books as § 1 of the Ku Klux Klan Act of April 20, 1871, 17 Stat. 13, provides that 'every person' who under color of state law or custom 'subjects, or causes to be subjected, any citizen * * * 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.' To most, 'every person' would mean every person, not every person except judges. Despite the plain import of those words, the court decided in Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019, that state legislators are immune from suit as long as the deprivation of civil rights which they caused a person occurred while the legislators 'were acting in a field where legislators traditionally have power to act.' Id., at 379, 71 S.Ct. at 789. I dissented from the creation of that judicial exception as I do from the creation of the present one.
19
The congressional purpose seems to me to be clear. A condition of lawlessness existed in certain of the States, under which people were being denied their civil rights. Congress intended to provide a remedy for the wrongs being perpetrated. And its members were not unaware that certain members of the judiciary were implicated in the state of affairs which the statute was intended to rectify. It was often noted that '(i)mmunity is given to crime, and the records of the public tribunals are searched in vain for any evidence of effective redress.' Cong. Globe, 42d Cong., 1st Sess., 374. Mr. Rainey of South Carolina noted that '(T)he courts are in many instances under the control of those who are wholly inimical to the impartial administration of law and equity.' Id., at 394. Congressman Beatty of Ohio claimed that it was the duty of Congress to listen to the appeals of those who 'by reason of popular sentiment or secret organizations or prejudiced juries or bribed judges, (cannot) obtain the rights and privileges due an American citizen * * *.' Id., at 429. The members supporting the proposed measure were apprehensive that there had been a complete breakdown in the administration of justice in certain States and that laws nondiscriminatory on their face were being applied in a discriminatory manner, that the newly won civil rights of the Negro were being ignored, and that the Constitution was being defied. it was against this background that the section was passed, and it is against this background that it should be interpreted.
20
It is said that, at the time of the statute's enactment, the doctrine of judicial immunity was well settled and that Congress cannot be presumed to have intended to abrogate the doctrine since it did not clearly evince such a purpose. This view is beset by many difficulties. It assumes that Congress could and should specify in advance all the possible circumstances to which a remedial statute might apply and state which cases are within the scope of a statute.
21
'Underlying (this) view is an atomistic conception of intention, coupled with what may be called a pointer theory of meaning. This view conceives the mind to be directed toward individual things, rather than toward general ideas, toward distinct situations of fact rather than toward some significance in human affairs that these situations may share. If this view were taken seriously, then we would have to regard the intention of the draftsman of a statute directed against 'dangerous weapons' as being directed toward an endless series of individual objects: revolvers, automatic pistols, daggers, Bowie knives, etc. If a court applies the statute to a weapon its draftsman had not thought of, then it would be 'legislaing,' not 'interpreting,' as even more obviously it would be if it were to apply the statute to a weapon not yet invented when the statute was passed.' Fuller, The Morality of Law 84 (1964).
22
Congress of course acts in the context of existing common-law rules, and in construing a statute a court considers the 'common law before the making of the Act.' Heydon's Case, 3 Co.Rep. 7a, 76 Eng.Rep. 637 (Ex. 1584). But Congress enacts a statute to remedy the inadequacies of the pre-existing law, including the common law.1 It cannot be presumed that the common law is the perfection of reason, is superior to statutory law (Sedgwick, Construction of Statutes 270 (1st ed. 1857); Pound, Common Law and Legislation, 21 Harv.L.Rev. 383, 404—406 (1908)), and that the legislature always changes law for the worse. Nor should the canon of construction 'statutes in derogation of the common law are to be strictly construed' be applied so as to weaken a remedial statute whose purpose is to remedy the defects of the preexisting law.
23
The position that Congress did not intend to change the common-law rule of judicial immunity ignores the fact that every member of Congress who spoke to the issue assumed that the words of the statute meant what they said and that judges would be liable. Many members of Congress objected to the statute because it imposed liability on members of the judiciary. Mr. Arthur of Kentucky opposed the measure because:
24
'Hitherto * * * no judge or court has been held liable, civilly or criminally, for judicial acts * * *. Under the provisions of (section 1) every judge in the State court * * * will enter upon and pursue the call of official duty with the sward of Damocles suspended over him * * *.' Cong. Globe, 42d Cong., 1st Sess., 365—366.
And Senator Thurman noted that:
25
'There have been two or three instances already under the civil rights bill of State judges being taken into the United States district court, sometimes upon indictment for the offense * * * of honestly and conscientiously deciding the law to be as they understood it to be. * * *
26
'Is (section 1) intended to perpetuate that? Is it intended to enlarge it? Is it intended to extend it so that no longer a judge sitting on the bench to decide causes can decide them free from any fear except that of impeachment which never lies in the absence of corrupt motive? Is that to be extended, so that every judge of a State may be liable to be dragged before some Federal judge to vindicate his opinion and to be mulcted in damages if that Federal judge shall think the opinion was erroneous? That is the language of this bill.' Cong. Globe, 42d Cong., 1st Sess., Appendix 217.
27
Mr. Lewis of Kentucky expressed the fear that:
28
'By the first section, in certain cases, the judge of a State court, though acting under oath of office, is made liable to a suit in the Federal court and subject to damages for his decision against a suitor. * * *' Cong. Globe, 42d, Cong., 1st Sess., 385.
29
Yet despite the repeated fears of its opponents, and the explicit recognition that the section would subject judges to suit, the section remained as it was proposed: it applied to 'any person.'2 There was no exception for members of the judiciary. In light of the sharply contested nature of the issue of judicial immunity it would be reasonable to assume that the judiciary would have been expressly exempted from the wide sweep of the section, if Congress had intended such a result.
30
The section's purpose was to provide redress for the deprivation of civil rights. It was recognized that certain members of the judiciary were instruments of oppression and were partially responsible for the wrongs to be remedied. The parade of cases coming to this Court shows that a similar condition now obtains in some of the States. Some state courts have been instruments of suppression of civil rights. The methods may have changed; the means may have become more subtle; but the wrong to be remedied still exists.
31
Today's decision is not dictated by our prior decisions. In Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676, the Court held that a judge who excluded Negroes from juries could be held liable under the Act of March 1, 1875 (18 Stat. 335), one of the Civil Rights Acts. The Court assumed that the judge was merely performing a ministerial function. But it went on to state that the judge would be liable under the statute even if his actions were judicial.3 It is one thing to say that the common-law doctrine of judicial immunity is a defense to a common-law cause of action. But it is quite another to say that the common-law immunity rule is a defense to liability which Congress has imposed upon 'any officer or other person,' as in Ex parte Virginia or upon 'every person' as in these cases.
32
The immunity which the Court today grants the judiciary is not necessary to preserve an independent judiciary. If the threat of civil action lies in the background of litigation, so the argument goes, judges will be reluctant to exercise the discretion and judgment inherent in their position and vital to the effective operation of the judiciary. We should, of course, not protect a member of the judiciary 'who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good'. Gregoire v. Biddle, 2 Cir., 177 F.2d 579, 581. To deny recovery to a person injured by the ruling of a judge acting for personal gain or out of personal motives would be 'monstrous.' Ibid. But, it is argued that absolute immunity is necessary to prevent the chilling effects of a judicial inquiry, or the threat of such inquiry, into whether, in fact, a judge has been unfaithful to his oath of office. Thus, it is necessary to protect the guilty as well as the innocent.4
33
The doctrine of separation of powers is, of course, applicable only to the relations of coordinate branches of the same government, not to the relations between the branches of the Federal Government and those of the States. See Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 706, 7 L.Ed.2d 663. Any argument that Congress could not impose liability on state judges for the deprivation of civil rights would thus have to be based upon the claim that doing so would violate the theory of division of powers between the Federal and State Governments. This claim has been foreclosed by the cases recognizing 'that Congress has the power to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State * * *.' Monroe v. Pape, 365 U.S. 167, 171—172, 81 S.Ct. 473, 476, 5 L.Ed.2d 492. In terms of the power of Congress, I can see no difference between imposing liability on a state police officer (Monroe v. Pape, supra) and on a state judge. The question presented is not of constitutional dimension; it is solely a question of statutory interpretation.
34
The argument that the actions of public officials must not be subjected to judicial scrutiny because to do so would have an inhibiting effect on their work, is but a more sophisticated manner of saying 'The King can do no wrong.'5 Chief Justice Cockburn long ago disposed of the argument that liability would deter judges:
35
'I cannot believe that judges * * * would fail to discharge their duty faithfully and fearlessly according to their oaths and consciences * * * from any fear of exposing themselves to actions at law. I am persuaded that the number of such actions would be infinitely small and would be easily disposed of.
36
While, on the other hand, I can easily conceive cases in which judicial opportunity might be so perverted and abused for the purpose of injustice as that, on sound principles, the authors of such wrong ought to be responsible to the parties wronged.' Dawkins v. Lord Paulet, L.R. 5 Q.B. 94, 110 (C. J. Cockburn, dissenting).
37
This is not to say that a judge who makes an honest mistake should be subjected to civil liability. It is necessary to exempt judges from liability for the consequences of their honest mistakes. The judicial function involves an informed exercise of judgment. It is often necessary to choose between differing versions of fact, to reconcile opposing interests, and to decide closely contested issues. Decisions must often be made in the heat of trial. A vigorous and independent mind is needed to perform such delicate tasks. It would be unfair to require a judge to exercise his independent judgment and then to punish him for having exercised it in a manner which, in retrospect, was erroneous. Imposing liability for mistaken, though honest judicial acts, would curb the independent mind and spirit needed to perform judicial functions. Thus, a judge who sustains a conviction on what he forthrightly considers adequate evidence should not be subjected to liability when an appellate court decides that the evidence was not adequate. Nor should a judge who allows a conviction under what is later held an unconstitutional statute.
38
But that is far different from saying that a judge shall be immune from the consequences of any of his judicial actions, and that he shall not be liable for the knowing and intentional deprivation of a person's civil rights. What about the judge who conspires with local law enforcement officers to 'railroad' a dissenter? What about the judge who knowingly turns a trial into a 'kangaroo' court? Or one who intentionally flouts the Constitution in order to obtain a conviction? Congress, I think, concluded that the evils of allowing intentional, knowing deprivations of civil rights to go unredressed far outweighed the speculative inhibiting effects which might attend an inquiry into a judicial deprivation of civil rights.6
39
The plight of the oppressed is indeed serious. Under City of Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944, the defendant cannot remove to a federal court to prevent a state court from depriving him of his civil rights. And under the rule announced today, the person cannot recover damages for the deprivation.
1
'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.
2
'1. 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 * * * any hotel, motel, store, restaurant, lunch counter, cafeteria, sandwich shop, * * * or any other place of business engaged in selling or serving members of the public, or in or around any free entrance to any such place of business or public building, or to any building owned by another individual, or a corporation, or a partnership or an association, and who fails or refuses to disperse and move on, or disperse or move on, when ordered so to do by any law enforcement officer of any municipality, or county, in which such act or acts are committed, or by any law enforcement officer of the State of Mississippi, or any other authorized person, * * * shall be guilty of disorderly conduct, which is made a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not more than two hundred dollars ($200.00), or imprisonment in the county jail for not more than four (4) months, or by both such fine and imprisonment * * *.'
3
The ministers involved in No. 79 will be designated as 'petitioners' throughout this opinion, although they are the respondents in No. 94.
4
In Thomas various 'Freedom Riders' were arrested and convicted under circumstances substantially similar to the facts of these cases. The police testified that they ordered the 'Freedom Riders' to leave because they feared that onlookers might breach the peace. We reversed without argument or opinion, citing Boynton v. Virginia, 364 U.S. 454, 81 S.Ct. 182, 5 L.Ed.2d 206 (1960) Boynton held that racial discrimination in a bus terminal restaurant utilized as an integral part of the transportation of interstate passengers violates § 216(d) of the Interstate Commerce Act. State enforcement of such discrimination is barred by the Supremacy Clause.
5
Respondents read the court's opinion as remanding for a new trial on this claim. The court stated, however, that the officers 'are immune from liability for false imprisonment at common law but not from liability for violations of the Federal statutes on civil rights. It therefore follows that there should be a new trial of the civil rights claim against the appellee police officers so that there may be a determination of the fact issue as to whether the appellants invited or consented to the arrest and imprisonment.' 352 F.2d at 221.
6
Respondents did not challenge in their petition in No. 94 the holding of the Court of Appeals that a new trial is necessary because of the prejudicial cross-examination. Belatedly, they devoted a section of their brief to the contention that the cross-examination was proper. This argument is no more meritorious than it is timely. The views of the Communist Party on racial equality were not an issue in these cases.
7
Transcript of Record, at 347. (Testimony of Officer Griffith.)
8
Petitioners attempted to suggest a 'conspiracy' between Judge Spencer and the police officers by questioning him about his reasons for finding petitioners guilty in these cases and by showing that he had found other 'Freedom Riders' guilty under similar circumstances in previous cases. The proof of conspiracy never went beyond this suggestion that inferences could be drawn from Judge Spencer's judicial decisions. See Transcript of Record, at 352—371.
9
Since our decision in Tenney v. Brandhove, supra, the courts of appeals have consistently held that judicial immunity is a defense to an action under § 1983. See Bauers v. Heisel, 361 F.2d 581 (C.A.3d Cir. 1966), and cases cited therein.
10
See Caveat, Restatement, Second, Torts § 121, at 207—208 (1965); Miller v. Stinnett, 257 F.2d 910 (C.A.10th Cir. 1958).
11
See Golden v. Thompson, 194 Miss. 241, 11 So.2d 906 (1943).
12
The petition for certiorari in No. 79 also presented the question whether the Court of Appeals correctly dismissed the count based on the common law of Mississippi. We do not ordinarily review the holding of a court of appeals on a matter of state law, and we find no reason for departing from that tradition in this case. The state common-law claim in this case is merely cumulative, and petitioners' right to recover for an invasion of their civil rights, subject to the defense of good faith and probable cause, is adequately secured by § 1983.
1
'Remedial statutes are to be liberally construed.' See generally, Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are To Be Construed, 3 Vand.L.Rev. 395 (1950); Llewellyn, The Common Law Tradition, Appendix C (1960).
2
As altered by the reviser who prepared the Revised Statutes of 1878, and as printed in 42 U.S.C. § 1983, the statute refers to 'every person' rather than to 'any person.'
3
The opinion in Ex parte Virginia, supra, did not mention Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646, which held that a judge could not be held liable for causing the name of an attorney to be struck from the court rolls. But in Bradley, the action was not brought under any of the Civil Rights Acts.
4
Other justifications for the doctrine of absolute immunity have been advanced: (1) preventing threat of suit from influencing decision; (2) protecting judges from liability for honest mistakes; (3) relieving judges of the time and expense of defending suits; (4) removing an impediment to responsible men entering the judiciary; (5) necessity of finality; (6) appellate review is satisfactory remedy; (7) the judge's duty is to the public and not to the individual; (8) judicial self-protection; (9) separation of powers. See generally Jennings, Tort Liability of Administrative Officers, 21 Minn.L.Rev. 263, 271—272 (1937).
5
Historically judicial immunity was a corollary to that theory. Since the King could do no wrong, the judges, his delegates for dispensing justice, 'ought not to be drawn into question for any supposed corruption (for this tends) to the slander of the justice of the King.' Floyd & Barker, 12 Co.Rep. 23, 25, 77 Eng.Rep. 1305, 1307 (Star Chamber 1607). Because the judges were the personal delegates of the King they should be answerable to him alone. Randall v. Brigham, 7 Wall. 523, 539, 19 L.Ed. 285.
6
A judge is liable for injury caused by a ministerial act; to have immunity the judge must be performing a judicial function. See, e.g., Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676; 2 Harper & James, The Law of Torts 1642—1643 (1956). The presence of malice and the intention to deprive a person of his civil rights is wholly incompatible with the judicial function. When a judge acts intentionally and knowingly to deprive a person of his constitutional rights he exercises no discretion or individual judgment; he acts no longer as a judge, but as a 'minister' of his own prejudices.
| 12
|
386 U.S. 605
87 S.Ct. 1209
18 L.Ed.2d 326
Francis Eddie SPECHT, Petitioner,v.Wayne K. PATTERSON, Warden et al.
No. 831.
Argued March 21, 1967.
Decided April 11, 1967.
Michael A. Williams, Denver, Colo., for petitioner.
John E. Bush, Denver, Colo., for respondents.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
We held in Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337, that the Due Process Clause of the Fourteenth Amendment did not require a judge to have hearings and to give a convicted person an opportunity to participate in those hearings when he came to determine the sentence to be imposed. We said:
2
'Under the practice of individualizing punishments, investigational techniques have been given an important role. Probation workers making reports of their investigations have not been trained to prosecute but to aid offenders. Their reports have been given a high value by conscientious judges who want to sentence persons on the best available information rather than on guesswork and inadequate information. To deprive sentencing judges of this kind of information would undermine modern penological procedural policies that have been cautiously adopted throughout the nation after careful consideration and experimentation. We must recognize that most of the information now relied upon by judges to guide them in the intelligent imposition of sentences would be unavailable if information were restricted to that given in open court by witnesses subject to cross-examination. And the modern probation report draws on information concerning every aspect of a defendant's life. The type and extent of this information make totally impractical if not impossible open court testimony with cross-examination. Such a procedure could endlessly delay criminal administration in a retrial of collateral issues.' Id., 249—250, 69 S.Ct. 1084.
3
That was a case where at the end of the trial and in the same proceeding the fixing of the penalty for first degree murder was involved—whether life imprisonment or death.
4
The question is whether the rule of the Williams case applies to this Colorado case where petitioner, having been convicted for indecent liberties under one Colorado statute that carries a maximum sentence of 10 years (Colo.Rev.Stat.Ann. § 40—2—32 (1963)) but not sentenced under it, may be sentenced under the Sex Offenders Act, Colo.Rev.Stat.Ann. §§ 39—19—1 to 10 (1963), for an indeterminate term of from one day to life without notice and full hearing. The Colorado Supreme Court approved the procedure, when it was challenged by habeas corpus (153 Colo. 235, 385 P.2d 423) and on motion to set aside the judgment. 156 Colo. 12, 396 P.2d 838. This federal habeas corpus proceeding resulted, the Court of Appeals affirming dismissal of the writ, 10 Cir., 357 F.2d 325. The case is here on a petition for certiorari, 385 U.S. 968, 87 S.Ct. 516, 17 L.Ed.2d 433.
5
The Sex Offenders Act may be brought into play if the trial court 'is of the opinion that any * * * person (convicted of specified sex offenses), if at large, constitutes a threat of bodily harm to members of the public, or is an habitual offender and mentally ill.' § 1. He then becomes punishable for an indeterminate term of from one day to life on the following conditions as specified in § 2:
6
'(2) A complete psychiatric examination shall have been made of him by the psychiatrists of the Colorado psychopathic hospital or by psychiatrists designated by the district court; and
7
'(3) A complete written report thereof submitted to the district court. Such report shall contain all facts and findings, together with recommendations as to whether or not the person is treatable under the provisions of this article; whether or not the person should be committed to the Colorado state hospital or to the state home and training schools as mentally ill or mentally deficient. Such report shall also contain the psychiatrist's opinion as to whether or not the person could be adequately supervised on probation.'
8
This procedure was followed in petitioner's case; he was examined as required and a psychiatric report prepared and given to the trial judge prior to the sentencing. But there was no hearing in the normal sense, no right of confrontation and so on.
9
Petitioner insists that this procedure does not satisfy due process because it allows the critical finding to be made under § 1 of the Sex Offenders Act (1) without a hearing at which the person so convicted may confront and cross-examine adverse witnesses and present evidence of his own by use of compulsory process, if necessary; and (2) on the basis of hearsay evidence to which the person involved is not allowed access.
10
We adhere to Williams v. People of State of New York, supra; but we decline the invitation to extend it to this radically different situation. These commitment proceedings whether denominated civil or criminal are subject both to the Equal Protection Clause of the Fourteenth Amendment as we held in Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620, and to the Due Process Clause. We hold that the requirements of due process were not satisfied here.
11
The Sex Offenders Act does not make the commission of a specified crime the basis for sentencing. It makes one conviction the basis for commencing another proceeding under another Act to determine whether a person constitutes a threat of bodily harm to the public, or is an habitual offender and mentally ill. That is a new finding of fact (Vanderhoof v. People of State of Colorado, 152 Colo. 147, 149, 380 P.2d 903, 904) that was not an ingredient of the offense charged. The punishment under the second Act is criminal punishment even though it is designed not so much as retribution as it is to keep individuals from inflicting future harm.1 United States v. Brown, 381 U.S. 437, 458, 85 S.Ct. 1707, 1720, 14 L.Ed.2d 484.
12
The Court of Appeals for the Third Circuit in speaking of a comparable Pennsylvania statute2 said:
13
'It is a separate criminal proceeding which may be invoked after conviction of one of the specified crimes. Petitioner therefore was entitled to a full judicial hearing before the magnified sentence was imposed. At such a hearing the requirements of due process cannot be satisfied by partial or niggardly procedural protections. A defendant in such a proceeding is entitled to the full panoply of the relevant protections which due process guarantees in state criminal proceedings. He must be afforded all those safeguards which are fundamental rights and essential to a fair trial, including the right to confront and cross-examine the witnesses against him.' United States ex rel. Gerchman v. Maroney, 3 Cir., 355 F.2d 302, 312.
14
We agree with that view. Under Colorado's criminal procedure, here challenged, the invocation of the Sex Offenders Act means the making of a new charge leading to criminal punishment. The case is not unlike those under recidivist statutes where an habitual criminal issue is 'a distinct issue' (Graham v. State of West Virginia, 224 U.S. 616, 625, 32 S.Ct. 583, 56 L.Ed. 917) on which a defendant 'must receive reasonable notice and an opportunity to be heard.' Oyler v. Boles, 368 U.S. 448, 452, 82 S.Ct. 501, 504, 7 L.Ed.2d 446; Chandler v. Fretag, 348 U.S. 3, 8, 75 S.Ct. 1, 99 L.Ed. 4. Due process, in other words, requires that he be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own. And there must be findings adequate to make meaningful any appeal that is allowed. The case is therefore quite unlike the Minnesota statute3 we considered in State of Minnesota ex rel. Pearson v. Probate Court of Ramsey County, Minn., 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744, where in a proceeding to have a person adjudged a 'psychopathic personality' there was a hearing where he was represented by counsel and could compel the production of witnesses on his behalf. Id., at 275, 60 S.Ct. at 526. None of these procedural safeguards we have mentioned is present under Colorado's Sex Offenders Act. We therefore hold that it is deficient in due process as measured by the requirements of the Fourteenth Amendment. Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923.
15
Reversed.
16
Reversed.
17
Mr. Justice HARLAN agrees with the conclusions reached by the Court, but upon the premises set forth in his opinion concurring in the result in Pointer v. State of Texas, 380 U.S. 400, 408, 85 S.Ct. 1065, 13 L.Ed.2d 923.
1
Provisions for probation are provided (Colo.Rev.Stat.Ann. § 39—19—5—(3) (1963)); and the Board of Parole has broad powers over the person sentenced. (Colo.Rev.Stat.Ann. §§ 39—19—6 to 10 (1963)).
2
The Pennsylvania statute (Pa.Stat., Tit. 19, §§ 1166—1174 (1964)) provides that if a court is of the opinion that a person convicted before it of certain sex offenses 'if at large, constitutes a threat of bodily harm to members of the public, or is an habitual offender and mentally ill,' it may, 'in lieu of the sentence now provided by law,' sentence the person to a state institution for an indeterminate period from one day to life. Pa.Stat., Tit. 19, § 1166 (1964). The sentence is imposed only after the defendant has undergone a psychiatric examination and the court has received a report containing all the facts necessary to determine whether it shall impose the sentence under the act. Pa.Stat., Tit. 19, § 1167 (1964). If the court, after receiving the report, 'shall be of the opinion that it would be to the best interests of justice to sentence such person under the provisions of (the) act, he shall cause such person to be arraigned before him and sentenced to' a state institution designated by the Department of Welfare. Pa.Stat., Tit. 19, § 1170 (1964). After a person is sentenced under the act, the state Board of Parole has exclusive control over him. Pa.Stat., Tit. 19, § 1173 (1964).
3
The Minnesota statute (Chapter 369 of the Laws of Minnesota of 1939) provided that the laws relating to persons found to be insane were to apply to 'persons having a psychopathic personality.' It defined the term 'psychopathic personality' as meaning the existence in a person of certain characteristics which rendered him 'irresponsible for his conduct with respect to sexual matters and thereby dangerous to other persons.' The statute was not criminal in nature, and was not triggered by a criminal conviction. A person found to have a 'psychopathic personality' would be committed, just as a person found to be insane. See Mason's Minn.Stat. c. 74, § 8992—176 (1938 Supp.).
| 01
|
386 U.S. 670
87 S.Ct. 1244
18 L.Ed.2d 394
Joyce C. THORPE, Petitioner,v.HOUSING AUTHORITY OF the CITY OF DURHAM.
No. 712.
Argued March 21, 1967.
Decided April 17, 1967.
James M. Nabrit, III, New York City, for petitioner.
Daniel K. Edwards, Durham, N.C., for respondent.
PER CURIAM.
1
In November 1964, the petitioner became a tenant in McDougald Terrace, a federally assisted, low-rent public housing project owned and managed by the Housing Authority of the City of Durham, North Carolina. The lease provided for a tenancy from month to month, and gave both the tenant and the Authority the right to terminate by giving notice at least 15 days before the end of any monthly term. On August 10, 1965, the petitioner was elected president of a McDougald Terrace tenants' organization. The next day the Authority gave her notice of termination of her tenancy as of August 31. The notice did not give any reasons for the cancellation, and the Authority declined to accede to the petitioner's demands for an explanation. The petitioner refused to vacate the premises, and the Authority thereupon brought a summary ejectment action in the Justice of the Peace Court in Durham. The Authority there obtained a judgment of eviction, which was affirmed on appeal by the Superior Court of Durham County and the Supreme Court of North Carolina.1 We granted certiorari. 385 U.S. 967, 87 S.Ct. 515, 17 L.Ed.2d 432. The petitioner has remained in possession of her apartment pursuant to a stay granted by the North Carolina Supreme Court.
2
The petitioner contends that she was constitutionally entitled to notice setting forth the reasons for the termination of her lease, and a hearing thereon. She also suggests that her eviction was invalid because it allegedly was based on her participation in constitutionally protected associational activities.2 We find it unnecessary to reach the large issues stirred by these claims, because of a significant development that has occurred since we granted the writ of certiorari.
3
On February 7, 1967, the Department of Housing and Urban Development issued a directive to local housing authorities. After reciting the fact that dissatisfaction had been expressed with eviction procedures in low-rent housing projects and that suits had been brought to challenge evictions in which the local authority had not given any reason for its action, the circular stated:
4
'Since this is a federally assisted program, we believe it is essential that no tenant be given notice to vacate without being told by the Local Authority, in a private conference or other appropriate manner, the reasons for the eviction, and given an opportunity to make such reply or explanation as he may wish.'
5
The circular goes on to require local authorities to keep future records of evictions, the reasons therefor, and summaries of any conferences held with tenants in connection with evictions.3
6
While the directive provides that certain records shall be kept commencing with the date of its issuance, there is no suggestion that the basic procedure it prescribes is not to be followed in all eviction proceedings that have not become final. If this procedure were accorded to the petitioner, her case would assume a posture quite different from the one now presented.4 Compare Wabash R. Co., State of Missouri ex rel., v. Public Service Comm'n, 273 U.S. 126, 131, 47 S.Ct. 311, 313, 71 L.Ed. 575; Patterson v. State of Alabama, 294 U.S. 600, 607, 55 S.Ct. 575, 578, 79 L.Ed. 1082; Klapprott v. United States, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266.
7
The judgment of the Supreme Court of North Carolina is accordingly vacated, and the case remanded for such further proceedings as may be appropriate in the light of the February 7 circular of the Department of Housing and Urban Development.
8
It is so ordered.
9
Judgment vacated and case remanded.
10
Mr. Justice DOUGLAS, concurring.
11
Petitioner and her children have been tenants in a low-income housing project constructed with federal and state funds and operated by the Housing Authority of the City of Durham, an agency of the State of North Carolina. The Housing Authority was established under state law and is 'a public body and a body corporate and politic, exercising public powers.' N.C.Gen.Stat. § 157—9 (1964). It has 'all the powers necessary or convenient to carry out and effectuate the purposes and provisions' of the North Carolina Housing Authorities Law (N.C.Gen.Stat. § 157—1 et seq. (1964)), including the powers 'to manage as agent of any city or municipality * * * any housing project constructed or owned by such city' and 'to act as agent for the federal government in connection with the acquisition, construction, operation and/or management of a housing project.' Id., § 157—9 (1964).
12
The lease under which petitioner has occupied the project had an initial term from November 11 to November 30, 1964, and provided that it would be automatically renewed thereafter for successive terms of one month, provided there were no changes in income or family composition and no violations of the lease terms. The lease provides that '(t)he Management may terminate this lease by giving to the Tenant notice in writing of such termination fifteen * * * days prior to the last day of the term.' The lease 'shall be automatically terminated at the option of the Management' with an immediate right of re-entry and all notices required by law waived, if the tenant misrepresents a material fact in his application or if 'the Tenant fails to comply with any of the provisions of (the) lease.'
13
As I have said, petitioner and her children moved into their home in the project on November 11, 1964. All apparently went well for eight months; the record reveals no complaints from the manager of the housing project. On August 10, 1965, petitioner was elected president of the Parents' Club, a group composed of tenants of the housing project. On August 11, 1965, the Housing Authority's Executive Director delivered a notice that petitioner's lease would be canceled effective August 31, at which time she would have to vacate the premises. No reasons were given for the sudden cancellation. The Authority merely referred to the provision of the lease stating that management may terminate the lease by giving the tenant notice 15 days prior to the last day of the term.
14
Petitioner requested a hearing to determine the reason for the termination; the request was summarily denied. Since she was given no reason and no hearing, petitioner refused to vacate her home. The Housing Authority brought a summary ejectment action in the Justice of the Peace Court of Durham; the court ordered that petitioner and her family be removed from their home. Petitioner appealed to the Superior Court. It was stipulated that the Superior Court could make findings and decide the case on the basis of the stipulations and affidavits. Petitioner's motion to quash claimed that her 'eviction primarily resulted from her community activities as an organizer of tenants, thus constituting an unconstitutional abridgement of her freedom of expression and a denial of equal protection of the laws.' Her affidavit alleged 'that her eviction was prompted by (the) Manager of the Housing Authority, who wants to get her out of the project because of her efforts to organize the tenants of (the housing project) * * *.' It was stipulated that the Executive Director of the Housing Authority would testify that 'whatever reason there may have been, if any, for giving notice to (petitioner) of the termination of her lease, it was not for the reason that she was elected president of any group organized in (the housing project) * * *.' (Emphasis added.) The Superior Court found that petitioner had not been evicted due to her efforts to organize the tenants nor due to her election as president of the Parents' Club. The court held that the Housing Authority was not required to give petitioner a hearing and was not required to give any reason for the lease termination.
15
The North Carolina Supreme Court affirmed. 267 N.C. 431, 148 S.E.2d 290. It held that the Housing Authority is the 'owner' of the apartment and that petitioner 'has no right to occupy it except insofar as such right is conferred upon her by the written lease which she and the (Housing Authority) plaintiff signed.' Id., at 433, 148 S.E.2d, at 291. Since petitioner had refused to quit after the Housing Authority terminated the lease, she could be evicted so as to restore to the Authority' the possession of that which belongs to it.' Id., at 433, 148 S.E.2d at 291—292. The court thought it 'immaterial what may have been the reason for the lessor's unwillingness to continue the relationship of landlord and tenant * * *.' Id., at 433, 148 S.E.2d, at 292. Under the rationale of the North Carolina Supreme Court, a public housing authority, organized under state law and operating a housing project financed by federal and state funds, is assimilated to the position of a private property owner who can terminate a lease for any reason or no reason at all.
16
The circular upon which the Court bases its decision to vacate and remand comes from the office of the Assistant Secretary for Renewal and Housing Assistance and was issued February 7, 1967, after we granted certiorari. It is directed to 'Local Housing Authorities, Assistant Regional Administrators for Housing Assistance, and HAA Division and Branch Heads' and reads in part:
17
'Since this is a federally assisted program, we believe it is essential that no tenant be given notice to vacate without being told by the Local Authority, in a private conference or other appropriate manner, the reasons for the eviction, and given an opportunity to make such reply or explanation as he may wish.'
18
It goes on to provide that '(i)n addition to informing the tenant of the reason(s) for any proposed eviction action, from this date each Local Authority shall maintain a written record of every eviction from its federally assisted public housing,' specifies the information to be contained in the record and provides that the records are to be available to HUD representatives for review.
19
This circular superseded a prior circular which stated that the Public Housing Administration 'strongly urge(s), as a matter of good social policy, that Local Authorities in a private conference inform any tenants who are given (notices to vacate) of the reasons for this action.'
20
This case presents two issues, neither of which is resolved by the circular. The first is whether a tenant in a publicly assisted housing project operated by a state agency can be evicted for any reason or no reason at all. The second is whether a tenant in such a housing project can be evicted for the exercise of a First Amendment right.
21
The circular merely provides that the tenant be told 'the reasons for the eviction, and (be) given an opportunity to make such reply or explanation as he may wish.' From this it may be inferred that the Housing Authority must have a reason for the eviction. But the circular does not specifically state the reasons which can support eviction; it does not state that a tenant cannot be evicted for his stand on civil rights; it does not even broach the subject. It is argued that the circular provides that the lease can be terminated only after an administrative hearing. It certainly would be desirable if a housing authority held a hearing prior to the termination of the lease. The circular, which may be no more than a press release, does not so provide. Moreover, is there a constitutional requirement for an administrative hearing where, as here, the tenant can have a full judicial hearing when the authority attempts to evict him through judicial process? Petitioner has had a hearing in the state courts. The immediate question is what reasons can support an eviction after hearing.
22
Over and over again we have stressed that 'the nature and the theory of our institutions of government, the principles upon which they are supposed to rest * * * do not mean to leave room for the play and action of purely personal and arbitrary power' (Yick Wo. v. Hopkins, 118 U.S. 356, 369—370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220) and that the essence of due process is 'the protection of the individual against arbitrary action.' Ohio Bell Telephone Co. v. Public Utilities Comm'n, 301 U.S. 292, 302, 57 S.Ct. 724, 729, 81 L.Ed. 1093; Slochower v. Board of Higher Education, 350 U.S. 551, 559, 76 S.Ct. 637, 641, 100 L.Ed. 692. Any suggestion to the contrary 'resembles the philosophy of feudal tenure.' Reich, The New Property, 73 Yale L.J. 733, 769. It is not dispositive to maintain that a private landlord might terminate a lease at his pleasure. For this is government we are dealing with, and the actions of government are circumscribed by the Bill of Rights and the Fourteenth Amendment. 'The government as landlord is still the government. It must not act arbitrarily, for, unlike private landlords, it is subject to the requirements of due process of law. Arbitrary action is not due process.' Rudder v. United States, 96 U.S.App.D.C. 329, 331, 226 F.2d 51, 53.
23
The recipient of a government benefit, be it a tax exemption (Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460), unemployment compensation (Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965), public employment (Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692), a license to practice law (Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574), or a home in a public housing project, cannot be made to forfeit the benefit because he exercises a constitutional right. In United States v. Chicago, M., St. P. & P.R. Co., 282 U.S. 311, 328—329, 51 S.Ct. 159, 163—164, 75 L.Ed. 359, the Court said that 'the right to continue the exercise of a privilege granted by the state cannot be made to depend upon the grantee's submission to a condition prescribed by the state which is hostile to the provisions of the federal Constitution.' This was in the tradition of Frost v. Railroad Comm'n, 271 U.S. 583, 594, 46 S.Ct. 605, 607, 70 L.Ed. 1101, where the Court emphasized that 'If the state may compel the surrender of one constitutional right as a condition of its favor, it may, in like manner, compel a surrender of all. It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.' In Speiser v. Randall, supra, at 518, 78 S.Ct. at 1338, we recognized that 'To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech. Its deterrent effect is the same as if the State were to fine them for this speech. The appellees are plainly mistaken in their argument that, because a tax exemption is a 'privilege' or 'bounty,' its denial may not infringe speech.' No more can a tenant in a public housing project be evicted for the exercise of her right of association, a right protected by the First and Fourteenth Amendments. See, e.g., NAACP v. State of Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488; Bates v. City of Little Rock, 361 U.S. 516, 523, 80 S.Ct. 412, 416, 4 L.Ed.2d 480; Shelton v. Tucker, 364 U.S. 479, 486, 81 S.Ct. 247, 251, 5 L.Ed.2d 231; State of Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 296, 81 S.Ct. 1333, 1335, 6 L.Ed.2d 301; NAACP v. Button, 371 U.S. 415, 430—431, 83 S.Ct. 328, 337, 9 L.Ed.2d 405.
24
This does not mean that a public housing authority is powerless to evict a tenant. A tenant may be evicted if it is shown that he is destroying the fixtures, defacing the walls, disturbing other tenants by boisterous conduct and for a number of other reasons which impair the successful operation of the housing project. Eviction for such reasons will completely protect the viability of the housing project without making the tenant a serf who has a home at the pleasure of the manager of the project or the housing authority.
25
Here, the Superior Court found that petitioner had not been evicted because she had engaged in efforts to organize the tenants of the housing project or because she had been elected president of the Parents' Club. On appeal to the North Carolina Supreme Court, petitioner contended that the finding was erroneous. The State Supreme Court did not pass on the finding of the Superior Court since it concluded that the Housing Authority could terminate the lease and evict petitioner for any reason.* As I have said, it is argued that the circular of the Department of Housing and Urban Development answers petitioner's claim that she was entitled to an administrative hearing before her lease was terminated. But petitioner has already had a hearing in the state courts. And the status of the circular, whether a regulation or only a press release, is uncertain, an uncertainty which the Court does not remove. Vacating and remanding 'for such further proceedings as may be appropriate in the light of the * * * circular' therefore furnishes no guidelines for the state courts on remand, and does not dispose of the basic issue presented. I would vacate and remand to the state courts to determine the precise reason why petitioner was evicted and whether that reason was within the permissible range for state action against the individual.
26
Mr. Justice WHITE, dissenting.
27
I would agree with Mr. Justice DOUGLAS that there are reasons for which the Authority could not terminate petitioner's lease and that the ground alleged by the petitioner to be the cause of her eviction is one of them. The trial court rejected petitioner's allegations. This finding was affirmed by the North Carolina Supreme Court as supported by the evidence, although it did say, erroneously I think, that the reasons for the eviction were 'immaterial.'* There could have been a more adequate record made as to the basis for the eviction but petitioner was afforded a full due process hearing in the lower court and had the opportunity to explore fully why she was evicted. I do not view the federal circular as significant to the resolution of this case, and would not remand on that basis.
28
I would affirm.
1
267 N.C. 431, 148 S.E.2d 290.
2
In the Superior Court proceedings, it was stipulated and agreed: 'that if Mr. C. S. Oldham, the Executive Director of the Housing Authority of the City of Durham, were present and duly sworn and were testifying, he would testify that whatever reason there may have been, if any, for giving notice to Joyce C. Thorpe of the termination of her lease, it was not for the reason that she was elected president of any group organized in McDougald Terrace, and specifically it was not for the reason that she was elected president of any group organized in McDougald Terrace on August 10, 1965 * * *.'
3
The text of the circular is as follows:
'SUBJECT: Terminations of Tenancy in Low-Rent Projects
'Within the past year increasing dissatisfaction had been expressed with eviction practices in public low-rent housing projects. During that period a number of suits have been filed throughout the United States generally challenging the right of a Local Authority to evict a tenant without advising him of the reasons for such eviction.
'Since this is a federally assisted program, we believe it is essential that no tenant be given notice to vacate without being told by the Local Authority, in a private conference or other appropriate manner, the reasons for the eviction, and given an opportunity to make such reply or explanation as he may wish.
'In addition to informing the tenant of the reason(s) for any proposed eviction action, from this date each Local Authority shall maintain a written record of every eviction from its federally assisted public housing. Such records are to be available for review from time to time by HUD representatives and shall contain the following information:
'1. Name of tenant and identification of unit occupied.
'2. Date of notice to vacate.
'3. Specific reason(s) for notice to vacate. For example, if a tenant is being evicted because of undesirable actions, the record should detail the actions which resulted in the determination that eviction should be instituted.
'4. Date and method of notifying tenant with summary of any conferences with tenant, including names of conference participants.
'5. Date and description of final action taken.
'The Circular on the above subject from the PHA Commissioner, dated May 31, 1966, is superseded by this Circular.
'(s) DON HUMMEL
'Assistant Secretary for Renewal and Housing Assistance'
The superseded circular of May 31, 1966, stated that the federal authorities 'strongly urge, as a matter of good social policy, that Local Authorities in a private conference inform any tenants who are given (eviction) notices of the reasons for this action.'
4
Although the circular does not specify the authority under which it is issued, federal authorities are given general statutory power to make 'such rules and regulations as may be necessary to carry out' federal programs for assistance to low-rent housing projects. United States Housing Act of 1937, § 8, 50 Stat. 891, as amended, 42 U.S.C. § 1408. The legal effect of the circular, the extent to which it binds local housing authorities, and whether it is in fact applicable to the petitioner are questions we do not now decide.
*
In the statement of facts preceding the names of counsel, there is an assertion that '(t)he (Superior) (C)ourt made findings of fact, each of which is supported by the stipulations or by the evidence in record.' 267 N.C., at 432, 148 S.E.2d, at 290—291. Following this is a recitation of the findings of the Superior Court, including the finding that '(w)hatever may have been the (Authority's) reason for terminating the lease, it was neither that the defendant had engaged in efforts to organize the tenants of (the housing project) nor that she was elected president of a group which was organized in (the housing project) * * *.' Id., at 432, 148 S.E.2d, at 291. My Brother WHITE argues that this amounted to an affirmance of the Superior Court's finding as supported by the evidence. But, to me, such a claim is belied by the court's statement, in the body of its opinion, that it was 'immaterial what may have been the reason for the lessor's unwillingness to continue the relationship of landlord and tenant.' Id., at 433, 148 S.E.2d, at 292. This indicates that the North Carolina Supreme Court did not make an independent review of the record to determine whether the Superior Court's finding as to the cause of eviction was supported by the evidence since it thought the reason for eviction immaterial.
*
The statement of facts in the Supreme Court opinion, upon which I indeed rely, see footnote of my Brother DOUGLAS' concurring opinion, is, as I understand it, prepared by the court and in North Carolina is considered official.
| 89
|
386 U.S. 664
87 S.Ct. 1278
18 L.Ed.2d 389
HOUSTON INSULATION CONTRACTORS ASSOCIATION, Petitioner,v.NATIONAL LABOR RELATIONS BOARD. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HOUSTON INSULATION CONTRACTORS ASSOCIATION.
Nos. 206 and 413.
Argued Jan. 19, 1967.
Decided April 17, 1967.
Rehearing Denied May 29, 1967.
See 387 U.S. 938, 87 S.Ct. 2047.
W. D. Deakins, Jr., Houston, Tex., for Houston Insulation Contractors assn.
Norton J. Come, Washington, D.C., for N.L.R.B.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
These are companion cases to Nos. 110 and 111, National Woodwork Mfrs. Assn. v. NLRB, and NLRB v. National Woodwork Mfrs. Assn., 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357. A provision of the collective bargaining agreement between the Houston Insulation Contractors Association and Local 22, International Association of Heat and Frost Insulators and Asbestos Workers, AFL-CIO, provides, in pertinent part, that the employer will not contract out work relating to 'the preparation, distribution and application of pipe and boiler coverings.' In No. 206, the Contractors Association seeks review of the dismissal by the National Labor Relations Board, 148 N.L.R.B. 866, affirmed by the Court of Appeals for the Fifth Circuit, 357 F.2d 182, 189, of § 8(b)(4)(B) charges brought against Local 22 because of its activities designed to enforce the agreement. National Labor Relations Act, as amended, 73 Stat. 543. In No. 413, the Board challenges the holding of the Court of Appeals, reversing the Board, that similar conduct by a sister Local 113, designed to protect the work guaranteed to Local 22 by the agreement, violated § 8(b)(4)(B). We granted both petitions and set them for argument with Nos. 110 and 111. We affirm in No. 206 and reverse in No. 413.
2
No. 206: Johns-Manville Company, a member of the Contractors Association, engaged in a construction project in Texas City, Texas, purchased from Techalloy Corporation, a manufacturer of insulation materials, stainless steel bands used to fasten asbestos material around pipes to be insulated. The bands had been precut to specification by Techalloy's employees. Customarily, Johns-Manville had ordered rolls of wire which were then cut to size by members of Local 22. The cutting work was reserved for Johns-Manville employee members of Local 22 by the quoted provision of the collective bargaining agreement between the Association and the Local. Agents of Local 22 instructed its members on the jobsite not to install the precut bands. After the hearing on the complaint issued on the Contractors' Association's charge that this conduct violated § 8(b)(4)(B), the Board held that '(t)he conduct complained of herein was taken to protest * * * a deprivation of work, its object being to protect or preserve for employees certain work customarily performed by them. This conduct constituted primary activity and is protected by the Act * * *.'148 N.L.R.B., at 869. The Court of Appeals found that there was substantial evidence to support this finding and sustained it.1 The Association here attacks the substantiality of the evidence supporting the Board's finding, but we agree with the Court of Appeals. See Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. In that circumstance our holding today in National Woodwork Mfrs. Assn. v. NLRB, supra, requires an affirmance in No. 206.
3
No. 413: Armstrong Company, a member of the Contractors Association, was engaged in a construction project in Victoria, Texas, within the jurisdiction of Local 113 of the Heat and Frost Insulators and Asbestos Workers. The cutting and mitering of asbestos fittings for such jobs was customarily performed at Armstrong's Houston shop, which was within Local 22's jurisdiction. Armstrong purchased from Thorpe Company, a manufacturer of insulation materials, asbestos fittings upon which the cutting and mitering work had already been performed. Agents of Local 113 informed Armstrong that fittings would not be installed unless the cutting and mitering had been performed by its sister Local 22 as provided by Local 22's bargaining agreement.2 The Board found, as it had in No. 206, that the object of this refusal was primary the preservation of work customarily performed by Armstrong's own employees. 148 N.L.R.B., at 869. The Court of Appeals reversed on the ground that Local 113 'had no economic interest in Local 22's claim of breach of contract,' and that therefore 'it was coercing Armstrong not for its own benefit but for the benefit of another local at the expense of a neutral employer.' 357 F.2d, at 189. We disagree.
4
National Woodwork Mfrs., supra, holds that collective activity by employees of the primary employer, the object of which is to affect the labor policies of that primary employer, and not engaged in for its effect elsewhere, is protected primary activity. 'Congress was not concerned to protect primary employers against pressures by disinterested unions, but rather to protect disinterested employers against direct pressures by any union.'3 The finding of the Board, supported by substantial evidence, was that Local 113's object was to influence Armstrong in a dispute with Armstrong employees, and not for its effect elsewhere.
5
Primary employees have traditionally been assured the right to take concerted action against their employer to gain the 'mutual aid or protection' guaranteed by § 7 of the National Labor Relations Act, as amended, 61 Stat. 140, whether or not the resolution of the particular dispute directly affects all of them. As Judge Learned Hand stated in Labor Board v. Peter Cailler Kohler Swiss Chocolates Co., 2 Cir., 130 F.2d 503, 505—506:
6
'When all the other workmen in a shop make common cause with a fellow workman over his separate grievance, and go out on strike in his support, they engage in a 'concerted activity' for 'mutual aid or protection,' although the aggrieved workman is the only one of them who has any immediate stake in the outcome. The rest know that by their action each one of them assures himself, in case his turn ever comes, of the support of the one whom they are all then helping; and the solidarity so established is 'mutual aid' in the most literal sense, as nobody doubts.'
7
A boycott cannot become secondary because engaged in by primary employees not directly affected by the dispute, or because only engaged in by some of the primary employees, and not the entire group. Since that situation does not involve the employer in a dispute not his own, his employees' conduct in support of their fellow employees is not secondary and, therefore, not a violation of § 8(b)(4)(B).
8
The judgment of the Court of Appeals in No. 206 is affirmed and in No. 413 is reversed.
9
It is so ordered.
10
Judgment of Court of Appeals in No. 206 affirmed and in No. 413 reversed.
11
Mr. Justice BLACK, Mr. Justice DOUGLAS, Mr. Justice CLARK, and Mr. Justice STEWART dissent for the reasons expressed in Mr. Justice STEWART'S dissenting opinion in National Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 650, 87 S.Ct. 1271, 18 L.Ed.2d 381.
1
The Association did not charge the Union with violation of § 8(e) ( 73 Stat. 543), and the validity of the work-preservation clause was not an issue in the hearing before the Board. But the Board appears to have assumed that the clause was valid in holding that the object of the Union's conduct pursuant thereto was a primary one of work preservation. The Court of Appeals expressly held, as an aspect of its finding that § 8(b)(4)(B) was not violated by Local 22's activities, that the clause was valid. 357 F.2d, at 188—189.
2
A mitered fitting is described by the president of Thorpe Company as 'an insulation item that is used to cover something other than a straight piece of pipe in a pipe line, and this is made by taking standard insulation pipe covering and cutting it on a bias or miter and then gluing it together or sticking it together so that it will conform to the fitting that you are trying to shape it to.'
3
United Association of Journeymen, Local 106 (Columbia Southern Chemical Corporation), 110 N.L.R.B. 206, 209.
| 67
|
386 U.S. 612
87 S.Ct. 1250
18 L.Ed.2d 357
NATIONAL WOODWORK MANUFACTURERS ASSOCIATION et al., Petitioners,v.NATIONAL LABOR RELATIONS BOARD. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NATIONAL WOODWORK MANUFACTURERS ASSOCIATION et al.
Nos. 110 and 111.
Argued Jan. 18, 19, 1967.
Decided April 17, 1967.
Rehearing Denied May 22, 1967.
See 387 U.S. 926, 87 S.Ct. 2026.
[Syllabus from pages 612-614 intentionally omitted]
Charles B. Mahin, Chicago, Ill., for petitioners in No. 110 and respondents in No. 111.
Dominick L., Manoli, Washington, D.C., for respondent in No. 110 and petitioner in No. 111.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Under the Landrum-Griffin Act amendments enacted in 1959, 73 Stat. 542, § 8(b) (4)(A) of the National Labor Relations Act, 61 Stat. 141, became § 8(b)(4)(B) and § 8(e) was added. The questions here are whether, in the circumstances of these cases, the Metropolitan District Council of Philadelphia and Vicinity of the United Brotherhood of Carpenters and Joiners of America, AFL—CIO (hereafter the Union), committed the unfair labor practices prohibited by §§ 8(e) and 8(b)(4)(B).1
2
Frouge Corporation, a Bridgeport, Connecticut, was the general contractor on a housing project in Philadelphia. Frouge had a collective bargaining agreement with the Carpenters' International Union under which Frouge agreed to be bound by the rules and regulations agreed upon by local unions with contractors in areas in which Frouge had jobs. Frouge was therefore subject to the provisions of a collective bargaining agreement between the Union and an organization of Philadelphia contractors, the General Building Contractors Association, Inc. A sentence in a provision of that agreement entitled Rule 17 provides that '* * * No member of this District Council will handle * * * any doors * * * which have been fitted prior to being furnished on the job. * * *'2 Frouge's Philadelphia project called for 3,600 doors. Customarily, before the doors could be hung on such projects, 'blank' or 'blind' doors would be mortised for the knob, routed for the hinges, and beveled to make them fit between jambs. These are tasks traditionally performed in the Philadelphia area by the carpenters employed on the jobsite. However, precut and prefitted doors ready to hang may be purchased from door manufacturers. Although Frouge's contract and job specifications did not call for premachined doors, and 'blank' or 'blind' doors could have been ordered, Frouge contracted for the purchase of premachined doors from a Pennsylvania door manufacturer which is a member of the National Woodwork Manufacturers Association, petitioner in No. 110 and respondent in No. 111. The Union ordered its carpenter members not to hang the doors when they arrived at the jobsite. Frouge thereupon withdrew the prefabricated doors and substituted 'blank' doors which were fitted and cut by its carpenters on the jobsite.
3
The National Woodwork Manufacturers Associations and another filed charges with the National Labor Relations Board against the Union alleging that by including the 'will not handle' sentence of Rule 17 in the collective bargaining agreement the Union committed the unfair labor practice under § 8(e) of entering into an 'agreement * * * whereby (the) employer * * * agrees to case or refrain from handling * * * any of the products of any other employer * * *,' and alleging further that in enforcing the sentence against Frouge, the Union committed the unfair labor practice under § 8(b)(4)(B) of 'forcing or requiring any person to cease using * * * the products of any other * * * manufacturer * * *.' The National Labor Relations Board dismissed the charges, 149 N.L.R.B. 646.3 The Board adopted the findings of the Trial Examiner that the 'will not handle' sentence in Rule 17 was language used by the parties to protect and preserve cutting out and fitting as unit work to be performed by the jobsite carpenters. The Board also adopted the holding of the Trial Examiner that both the sentence of Rule 17 itself and its maintenance against Frouge were therefore 'primary' activity outside the prohibitions of §§ 8(e) and 8(b)(4)(B). The following statement of the Trial Examiner was adopted by the Board:
4
'I am convinced and find that the tasks of cutting out and fitting millwork, including doors, has, at least customarily, been performed by the carpenters employed on the jobsite. Certainly, this provision of rule 17 is not concerned with the nature of the employer with whom the contractor does business nor with the employment conditions of other employers or employees, nor does it attempt to control such other employers or employees. The provision guards against encroachments on the cutting out and fitting work of the contract unit employees who have performed that work in the past. Its purpose is plainly to regulate the relations between the general contractor and his own employees and to protect a legitimate economic interest of the employees by preserving their unit work. Merely because it incidentally also affects other parties is no basis for invalidating this provision.
5
'I find that * * * (the provision) is a lawful work-protection or work-preservation provision and that Respondents have not violated Section 8(e) of the Act by entering into agreements containing this provision and by thereafter maintaining and enforcing this provision.' 149 N.L.R.B., at 657.
6
The Court of Appeals for the Seventh Circuit reversed the Board in this respect. 354 F.2d 594, 599. The court held that the 'will not handle' agreement violated § 8(e) without regard to any 'primary' or 'secondary' objective, and remanded to the Board with instructions to enter an order accordingly. In the court's view, the sentence was designed to effect a product boycott like the one condemned in Allen Bradley Co. v. Local Union No. 3, etc., 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939, and Congress meant, in enacting § 8(e) and § 8(b)(4)(B), to prohibit such agreements and conduct forcing employers to enter into them.
7
The Court of Appeals sustained, however, the dismissal of the § 8(b)(4)(B) charge. The court agreed with the Board that the Union's conduct as to Frouge involved only a primary dispute with it, and held that the conduct was therefore not prohibited by that section but expressly protected by the proviso '(t)hat nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing * * *.' 354 F.2d, at 597.
8
We granted certiorari on the petition of the Woodwork Manufacturers Association in No. 110 and on the petition of the Board in No. 111. 384 U.S. 968, 86 S.Ct. 1863, 16 L.Ed.2d 680. We affirm in No. 110 and reverse in No. 111.
I.
9
Even on the doubtful premise that the words of § 8(e) unambiguously embrace the sentence of Rule 17,4 this does not end inquiry into Congress' purpose in enacting the section. It is a 'familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers.' Holy Trinity Church v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226. That principle has particular application in the construction of labor legislation which is 'to a marked degree, the result of conflict and compromise between strong contending forces and deeply held views on the role of organized labor in the free economic life of the Nation and the appropriate balance to be struck between the uncontrolled power of management and labor to further their respective interests.' Local 1976, United Brotherhood of Carpenters, etc. v. National Labor Relations Board (Sand Door), 357 U.S. 93, 99—100, 78 S.Ct. 1011, 1016, 2 L,.ed.2d 1186. See, e.g., National Labor Relations Board v. Fruit & Vegetable Packers, etc., 377 U.S. 58, 84 S.Ct. 1063, 12 L.Ed.2d 129; National Labor Relations Board v. Servette, Inc., 377 U.S. 46, 84 S.Ct. 1098, 12 L.Ed.2d 121; National Labor Relations Board v. Drivers, etc., Local Union, 362 U.S. 274, 80 S.Ct. 706, 4 L.Ed.2d 710; Mastro Plastics Corp. v. National Labor Relations Board, 350 U.S. 270, 76 S.Ct. 349, 100 L.Ed. 309; National Labor Relations Board v. Lion Oil Co., 352 U.S. 282, 77 S.Ct. 330, 1 L.Ed.2d 331; National Labor Relations Board v. International Rice Milling Co., 341 U.S. 665, 71 S.Ct. 961, 95 L.Ed. 1284; Local 761, Intern. Union of Electrical, etc., Workers AFL—CIO v. National Labor Relations Board, 366 U.S. 667, 81 S.Ct. 1285, 6 L.Ed.2d 592.
10
Strongly held opposing views have invariably marked controversy over labor's use of the boycott to further its aims by involving an employer in disputes not his own. But congressional action to deal with such conduct has stopped short of proscribing identical activity having the object of pressuring the employer for agreements regulating relations between him and his own employees. That Congress meant §§ 8(e) and 8(b)(4)(B) to prohibit only 'secondary' objectives clearly appears from an examination of the history of congressional action on the subject; we may, by such an examination, 'reconstitute the gamut of values current at the time when the words were uttered.'5
11
The history begins with judicial application of the Sherman Act (26 Stat. 209) to labor activities. Federal court injunctions freely issued against all manner of strikes and boycotts under rulings that condemned virtually every collective activity of labor as an unlawful restraint of trade.6 The first congressional response to vehement labor protests came with § 20 of the Clayton Act in 1914. That section purported drastically to limit the injunction power of federal courts in controversies 'involving, or growing out of, a dispute concerning terms or conditions of employment.' In terms, it prohibited restraining any person from 'ceasing to perform any work or labor' or 'from ceasing to patronize or to employ any party to such dispute, or from recommending, advising, or persuading others by peaceful and lawful means so to do.' 38 Stat. 738. Labor hailed the law as a charter immunizing its activities from the antitrust laws. This expectation was disappointed when Duplex Printing Press Co. v. Deering, 254 U.S. 443, 41 S.Ct. 172, 65 L.Ed. 349, and Bedford Cut Stone Co. v. Journeymen Stone Cutters' Assn., 274 U.S. 37, 47 S.Ct. 522, 71 L.Ed. 916, held that § 20 immunized only trade union activities directed against an employer by his own employees. In Duplex, the union carried on an elaborate scheme to coerce and restrain neutral customers of the complainant manufacturer from dealing with it, with the object of using these customers as an economic lever to bring the nonunion manufacturer to terms. The Court there stated:
12
'The substance of the matters here complained of is an interference with complainant's interstate trade, intended to have coercive effect upon complainant, and produced by what is commonly known as a 'secondary boycott'; that is, a combination not merely to refrain from dealing with complainant, or to advise or by peaceful means persuade complainant's customers to refrain ('primary boycott'), but to exercise coercive pressure upon such customers, actual or prospective, in order to cause them to withhold or withdraw patronage from complainant through fear or loss or damage to themselves should they deal with it.' Duplex Printing Press Co. v. Deering, supra, at 466, 41 S.Ct. at 176.
13
Thus 'primary' but not 'secondary' pressures were excepted from the antitrust laws. Truax v. Corrigan, 257 U.S. 312, 330, 42 S.Ct. 124, 128, 66 L.Ed. 254, defined 'secondary boycott' as one 'where many combine to injure one in his business by coercing third persons against their will to cease patronizing him by threats of similar injury. * * * The question in such cases is whether the moral coercion exercised over a stranger to the original controversy by steps in themselves legal becomes a legal wrong.' See 1 Teller, Labor Disputes and Collective Bargaining § 145 (1940).7 Commentators of the day, while noting the ambiguity which lurked in the definition, discerned its core concept: union pressure directed at a neutral employer the object of which was to induce or coerce him to cease doing business with an employer with whom the union was engaged in a labor dispute.8
14
In 1932 Congress enacted the Norris-LaGuardia Act and tipped the scales the other way. Its provisions 'established that the allowable area of union activity was not to be restricted, as it had been in the Duplex case, to an immediate employer-employee relation.' United States v. Hutcheson, 312 U.S. 219, 231, 61 S.Ct. 463, 466, 85 L.Ed. 788.9 Congress abolished, for purposes of labor immunity, the distinction between primary activity between the 'immediate disputants' and secondary activity in which the employer disputants and the members of the union do not stand 'in the proximate relation of employer and employee. * * *' H.R.Rep. No. 669, 72d Cong., 1st Sess., 8 (1932). Thus, in Hutcheson, supra, the Court held that the Norris-LaGuardia Act immunized a jurisdictional strike trapping a neutral employer in the middle of an 'internecine struggle between two unions seeking the favor of the same employer,' supra, at 232, 61 S.Ct. at 466. Commentators of the post-Norris-LaGuardia era, as those before, while continuing to deplore the chameleon-like qualities of the term 'secondary boycott,' agreed upon its central aspect: pressure tactically directed toward a neutral employer in a labor dispute not his own.10
15
Labor abuses of the broad immunity granted by the Norris-LaGuardia Act resulted in the Taft-Hartly Act prohibitions against secondary activities enacted in § 8(b)(4)(A), which, as amended in 1959, is now § 8(b)(4)(B). As will appear, the basic thrust of the accommodation there effected by Congress was not expanded by the Landrum-Griffin amendments. The congressional design in enacting § 8(b)(4)(A) is therefore crucial to the determination of the scope of §§ 8(e) and 8(b)(4)(B). Senator Taft said of its purpose:
16
'This provision makes it unlawful to resort to a secondary boycott to injure the business of a third person who is wholly unconcerned in the disagreement between an employer and his employees. * * * (U)nder the provisions of the Norris-LaGuardia Act, it became impossible to stop a secondary boycott or any other kind of a strike, no matter how unlawful it may have been at common law. All this provision of the bill does is to reverse the effect of the law as to secondary boycotts.'11 (Emphasis supplied.)
17
Senator Taft and others frequently sounded this note that § 8(b)(4)(A) was designed to eliminate the 'secondary boycott,'12 and its proponents uniformly cited examples of union conduct which evidenced labor efforts to draw in neutral employers through pressure calculated to induce them to cease doing business with the primary employer.13 And the Senate Committee Report carefully characterized the conduct prohibited by § 8(b)(4)(A) in the same terms:
18
'Thus, it would not be lawful for a union to engage in strike against employer A for the purpose of forcing that employer to cease doing business with employer B; nor would it be lawful for a union to boycott employer A because employer A uses or otherwise deals in the goods of or does business with employer B (with whom the union has a dispute).' S.Rep. No. 105, 80th Cong., 1st Sess., 22, I 1947 Leg.Hist. 428.14
19
The other subsections of § 8(b)(4) of the Act were similarly limited to protecting employers in the position of neutrals between contending parties. The prohibition of subsection (B) against a noncertified union's forcing recognition from an employer was designed to protect the employer trapped between the union and his employees, a majority of whom may not desire to choose the union as their representative. The prohibition of subsection (C) against a demand for recognition when another union has been certified protects the employer trapped between the noncertified and the certified unions. The prohibition of subsection (D) against coercion to force an employer to assign certain work to one of two unions contesting for it protects the employer trapped between the two claims. The central theme pervading these provisions of protection for the neutral employer confirms the assurances of those sponsoring the section that in subsection (A) Congress likewise meant to protect the employer only from union pressures designed to involve him in disputes not his own.15
20
Judicial decisions interpreting the broad language of § 8(b)(4)(A) of the Act uniformly limited its application to such 'secondary' situations.16 This limitation was in 'conformity with the dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own.' National Labor Relations Board v. Denver Bldg. & Const. Trades Council, 341 U.S. 675, 692, 71 S.Ct. 943, 953, 95 L.Ed. 1284. This Court accordingly refused to read § 8(b)(4)(A) to ban traditional primary strikes and picketing having an impact on neutral employers even though the activity fell within its sweeping terms. National Labor Relations Board v. International Rice Milling Co., 341 U.S. 665, 71 S.Ct. 961; see Local 761, Intern. Union of Electrical etc., Workers, AFL—CIO v. National Labor Relations Board, 366 U.S. 667, 81 S.Ct. 1285. Thus, however severe the impact of primary activity on neutral employers, it was not thereby transformed into activity with a secondary objective.
21
The literal terms of § 8(b)(4)(A) also were not applied in the so-called 'ally doctrine' cases, in which the union's pressure was aimed toward employers performing the work of the primary employer's striking employees. The rationale, again, was the inapplicability of the provision's central theme, the protection of neutrals against secondary pressure, where the secondary employer against whom the union's pressure is directed has entangled himself in the vortex of the primary dispute. '(T)he union was not extending its activity to a front remote from the immediate dispute but to one intimately and indeed inextricably united to it.' Douds v. Metropolitan Federation of Architects, etc., 75 F.Supp. 672, 677 (D.C.S.D.N.Y.1948); see National Labor Relations Board v. Business Machine & Office Appliance Mechanics, etc., 228 F.2d 553 (C.A.2d Cir. 1955). We summarized our reading of § 8(b)(4)(A) just a year before enactment of § 8(e):
22
'It aimed to restrict the area of industrial conflict insofar as this could be achieved by prohibiting the most obvious, widespread, and, as Congress evidently judged, dangerous practice of unions to widen that conflict: the coercion of neutral employers themselves not concerned with a primary labor dispute, through the inducement of their employees to engage in strikes or concerted refusals to handle goods.' Local 1976, United Brotherhood of Carpenters, etc., v. National Labor Relations Board (Sand Door), 357 U.S. 93, 100, 78 S.Ct. 1011, 1017, 2 L.Ed.2d 1186.
23
Despite this virtually overwhelming support for the limited reading of § 8(b) (4)(A), the Woodwork Manufacturers Association relied on Allen Bradley Co. v. Local Union No. 3, etc., Electrical Workers, 325 U.S. 797, 65 S.Ct. 1533, as requiring that the successor section, § 8(b)(4)(B), be read as proscribing the District Council's conduct in enforcing the 'will not handle' sentence of Rule 17 against Frouge. The Association points to the references to Allen Bradley in the legislative debates leading to the enactment of the predecessor § 8(b) (4)(A). We think that this is an erroneous reading of the legislative history. Allen Bradley held violative of the antitrust laws a combination between Local 3 of the International Brotherhood of Electrical Workers and both electrical contractors and manufacturers of electrical fixtures in New York City to restrain the bringing in of such equipment from outside the city. The contractors obligated themselves to confine their purchases to local manufacturers, who in turn obligated themselves to confine their New York City sales to contractors employing members of the local, and this scheme was supported by threat of boycott by the contractors' employees. While recognizing that the union might have had an immunity for its contribution to the trade boycott had it acted alone, citing Hutcheson, supra, the Court held immunity was not intended by the Clayton or Norris-LaGuardia Acts in cases in which the union's activity was part of a larger conspiracy to abet contractors and manufacturers to create a monopoly.
24
The argument that the references to Allen Bradley in the debates over § 8(b) (4)(A) have broader significance in the determination of the reach of that section is that there was no intent on Local 3's part to influence the internal labor policies of the boycotted out-of-state manufacturers of electrical equipment. There are three answers to this argument: First, the boycott of out-of-state electrical equipment by the electrical contractors' employees was not in pursuance of any objective relating to pressuring their employers in the matter of their wages, hours, and working conditions; there was no work preservation or other primary objective related to the union employees' relations with their contractor employers. On the contrary, the object of the boycott was to secure benefits for the New York City electrical manufacturers and their employees. 'This is a secondary object because the cessation of business was being used tactically, with an eye to its effect on conditions elsewhere.'17 Second, and of even greater significance on the question of the inferences to be drawn from the references to Allen Bradley, Senator Taft regarded the Local 3 boycott as in effect saying, 'We will not permit any material made by any other union or by any non-union workers to come into New York City and be put into any building in New York City.' 93 Cong.Rec. 4199, II 1947 Leg.Hist. 1107. This clearly shows that the Senator viewed the pressures applied by Local 3 on the employers of its members as having solely a secondary objective. The Senate Committee Report echoes the same view:
25
'(It is) an unfair labor practice for a union to engage in the type of secondary boycott that has been conducted in New York City by local No. 3 of the IBEW, whereby electricians have refused to install electrical products of manufacturers employing electricians who are members of some labor organization other than local No. 3.' S.Rep. No. 105, 80th Cong., 1st Sess., 22, I 1947 Leg.Hist. 428. (Emphasis supplied.)
26
Other statements on the floor of Congress repeat the same refrain.18 Third, even on the premise that Congress meant to prohibit boycotts such as that in Allen Bradley without regard to whether they were carried on to affect labor conditions elsewhere, the fact is that the boycott in Allen Bradley was carried on, not as a shield to preserve the jobs of Local 3 members, traditionally a primary labor activity, but as a sword, to reach out and monopolize all the manufacturing job tasks for Local 3 members. It is arguable that Congress may have viewed the use of the boycott as a sword as different from labor's traditional concerns with wages, hours, and working conditions. But the boycott in the present cases was not used as a sword; it was a shield carried solely to preserve the members' jobs. We therefore have no occasion today to decide the questions which might arise where the workers carry on a boycott to reach out to monopolize jobs or acquire new job tasks when their own jobs are not threatened by the boycotted product.19
27
It is true that the House bill proposed to amend the Clayton Act to narrow labor's immunity from the antitrust laws. H.R. 3020, § 301(b), I 1947 Leg.Hist. 220. This was omitted from the Conference agreement. It is suggested that this history evidences that Congress meant § 8(b)(4)(A) to reach all product boycotts with work preservation motives. The argument is premised on a statement by the House Managers in the House Conference Report that '(s) ince the matters dealt with in this section have to a large measure been effectuated through the use of boycotts, and since the conference agreement contains effective provisions directly dealing with boycotts themselves, this provision is omitted from the conference agreement.' H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., 65, I 1947 Leg.Hist. 569, U.S. Congressional Service, p. 1172. The statement is hardly probative that § 8(b)(4)(A) enacted a broad prohibition in face of the overwhelming evidence that its Senate sponsors intended the narrower reach. Actually the statement at best reflects that the House may have receded from a broader position and accepted that of the Senate. For § 8(b)(4)(A) constituted the 'effective provisions' referred to and the House Managers' understanding of and agreement with the reach of the section as intended by its Senate sponsors is expressed at page 43 of the same Report, I 1947 Leg.Hist. 547:
28
'Under clause (A) strikes or boycotts, or attempts to induce or encourage such action, were made unfair labor practices if the purpose was to force an employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of another, or to cease doing business with any other person. Thus it was made an unfair labor practice for a union to engage in a strike against employer A for the purpose of forcing that employer to cease doing business with employer B. Similarly it would not be lawful for a union to boycott employer A because employer A uses or otherwise deals in the goods of, or does business with, employer B.'
29
In effect Congress, in enacting § 8(b)(4)(A) of the Act, returned to the regime of Duplex Printing Press Co. and Bedford Cut Stone Co., supra, and barred as a secondary boycott union activity directed against a neutral employer, including the immediate employer when in fact the activity directed against him was carried on for its effect elsewhere.
30
Indeed, Congress in rewriting § 8(b)(4)(A) as § 8(b)(4)(B) took pains to confirm the limited application of the section to such 'secondary' conduct. The word 'concerted' in former § 8(b)(4) was deleted to reach secondary conduct directed to only one individual. This was in response to the Court's holding in National Labor Relations Board v. International Rice Milling Co., 341 U.S. 665, 71 S.Ct. 961, that 'concerted' required proof of inducement of two or more employees. But to make clear that the deletion was not to be read as supporting a construction of the statute as prohibiting the incidental effects of traditional primary activity, Congress added the proviso that nothing in the amended section 'shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.'20 Many statements and examples proffered in the 1959 debates confirm this congressional acceptance of the distinction between primary and secondary activity.21
II.
31
The Landrum-Griffin Act amendments in 1959 were adopted only to close various loopholes in the application of § 8(b)(4)(A) which had been exposed in Board and court decisions. We discussed some of these loopholes, and the particular amendments adopted to close them, in National Labor Relations Board v. Servette, Inc., 377 U.S. 46, 51—54, 84 S.Ct. 1098, 1102, 12 L.Ed.2d 121. We need not repeat that discussion here, except to emphasize, as we there said, that 'these changes did not expand the type of conduct which § 8(b)(4)(a) condemned, that is, union pressures calculated to induce the employees of a secondary employer to withhold their services in order to force their employer to cease dealing with the primary employer.' Id., at 52—53, 84 S.Ct. at 1103.
32
Section 8(e) simply closed still another loophole.22 In Local 1976, United Brotherhood of Carpenters, etc., v. National Labor Relations Board (Sand Door), 357 U.S. 93, 78 S.Ct. 1011, the Court held that it was no defense to an unfair labor practice charge under § 8(b)(4)(A) that the struck employer had agreed, in a contract with the union, not to handle nonunion material. However, the Court emphasized that the mere execution of such a contract provision (known as a 'hot cargo' clause because of its prevalence in Teamsters Union contracts), or its voluntary observance by the employer, was not unlawful under § 8(b)(4)(A). Section 8(e) was designed to plug this gap in the legislation by making the 'hot cargo' clause itself unlawful. The Sand Door decision was believed by Congress not only to create the possibility of damage actions against employers for breaches of 'hot cargo' clauses, but also to create a situation in which such clauses might be employed to exert subtle pressures upon employers to engage in 'voluntary' boycotts.23 Hearings in late 1958 before the Senate Select Committee explored seven cases of 'hot cargo' clauses in Teamsters Union contracts, the use of which the Committee found conscripted neutral employers in Teamsters organization campaigns.24
33
This loophole-closing measure likewise did not expand the type of conduct which § 8(b)(4)(A) condemned. Although the language of § 8(e) is sweeping, it closely tracks that of § 8(b)(4)(A), and just as the latter and its successor § 8(b)(4)(B) did not reach employees' activity to pressure their employer to preserve for themselves work traditionally done by them, § 8(e) does not prohibit agreements made and maintained for that purpose.
34
The legislative history of § 8(e) confirms this conclusion. The Kennedy-Ervin bill as originally reported proposed no remedy for abuses of the 'hot cargo' clauses revealed at the hearings of the Select Committee. Senators Goldwater and Dirksen filed a minority report urging that a prohibition against 'hot cargo' clauses should be enacted to close that loophole. Their statement expressly acknowledged their acceptance of the reading of § 8(b)(4)(A) as applicable only 'to protest genuinely neutral employers and their employees, not themselves involved in a labor dispute, against economic coercion designed to give a labor union victory in a dispute with some other employer.'25 They argued that a prohibition against 'hot cargo' clauses was necessary to further that objective. They were joined by Senator McClellan, Chairman of the Select Committee, in their proposal to add such a provision. Their statements in support consistently defined the evil to be prevented in terms of agreements which obligated neutral employers not to do business with other employers involved in labor disputes with the union.26 Senator Gore initially proposed, and the Senate first passed, a 'hot cargo' amendment to the Kennedy-Ervin bill which outlawed such agreements only for 'common carriers subject to Part II of the Interstate Commerce Act.' This reflected the testimony at the Select Committee hearings which attributed abuses of such clauses primarily to the Teamsters Union. Significantly, such alleged abuses by the Teamsters invariably involved uses of the clause to pressure neutral trucking employers not to handle goods of other employers involved in disputes with the Teamsters Union.27
35
The House Labor Committee first reported out a bill containing a provision substantially identical to the Gore amendment.28 The House Report expressly noted that since that proposal tracked the language of § 8(b)(4)(A) 'it preserved the established distinction between primary activities and secondary boycotts.'29 The substitute Landrum-Griffin bill, however, expanded the proposal to cover all industry and not common carriers alone. H.R. 8400, § 705(b)(1) in I 1959 Leg.Hist. 683. Representative Landrum stated, 'I submit if such contracts are bad in one segment of our economy, they are undesirable in all segments.' 105 Cong.Rec. 14343, II 1959 Leg.Hist. 1518. In describing the substitute bill, Representative Landrum pointedly spoke of the situation 'where the union, in a dispute with one employer, puts pressure upon another employer or his employees, in order to force the second employer or his employees, to stop doing business with the first employer, and 'bend his knee to the union's will." Ibid. An analysis of the substitute bill submitted by Representative Griffin referred to the need to plug the various loopholes in the 'secondary boycott' provisions, one of which is the 'hot cargo' agreement.30 In Conference Committee, the Landrum-Griffin application to all industry, and not just to common carriers, was adopted.
36
However, provisos were added to § 8(e) to preserve the status quo in the construction industry, and exempt the garment industry from the prohibitions of §§ 8(e) and 8(b)(4)(B). This action of the Congress is strong confirmation that Congress meant that both §§ 8(e) and 8(e)(4)(B) reach only secondary pressures. If the body of § 8(e) applies only to secondary activity, the garment industry proviso is a justifiable exception which allows what the legislative history shows it was designed to allow, secondary pressures to counteract the effects of sweatshop conditions in an industry with a highly integrated process of production between jobbers, manufacturers, contractors and subcontractors.31 First, this motivation for the proviso sheds light on the central theme of the body of § 8(e), to which the proviso is an exception. Second, if the body of that provision and § 8(b)(4)(B) were construed to prohibit primary agreements and their maintenance, such as those concerning work preservation, the proviso would have the highly unlikely effect, unjustified in any of the statute's history, of permitting garment workers, but garment workers only, to preserve their jobs against subcontracting or prefabrication by such agreements and by strikes and boycotts to enforce them. Similarly, the construction industry proviso, which permits 'hot cargo' agreements only for jobsite work, would have the curious and unsupported result of allowing the construction worker to make agreements preserving his traditional tasks against jobsite prefabrication and subcontracting, but not against nonjobsite prefabrication and subcontracting. On the other hand, if the heart of § 8(e) is construed to be directed only to secondary activities, the construction proviso becomes, as it was intended to be, a measure designed to allow agreements pertaining to certain secondary activities on the construction site because of the close community of interests there,32 but to ban secondary-objective agreements concerning nonjobsite work, in which respect the construction industry is no different from any other. The provisos are therefore substantial probative support that primary work preservation agreements were not to be within the ban of § 8(e).33
37
The only mention of a broader reach for § 8(e) appears in isolated statements by opponents of that provision, expressing fears that work preservation agreements would be banned.34 These statements have scant probative value against the backdrop of the strong evidence to the contrary. Too, 'we have often cautioned against the danger, when interpreting a statute, of reliance upon the views of its legislative opponents. In their zeal to defeat a bill, they understandably tend to overstate its reach.' National Labor Relations Board v. Fruit & Vegetable Packers, etc., 377 U.S. 58, 66, 84 S.Ct. 1063, 1068, 'It is the sponsors that we look to when the meaning of the statutory words is in doubt.' Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394—395, 71 S.Ct. 745, 750, 96 L.Ed. 1035. See Mastro Plastics Corp. v. National Labor Relations Board, 350 U.S. 270, 288, 76 S.Ct. 349, 360.
38
In addition to all else, '(t)he silence of the sponsors of (the) amendments is pregnant with significance * * *.' National Labor Relations Board v. Fruit & Vegetable Packers, etc., supra, 377 U.S. at 66, 84 S.Ct. at 1068. Before we may say that Congress meant to strike from workers' hands the economic weapons traditionally used against their employers' efforts to abolish their jobs, that meaning should plainly appear. '(I)n this era of automation and onrushing technological change, no problems in the domestic economy are of greater concern than those involving job security and employment stability. Because of the potentially cruel impact upon the lives and fortunes of the working men and women of the Nation, these problems have understandably engaged the solicitous attention of government, of responsible private business, and particularly of organized labor.' Fibreboard Paper Prods. Corp. v. National Labor Relations Board, 379 U.S. 203, 225, 85 S.Ct. 398, 411, 13 L.Ed.2d 233 (concurring opinion of Stewart, J.). We would expect that legislation curtailing the ability of management and labor voluntarily to negotiate for solutions to these significant and difficult problems would be preceded by extensive congressional study and debate, and consideration of voluminous economic, scientific, and statistical data. The silence regarding such matters in the Eighty-sixth Congress is itself evidence that Congress, in enacting § 8(e), had no thought of prohibiting agreements directed to work preservation.35 In fact, since the enactment of § 8(e), both the Subcommittee on Employment any Manpower of the Senate Committee on Labor and Public Welfare, and the Subcommittee on Unemployment and the Impact of Automation and the Select Subcommitted on Labor of the House Committee on Education and Labor have been extensively studying the threats to workers posed by increased technology and automation,36 and some legislation directed to the problem has been passed.37 We cannot lightly impute to Congress an intent in § 8(e) to preclude labor-management agreements to ease these effects through collective bargaining on this most vital problem created by advanced technology.
39
Moreover, our decision in Fibreboard Paper Prods. Corp., supra implicitly recognizes the legitimacy of work preservation clauses like that involved here. Indeed, in the circumstances presented in Fibreboard, we held that bargaining on the subject was made mandatory by § 8(a)(5) of the Act, concerning as it does 'terms and conditions of employment,' § 8(d). Fibreboard involved an alleged refusal to bargain with respect to the contracting-out of plant maintenance work previously performed by employees in the bargaining unit. The Court recognized that the 'termination of employment which * * * necessarily results from the contracting out of work performed by members of the established bargaining unit,' supra, at 210, 85 S.Ct. at 403, is 'a problem of vital concern to labor and management * * *,' supra, at 211, 85 S.Ct. at 403. We further noted, supra, at 211—212, 85 S.Ct. at 403:
40
'Industrial experience is not only reflective of the interests of labor and management in the subject matter but is also indicative of the amenability of such subjects to the collective bargaining process.
41
Experience illustrates that contracting out in one form or another has been brought, widely and successfully, within the collective bargaining framework. Provisions relating to contracting out exist in numerous collective bargaining agreements, and '(c) ontracting out work is the basis of many grievances; and that type of claim is grist in the mills of the arbitrators.' United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 584, 80 S.Ct. 1347, 1354, 4 L.Ed.2d 1409.'
42
See Local 24, of Intern. Broth. of Teamsters, etc., v. Oliver, 358 U.S. 283, 294, 79 S.Ct. 297, 303, 3 L.Ed.2d 312. It would therefore be incongruous to interpret § 8(e) to invalidate clauses over which the parties may be mandated to bargain and which have been successfully incorporated through collective bargaining in many of this Nation's major labor agreements.
43
Finally, important parts of the historic accommodation by Congress of the powers of labor and management are §§ 7 and 13 of the National Labor Relations Act, passed as part of the Wagner Act in 1935 and amended in 1947. The former section assures to labor 'the right * * * to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection * * *.' Section 13 preserves the right to strike, of which the boycott is a form, except as specifically provided in the Act. In the absence of clear indicia of congressional intent to the contrary, these provisions caution against reading statutory prohibitions as embracing employee activities to pressure their own employers into improving the employees' wages, hours, and working conditions. See National Labor Relations Board v. Drivers, etc., Local Union, 362 U.S. 274, 80 S.Ct. 706; National Labor Relations Board v. International Rice Milling Co., supra, 341 U.S. 665, at 672—673, 71 S.Ct. at 964—965; National Labor Relations Board v. Denver Bldg. Trades Council, supra, 341 U.S. 675, at 687, 71 S.Ct. at 950; Mastro Plastics Corp. v. National Labor Relations Board, supra, 350 U.S. at 284, 287, 76 S.Ct. at 358, 360.
44
The Woodwork Manufacturers Association and amici who support its position advance several reasons, grounded in economic and technological factors, why 'will not handle' clauses should be invalid in all circumstances. Those arguments are addressed to the wrong branch of Government. It may be 'that the time has come for a re-evaluation of the basic content of collective bargaining as contemplated by the federal legislation. But that is for Congress. Congress has demonstrated its capacity to adjust the Nation's labor legislation to what, in its legislative judgment, constitutes the statutory pattern appropriate to the developing state of labor relations in the country. Major revisions of the basic statute were enacted in 1947 and 1959. To be sure then, Congress might be of opinion that greater stress should be put on * * * eliminating more and more economic weapons from the * * * (Union's) grasp * * *. But Congress' policy has not yet moved to this point * * *.' National Labor Relations Board v. Insurance Agents' International Union, AFL—CIO, 361 U.S. 477, 500, 80 S.Ct. 419, 433, 4 L.Ed.2d 454.
III.
45
The determination whether the 'will not handle' sentence of Rule 17 and its enforcement violated § 8(e) and § 8(b)(4)(B) cannot be made without an inquiry into whether, under all the surrounding circumstances,38 the Union's objective was preservation of work for Frouge's employees, or whether the agreements and boycott were tactically calculated to satisfy union objectives elsewhere. Were the latter the case, Frouge, the boycotting employer, would be a neutral bystander, and the agreement or boycott would, within the intent of Congress, become secondary. There need not be an actual dispute with the boycotted employer, here the door manufacturer, for the activity to fall within this category, so long as the tactical object of the agreement and its maintenance is that employer, or benefits to other than the boycotting employees or other employees of the primary employer thus making the agreement or boycott secondary in its aim.39 The touchstone is whether the agreement or its maintenance is addressed to the labor relations of the contracting employer vis-a -vis his own employees.40 This will not always be a simple test to apply.41 But '(h)owever difficult the drawing of lines more nice than obvious, the statute compels the task.' Local 761, Inter. Union of Electrical, etc., Workers v. National Labor Relations Board, 366 U.S. 667, 674, 81 S.Ct. 1285, 1290.
46
That the 'will not handle' provision was not an unfair labor practice in these cases is clear. The finding of the Trial Examiner, adopted by the Board, was that the objective of the sentence was preservation of work traditionally performed by the jobsite carpenters. This finding is supported by substantial evidence, and therefore the Union's making of the 'will not handle' agreement was not a violation of § 8(e).
47
Similarly, the Union's maintenance of the provision was not a violation of § 8(b)(4)(B). The Union refused to hang prefabricated doors whether or not they bore a union label, and even refused to install prefabricated doors manufactured off the jobsite by members of the Union. This and other substantial evidence supported the finding that the conduct of the Union on the Frouge jobsite related solely to preservation of the traditional tasks of the jobsite carpenters.
48
The judgment is affirmed in No. 110, and reversed in No. 111. It is so ordered.
49
Judgment in No. 110 affirmed and judgment in No. 111 reversed.
APPENDIX TO OPINION OF THE COURT.
50
The relevant provisions of the National Labor Relations Act, as amended (61 Stat. 141, 73 Stat. 542, 29 U.S.C. § 158), are as follows:
51
8(b) It shall be an unfair labor practice for a labor organization or its agents—
52
(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—
53
(A) forcing or requiring any employer or self-employed person * * * to enter into any agreement which is prohibited by section 8(e)
54
(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 * * *. Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing;
55
(e) It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible and void: Provided, That nothing in this subsection (e) shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work: Provided further, That for the purposes of this subsection (e) and section 8(b)(4)(B) the terms 'any employer,' 'any person engaged in commerce or an industry affecting commerce,' and 'any person' when used in relation to the terms 'any other producer, processor, or manufacturer,' 'any other employer,' or 'any other person' shall not include persons in the relation of a jobber, manufacturer, contractor, or subcontractor working on the goods or premises of the jobber or manufacturer or performing parts of an integrated process of production in the apparel and clothing industry: Provided further, That nothing in this Act shall prohibit the enforcement of any agreement which is within the foregoing exception.
56
Memorandum of Mr. Justice HARLAN.
57
In joining the Court's opinion, I am constrained to add these few words by way of underscoring the salient factors which, in my judgment, make for the decision that has been reached in these difficult cases.
58
1. The facts as found by the Board and the Court of Appeals show that the contractual restrictive-product rule in question, and the boycott in support or its enforcement, had as their sole objective the protection of union members from a diminution of work flowing from changes in technology. Union members traditionally had performed the task of fitting doors on the jobsite, and there is no evidence on any motive for this contract provision and its companion boycott other than the preservation of that work. This, then, is not a case of a union seeking to restrict by contract or boycott an employer with respect to the products he uses, for the purpose of acquiring for its members work that had not previously been theirs.
59
2. The only question thus to be decided, and which is decided, is whether Congress meant, in enacting §§ 8(b)(4)(B) and 8(e) of the National Labor Relations Act, to prevent this kind of labor-management arrangement designed to forestall possible adverse effects upon workers arising from changing technology.
60
3. Because of the possibly profound impacts that the answer to this question may have upon labor-management relations and upon other aspects of the economy, both sides of today's division in the Court agree that we must be especially careful to eschew a resolution of the issue according to our own economic ideas and to find one in what Congress has done. It is further agreed that in pursuing the search for the true intent of Congress we should not stop with the language of the statute itself, but must look beneath its surface to the legislative history.
61
4. It is recognized by court and counsel on both sides that the legislative history of § 8(b)(4)(B), with which s 8(e), it is agreed, is to be taken paripassu, contains only the most tangential references to problems connected with changing technology. Also, a circumspect reading of the legislative record evincing Congress' belief that the statutory provisions in question prohibited agreements and conduct of the kind involved in Allen Bradley Co. v. Local Union No. 3, etc., 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939, will not support a confident assertion that Congress also had in mind the sort of union-management activity before us here. And although it is arguable that Congress, in the temper of the times, would have readily accepted a proposal to outlaw work-preservation agreements and boycotts, even, as here, in their most limited sense, such a surmise can hardly serve as a basis for the construction of an existing statute.
62
5. We are thus left with a legislative history which, on the precise point at issue, is essentially negative, which shows with fair conclusiveness only that Congress was not squarely faced with the problem these cases present. In view of Congress' deep commitment to the resolution of matters of vital importance to management and labor through the collective bargaining process, and its recognition of the boycott as a legitimate weapon in that process, it would be unfortunate were this Court to attribute to Congress, on the basis of such an opaque legislative record, a purpose to outlaw the kind of collective bargaining and conduct involved in these cases. Especially at a time when Congress is continuing to explore methods for meeting the economic problems increasingly arising in this technological are from scientific advances, this Court should not take such a step until Congress has made unmistakable clear that it wishes wholly to exclude collective bargaining as one avenue of approach to solutions in this elusive aspect of our economy.
63
Mr. Justice STEWART, whom Mr. Justice BLACK, Mr. Justice DOUGLAS, and Mr. Justice CLARK join, dissenting.
64
The Union's boycott of the prefitted doors clearly falls within the express terms of the federal labor law, which makes such conduct unlawful when 'an object thereof' is 'forcing or requiring any person to cease using * * * the products of any other * * * manufacturer * * *.'1 And the collective bargaining provision that authorizes such a boycott likewise stands condemned by the law's prohibition of any agreement whereby an employer 'agrees to cease or refrain from handling * * * any of the products of any other employer * * *.'2 The Court undertakes a protracted review of legislative and decisional history in an effort to show that the clear words of the statute should be disregarded in these cases. But the fact is that the relevant history fully confirms that Congress meant what it said, and I therefore dissent.
65
The Court concludes that the Union's conduct in these cases falls outside the ambit of § 8(b)(4) because it had an ultimate purpose that the Court characterizes as 'primary' in nature—the preservation of work for union members. But § 8(b)(4) is not limited to boycotts that have as their only purpose the forcing of any person to cease using the products of another; it is sufficient if that result is 'an object' of the boycott. Legitimate union objectives may not be accomplished through means proscribed by the statute. See National Labor Relations Board v. Denver Bldg. & Const. Trades Council, 341 U.S. 675, 688—689, 71 S.Ct. 943, 951, 95 L.Ed. 1284.3 Without question, preventing Frouge from using prefitted doors was 'an object' of the Union's conduct here.4
66
It is, of course, true that courts have distinguished 'primary' and 'secondary' activities, and have found the former permitted despite the literal applicability of the statutory language. See Local 761, Intern. Union of Electrical, etc., Workers v. National Labor Relations Board, 366 U.S. 667, 81 S.Ct. 1285. But the Court errs in concluding that the product boycott conducted by the Union in these cases was protected primary activity. As the Court points out, a typical form of secondary boycott is the visitation of sanctions on Employer A, with whom the union has no dispute, in order to force him to cease doing business with Employer B, with whom the union does have a dispute. But this is not the only form of secondary boycott that § 8(b)(4) was intended to reach. The Court overlooks the fact that a product boycott for work preservation purposes has consistently been regarded by the courts, and by the Congress that passed the Taft-Hartley Act, as a proscribed 'secondary boycott.'
67
In the interim between the passage of § 20 of the Clayton Act, 38 Stat. 738, and the enactment of the Norris-LaGuardia Act, 47 Stat. 70, this Court established that secondary strikes and boycotts were not exempt from the coverage of the antitrust laws. In Duplex Printing Press Co. v. Deering, 254 U.S. 443, 41 S.Ct. 172, 65 L.Ed. 349 the antitrust laws were found applicable to a secondary boycott of the Employer A—Employer B type described above. A refusal to install stone that had not been cut by union labor was held an illegal secondary boycott in Bedford Cut Stone Co. v. Journeymen Stone Cutters' Assn., 274 U.S. 37, 47 S.Ct. 522, 71 L.Ed. 916. Then in Painters District Council, etc. v. United States, 284 U.S. 582, 52 S.Ct. 38, 76 L.Ed. 504 the Court on the authority of Bedford Cut Stone affirmed a decision holding that a product boycott for work preservation purposes was an illegal secondary boycott. The case involved a refusal to install prefinished kitchen cabinets by workmen who sought to secure the work of finishing for themselves.5
68
In 1932 Congress reversed Duplex and its progeny by passing the Norris-LaGuardia Act. See Milk Wagon Drivers' Union, etc., v. Lake Valley Co., 311 U.S. 91, 100—103, 61 S.Ct. 122, 126—128, 85 L.Ed. 63; United States v. Hutcheson, 312 U.S. 219, 229—231, 235—237, 61 S.Ct. 463, 464—465, 467—468, 85 L.Ed. 788. But in enacting the Taft-Hartley Act in 1947, 61 Stat. 136, Congress clearly provided that, quite apart from the antitrust laws or the Norris-LaGuardia Act, a product boycott of the kind involved in these cases was to be an unfair labor practice.
69
A proper understanding of the purpose of Congress in enacting § 8(b)(4) in that year requires an appreciation of the impact of this Court's 1945 decision in Allen Bradley Co. v. Local Union No. 3, etc., 325 U.S. 797, 65 S.Ct. 1533. Allen Bradley was a private antitrust action brought against the electrical workers union in New York City. Union members were employed by contractors to install electrical equipment in buildings. Other union members were employed by New York City manufacturers of electrical equipment. As part of a conspiracy between the manufacturers, the contractors and the union, union members refused to install any electrical equipment manufactured outside the city. The Union's interest in this scheme is plainly set forth in the Court's opinion; it was to obtain 'work for its own members.' 325 U.S., at 799, 65 S.Ct., at 1535. 'The business of New York City manufacturers had a phenomenal growth, thereby multiplying the jobs available for the Local's members.' 325 U.S., at 800, 65 S.Ct. at 1535. Just as in the cases before us, the union enforced the product boycott to protect the work opportunities of its members.6 The Court found the antitrust laws applicable to the union's role in the scheme, but solely on the ground that the union had conspired with the manufacturers and contractors. Significantly for present purposes, the Court stated that 'had there been no unioncontractor-manufacturer combination the union's actions here * * * would not have been violations of the Sherman Act.' 325 U.S., at 807, 65 S.Ct., at 1539. The Court further indicated that, by itself, a bargaining agreement authorizing the product boycott in question would not transgress the antitrust laws. 325 U.S., at 809, 65 S.Ct., at 1539. In conclusion, the Court recognized that allowing unions to effect product boycotts might offend sound public policy, but indicated that the remedy lay in the hands of the legislature:
70
'Our holding means that the same labor union activities may or may not be in violation of the Sherman Act, dependent upon whether the union acts alone or in combination with business groups. That, it is argued, brings about a wholly undesirable result—one which leaves labor unions free to engage in conduct which restrains trade. But the desirability of such an exemption of labor unions is a question for the determination of Congress.' 325 U.S., at 810, 65 S.Ct., at 1540.
71
Congress responded when it enacted the Taft-Hartley Act. Although there have been differing views within the Court as to the scope of labor unions' exemption from the antitrust laws,7 the Court in Allen Bradley had plainly stated that a work preservation product boycott by a union acting alone fell within that exemption. Two years after the Allen Bradley decision, the 80th Congress prohibited such product boycotts, but did so through the Taft-Hartley Act rather than by changing the antitrust laws. The Senate report on § 8(b)(4) (A)8 of the bill that became law clearly indicates that Congress intended to proscribe not only the Employer A—Employer B model of secondary boycott, but also product boycotts like that involved in Allen Bradley and in the cases before us:
72
'Under paragraph (A) strikes or boycotts, or attempts to induce or encourage such action, are made violations of the act if the purpose is to force an employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of another, or to cease doing business with any other person. Thus, it would not be lawful for a union to engage in a strike against employer A for the purpose of forcing that employer to cease doing business with employer B; nor would it be lawful for a union to boycott employer A because employer A uses or otherwise deals in the goods of or does business with employer B (with whom the union has a dispute). This paragraph also makes it an unfair labor practice for a union to engage in the type of secondary boycott that has been conducted in New York City by local No. 3 of the IBEW, whereby electricians have refused to install electrical products of manufacturers employing electricians who are members of some labor organization other than local No. 3. (See * * * Allen Bradley Co. v. Local Union No. 3, I.B.E.W., 325 U.S. 797 (65 S.Ct. 1533).)'9
73
This clear expression of legislative intent is confirmed by the floor debates.10 It is entirely understandable that Congress should have sought to prohibit product boycotts having a work preservation purpose. Unlike most strikes and boycotts, which are temporary tactical maneuvers in a particular labor dispute, work preservation product boycotts are likely to be permanent, and the restraint on the free flow of goods in commerce is direct and pervasive, not limited to goods manufactured by a particular employer with whom the union may have a given dispute.
74
Although it was deeply concerned with the extensive restraints on trade caused by product boycotts, the 80th Congress specifically declined to amend the antitrust laws to reach the Allen Bradley type of secondary boycott because it correctly understood that such practices were already directly covered by § 8(b)(4) of the 1947 Act. The House Conference Report explained why a provision in the House draft that would have amended 'the Clayton Act so as to withdraw the exemption of labor organizations under the antitrust laws when such organizations engaged in combinations or conspiracies * * * (to) impose restrictions or conditions upon the purchase, sale, or use of any product, material, machine, or equipment * * *' was dropped in the conference that agreed on the Taft-Hartley Act. It stated that 'Since the matters dealt with in this section have to a large measure been effectuated through the use of boycotts, and since the conference agreement contains effective provisions directly dealing with boycotts themselves, this provision is omitted from the conference agreement.'11
75
The Court seeks to avoid the thrust of this legislative history stemming from Allen Bradley by suggesting that in the present cases, the product boycott was used to preserve work opportunities traditionally performed by the Union, whereas in Allen Bradley the boycott was originally designed to create new job opportunities. But it is misleading to state that the union in Allen Bradley used the product boycott as a 'sword.' The record in that case establishes that the boycott was undertaken for the defensive purpose of restoring job opportunities lost in the depression. Moreover, the Court is unable to cite anything in Allen Bradley, or in the Taft-Hartley Act and its legislative history, to support a distinction in the applicability of § 8(b)(4) based on the origin of the job opportunities sought to be preserved by a product boycott. The Court creates its sword and shield distinction out of thin air; nothing could more clearly indicate that the Court is simply substituting its own concepts of desirable labor policy for the scheme enacted by Congress.
76
The courts and the National Labor Relations Board fully recognized that Congress had intended to ban product boycotts along with other forms of the secondary boycott, and that it had not distinguished between 'good' and 'bad' secondary boycotts.12 In a 1949 decision involving § 8(b)(4), the Board stated that 'Congress considered the 'product boycott' one of the precise evils which that provision was designed to curb.'13 The courts agreed. In Joliet Contractors Assn. v. National Labor Relations Board, 202 F.2d 606, cert. denied, 346 U.S. 824, 74 S.Ct. 40, 98 L.Ed. 349, the Court of Appeals for the Seventh Circuit held that a glaziers' union boycott of preglazed sashes to preserve work they had traditionally performed was an unfair labor practice under § 8(b)(4). A similarly motivated boycott of prefabricated doors by construction workers was likewise held illegal by the Court of Appeals for the Sixth Circuit in National Labor Relations Board v. Local 11, United Bro. of Carpenters, 242 F.2d 932. There were no court decisions to the contrary prior to the 1959 amendments to the National Labor Relations Act. Although it made extensive other changes in § 8 at that time, Congress did not disturb the law firmly established by these decisions.14 The conclusion is inescapable that the Union's boycott of the prefitted doors in these cases clearly violated § 8(b)(4)(B).15
77
In 1959 Congress enacted § 8(e) to ensure that § 8(b)(4)'s ban on boycotts would not be circumvented by unions that obtained management's agreement to practices which would give rise to a § 8(b)(4) violation if the union attempted unilaterally to enforce their observance. In the Sand Door decision in 1958,16 the Court had indicated that the execution of a union-employer agreement authorizing a secondary boycott, and the employer's observance of that agreement, did not constitute an unfair labor practice. Section 8(e) was the congressional response. Congress also added a new paragraph (A) to § 8(b)(4), proscribing union pressure on an employer to force him to execute an agreement banned by § 8(e). It is thus evident that §§ 8(b)(4)(A), 8(b)(4)(B) and 8(e) must be construed in harmony as prohibiting various union methods of implementing the type of boycotts that Congress sought to prohibit in the Taft-Hartley Act. As the Court observes, the sweep of § 8(e) is no greater than that of § 8(b)(4). By the same logic, it is no narrower. The relation between the two sections was set forth in Ohio Valley Carpenters, 136 N.L.R.B. 977, 987:
78
'(T)he validity of a restrictive agreement challenged under 8(e) must be considered in terms of whether that agreement, if enforced by prohibited means, would result in an unfair labor practice under Section 8(b)(4)(B). Clearly, there is little point and no logic in declaring an agreement lawful under 8(e), but in finding its enforcement condemned under 8(b)(4)(B). * * *'
79
Since, as has been shown, the product boycott enforced by the union in the cases before us violates § 8(b)(4)(B), it follows that Rule 17, the provision in the collective bargaining agreement applied to authorize this same boycott by agreement, equally violates § 8(e). As the Court points out, an important element in the political impetus behind the enactment of § 8(e) was congressional opposition to 'hot cargo' boycotts imposed by the Teamsters Union. But the language and logic of § 8(e) has a broader scope, and the legislative history clearly establishes that § 8(e) was intended to prohibit all agreements authorizing product boycotts violative of § 8(b)(4).17
80
The content of the construction industry proviso to § 8(e) is also persuasive of that section's principal scope. That proviso exempts only construction industry agreements 'relating to the contracting or subcontracting of work to be done at the site of the construction * * *.' The logical inference from this language is that boycotts of products shipped from outside the worksite are prohibited by § 8(e), and that inference is confirmed by the House Conference Report:
81
'It should be particularly noted that the proviso relates only and exclusively to the contracting or subcontracting of work to be done at the site of the construction. The proviso does not exempt from section 8(e) agreements relating to supplies or other products or materials shipped or otherwise transported to and delivered on the site of the construction.'18
82
The Court indeed recognizes that the § 8(e) construction industry proviso does not immunize product boycotts from the reach of that section. By a curious inversion of logic, the Court purports to deduce from this fact the proposition that product boycotts are not covered by § 8(e). But if § 8(e) and its legislative history are approached without preconceptions, it is evident that Congress intended to bar the use of any provisions in a collective agreement to authorize the product boycott involved in the cases before us.
83
Finally, the Court's reliance on Fibreboard Paper Prods. Corp. v. National Labor Relations Board, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233, is wholly misplaced. That case involved an employer's use of workers hired by an independent contractor to perform in its own plant maintenance work formerly done by its own employees. This reassignment of work was held by the Court to be a mandatory subject of collective bargaining. The circumscribed nature of the decision is established by the Court's careful observation that
84
'The Company's decision to contract out the maintenance work did not alter the Company's basic operation. The maintenance work still had to be performed in the plant * * * the Company merely replaced existing employees with those of an independent contractor to do the same work under similar conditions of employment. Therefore, to require the employer to bargain about the matter would not significantly abridge his freedom to manage the business.' 379 U.S., at 213, 85 S.Ct. at 404.
85
An employer's decision as to the products he wishes to buy presents entirely different issues. That decision has traditionally been regarded as one within management's discretion, and Fibreboard does not indicate that it is a mandatory subject of collective bargaining, much less a permissible basis for a product boycott made illegal by federal labor law.
86
The relevant legislative history confirms and reinforces the plain meaning of the statute and establishes that the Union's product boycott in these cases and the agreement authorizing it were both unfair labor practices. In deciding to the contrary, the Court has substituted its own notions of sound labor policy for the word of Congress. There may be social and economic arguments for changing the law of product boycotts established in § 8, but those changes are not for this Court to make.
87
I respectfully dissent.
1
The text of these sections appears in the Appendix.
2
The full text of Rule 17 is as follows:
'No employee shall work on any job on which cabinet work, fixtures, millwork, sash, doors, trim or other detailed millwork is used unless the same is Unionmade and bears the Union Label of the United Brotherhood of Carpenters and Joiners of America. No member of this District Council will handle material coming from a mill where cutting out and fitting has been done for butts, locks, letter plates, or hardware of any description, nor any doors or transoms which have been fitted prior to being furnished on job, including base, chair, rail, picture moulding, which has been previously fitted. This section to exempt partition work furnished in sections.' The National Labor Relations Board determined that the first sentence violated § 8(e), 149 N.L.R.B. 646, 655—656, and the Union did not seek judicial review of that determination.
3
There were also charges of violation of §§ 8(e) and 8(b)(4)(B) arising from the enforcement of the Rule 17 provision against three other contractors whose contracts with the owners of the construction projects involved specified that the contractors should furnish and install precut and prefinished doors. The Union refused to permit its members to hang these doors. The Board held that this refusal violated § 8(b)(4)(B). The Board reasoned that, since these contractors (in contrast to Frouge) did not have 'control' over the work that the Union sought to preserve for its members, the Union's objective was secondary—to compel the project owners to stop specifying precut doors in their contracts with the employer-contractors. 149 N.L.R.B., at 658. The Union petitioned the Court of Appeals to set aside the remedial order issued by the Board on this finding, but the court sustained the Board. 354 F.2d 594, 597. The Union did not seek review of the question here. Not before us, therefore, is the issue argued by the AFL—CIO in its brief amicus curiae, namely, whether the Board's 'right-to-control doctrine—that employees can never strike against their own employer about a matter over which he lacks the legal power to grant their demand'—is an incorrect rule of law inconsistent with the Court's decision in National Labor Relations Board v. Insurance Agents' International Union, AFL—CIO, 361 U.S. 477, 497 498, 80 S.Ct. 419, 431—432.
4
The statutory language of § 8(e) is far from unambiguous. It prohibits agreements to 'cease * * * from handling * * * any of the products of any other employer * * *.' (Emphasis supplied.) Since both the product and its source are mentioned, the provision might be read not to prohibit an agreement relating solely to the nature of the product itself, such as a work-preservation agreement, but only to prohibit one arising from an objection to the other employers or a definable group of employers who are the source of the product, for example, their nonunion status.
5
Letter of Judge Learned Hand, quote in Lesnick, The Gravamen of the Secondary Boycott, 62 Col.L.Rev. 1363, 1393—1394, n. 155 (1962). See 2 Sutherland, Statutory Construction 321 (Horack ed. 1943): 'Before the true meaning of the statute can be determined consideration must be given to the problem in society to which the legislature addressed itself, prior legislative consideraiton of the problem, the legislative history of the statute under litigation, and to the operation and administration of the statute prior to litigation.'
6
See Loewe v. Lawlor, 208 U.S. 274, 28 S.Ct. 301, 52 L.Ed. 488 and 235 U.S. 522, 35 S.Ct. 170, 59 L.Ed. 341 (Danbury Hatters' Case). The history of this development under the Sherman Act is traced in Duplex Printing Press Co. v. Deering, 254 U.S. 443, 41 S.Ct. 172; Allen Bradley Co. v. Local Union No. 3, etc., Electrical Workers, 325 U.S. 797, 800—803, 65 S.Ct. 1533, 1535 1537. See generally Berman, Labor and the Sherman Act (1930). Collective activity was also being restrained through the doctrine of 'malicious combination.' See Duplex Printing Press Co. v. Deering, supra, 254 U.S. at 484—485, 41 S.Ct. at 182—183 (Brandeis, J., dissenting); see generally Laidler, Boycotts and the Labor Struggle 189—194 (1914).
7
Painters District Council, etc. v. United States, 284 U.S. 582, 52 S.Ct. 38, 76 L.Ed. 504, which summarily affirmed 44 F.2d 58, also involved secondary activity within the rubric of Duplex; the union, whose members' primary employers were painting contractors, sought to 'compel manufacturers to bring their products into the state unfinished * * *.' 44 F.2d, at 59. (Emphasis supplied.)
8
See Laidler, op. cit. supra, n. 6, at 64; Clark, The Law of the Employment of Labor 289—290 (1911); Oakes, Organized Labor and Industrial Conflicts § 408 (1927); Frankfurter & Greene, The Labor Injunction 43 (1930).
9
Section 13(c) of the Norris-LaGuardia Act provided that the term labor dispute and thus the scope of immunity 'includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee.' 47 Stat. 73. (Emphasis supplied.)
10
See 1 Teller, Labor Disputes and Collective Bargaining § 145 (1940); Barnard & Graham, Labor and the Secondary Boycott, 15 Wash.L.Rev. 137 (1940); Smith, Coercion of Third Parties in Labor Disputes—The Secondary Boycott, 1 La.L.Rev. 277 (1939); Hellerstein, Secondary Boycotts in Labor Disputes, 47 Yale L.J. 341, 364 (1938).
11
93 Cong.Rec. 4198, II Legislative History of the Labor Management Relations Act, 1947 (hereafter 1947 Leg.Hist.), 1106.
12
See, e.g., S.Rep. No. 105, 80th Cong., 1st Sess., 7, 8, 22, 54, in I 1947 Leg.Hist. 413, 414, 428, 460; H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., 43, in I 1947 Leg.Hist. 547 U.S.Code Congressional Service, p. 1135; 93 Cong.Rec. 4131, 4138, 4837 4838, 4843, 4844, 4858, 4859, 4865, 5005, 5011, 5014, 6445—6446, 7537, in II 1947 Leg.Hist. 1055, 1068, 1354—1355, 1364, 1365, 1370 1371, 1372—1373, 1383, 1479, 1491, 1497, 1544, 1654. A statement of Senator Javits, an opponent of the bill, at 93 Cong.Rec. 6296, I 1947 Leg.Hist. 876, that might suggest a broader reading was merely one of the 'isolated references * * * (that) appear more as asides in a debate. * * *' National Labor Relations Board v. Drivers, etc., Local Union, 362 U.S. 274, 286—287, 80 S.Ct. 706, 713.
13
See, e.g., 93 Cong.Rec. 3424 (Rep. Hartley), 3432 (Rep. Landis), 3449 (Rep. Buck), A1910—A1911 (Rep. Meade), 1844 (Senator Morse), 3838 (Senator Taft), 5014 (Senator Ball), in I 1947 Leg.Hist. 614, 630, 658, 869, and II 1947 Leg.Hist. 982, 1012, 1497.
14
See also a similar statement in H.R.Conf.Rep. No. 510, supra, at 43, I 1947 Leg.Hist. 547, in which the House Managers limit the 'boycotts,' referred to at 65, I 1947 Leg.Hist. 569.
15
Cf. Mastro Plastics Corp. v. National Labor Relations Board, 350 U.S. 270, 285, 76 S.Ct. 349, 359; National Labor Relations Board v. Lion Oil Co., 352 U.S. 282, 288, 77 S.Ct. 330, 333.
16
See, e.g., DiGiorgio Fruit Corp. v. National Labor Relations Board, 89 U.S.App.D.C. 155, 191 F.2d 642, 28 A.L.R.2d 377, cert. denied, 342 U.S. 869, 72 S.Ct. 110, 96 L.Ed. 653 (1951); J. G. Roy & Sons Co. v. National Labor Relations Board, 251 F.2d 771 (C.A.1st Cir. 1958); Rabouin v. National Labor Relations Board, 195 F.2d 906, 912 (C.A.2d Cir. 1952); Piezonki v. National Labor Relations Board, 219 F.2d 879 (C.A.4th Cir. 1955); National Labor Relations Board v. General Drivers, etc., Local 968, 225 F.2d 205 (C.A.5th Cir. 1955), cert. denied, 350 U.S. 914, 76 S.Ct. 198, 100 L.Ed. 801; Local 618, Automotive Petroleum, etc., Employees Union, AFL—CIO v. National Labor Relations Board, 249 F.2d 332 (C.A.8th Cir. 1957); National Labor Relations Board v. Local Union No. 55, 218 F.2d 226 (C.A.10th Cir. 1954). An oft-cited definition of the conduct banned by § 8(b)(4)(A) was that of Judge Learned Hand in International Bro. of Electrical Workers, No. 501 v. National Labor Relations Board, 2 Cir., 181 F.2d 34, 37: 'The gravamen of a secondary boycott is that its sanctions bear, not upon the employer who alone is a party to the dispute, but upon some third party who has no concern in it. Its aim is to compel him to stop business with the employer in the hope that this will induce the employer to give in to his employees' demands.' For the scholarly acceptance of this primary-secondary dichotomy in the scope of § 8(b)(4)(A), see Koretz, Federal Regulations of Secondary Strikes and Boycotts—A New Chapter, 37 Cornell L.Q. 235 (1952); Tower, A Perspective on Secondary Boycotts, 2 Lab.L.J. 727 (1951); Cushman, Secondary Boycotts and the Taft-Hartley Law, 6 Syracuse L.Rev. 109 (1954); Lesnick, The Gravamen of the Secondary Boycott, 62 Col.L.Rev. 1363 (1962); Cox, The Landrum-Griffin Amendments to the National Labor Relations Act, 44 Minn.L.Rev. 257, 271 (1959); Aaron, The Labor-Management Reporting and Disclosure Act of 1959, 73 Harv.L.Rev. 1086, 1112 (1960). For the NLRB's vacillations during the period, see Lesnick, supra, 62 Col.L.Rev., at 1366—1392.
17
Lesnick, Job Security and Secondary Boycotts: The Reach of N.L.R.A. §§ 8(b)(4) and 8(e), 113 U.Pa.L.Rev. 1000, 1017—1018 (1965).
It is suggested that the boycott in Allen Bradley is indistinguishable from the activity today held protected in Houston Insulation Contractors Association v. National Labor Relations Board, 386 U.S. 664, 87 S.Ct. 1278, 18 L.Ed.2d 389. The crucial distinction is that in Houston Insulation Contractors Association the boycott was being carried out to affect the labor policies of the employer of the boycotting employees, the primary employer, and not, as in Allen Bradley, for its effect elsewhere.
18
See 93 Cong.Rec. 4132 (Senator Ellender), II 1947 Leg.Hist. 1056: 'A secondary boycott, as all of us know, is a concerted attempt on the part of a strong union to compel employers to deal with them, even though the employees of that employer desire to be represented by other unions, or not to be represented at all. * * * (An) example is the New York Electrical Workers Union, the IBEW.' See also Statement of Senator Ball, 93 Cong.Rec. 5011, II 1947 Leg.Hist. 1491, who described 'one of the worst situations which has arisen, such as that in New York where a local of the IBEW is using the secondary boycott to maintain a tight little monopoly for its own employees, its own members, and a few employers in that area.'
19
We likewise do not have before us in these cases, and express no view upon, the antitrust limitations, if any, upon union-employer work-preservation or work-extension agreements. See United Mine Workers of America v. Pennington, 381 U.S. 657, 662 665, 85 S.Ct. 1585, 1589—1591, 14 L.Ed.2d 626.
20
The proviso was added in the Conference Committed, the report of which stated its purpose to be, 'to make it clear that the changes in section 8(b)(4) do not overrule or qualify the present rules of law permitting picketing at the site of a primary labor dispute.' H.R.Conf.Rep. No. 1147, 86th Cong., 1st Sess., 38 (1959), U.S.Code Congressional and Administrative News, p. 2510, in I Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 (hereafter 1959 Leg.Hist.), 942. See Local 761, Intern. Union of Electrical, etc., Workers v. National Labor Relations Board, 366 U.S. 667, 681, 81 S.Ct. 1285, 1293.
21
See 105 Cong.Rec. 1729—1730, II 1959 Leg.Hist. 993—994 (remarks of the Secretary of Labor, inserted into the record by Senator Dirksen); 105 Cong.Rec. 3951—3952, 6290, 6667, II 1959 Leg.Hist. 1007, 1052, 1193—1194 (Senator McClellan); 105 Cong.Rec. 6285, II 1959 Leg.Hist. 1046 (Senator Ervin); 105 Cong.Rec. 6300 6301, II 1959 Leg.Hist. 1059 (Senator Mundt); 105 Cong.Rec. 6390, 6428, 17674, II 1959 Leg.Hist. 1061, 1079, 1386 (Senator Goldwater); 105 Cong.Rec. 6670, 17907—17908, II 1959 Leg.Hist. 1197, 1440—1441 (Senator Curtis); 105 Cong.Rec. 1426, 15674, II 1959 Leg.Hist. 1462, 1616 (Rep. Bosch); 105 Cong.Rec. 3926—3927, 3928, II 1959 Leg.Hist. 1469—1470, 1471 (Rep. Lafore); 105 Cong.Rec. 14343—14344, II 1959 Leg.Hist. 1518—1519 (Rep. Landrum); 105 Cong.Rec. 14347—14348, II 1959 Leg.Hist. 1522—1523 (analysis of Landrum-Griffin bill inserted into the record by Rep. Griffin); 105 Cong.Rec. 15532, II 1959 Leg.Hist. 1568 (Rep. Griffin); 105 Cong.Rec. 15195, 15544—15545, II 1959 Leg.Hist. 1543, 1580—1581 (Rep. Rhodes); 105 Cong.Rec. 15529, II 1959 Leg.Hist. 1565 (Rep. Shelley); 105 Cong.Rec. 15551—15552, II 1959 Leg.Hist. 1587—1588 (report prepared by Rep. Elliott); 105 Cong.Rec. 15688, II 1959 Leg.Hist. 1630 (Rep. Riehlman); 105 Cong.Rec. 15691, II 1959 Leg.Hist. 1633 (Rep. Arends).
22
Throughout the committee reports and debates on § 8(e), it was referred to as a measure designed to close a loophole in § 8(b)(4)(A) of the 1947 Act. See, e.g., S.Rep. No. 187, 86th Cong., 1st Sess., 78—79, I 1959 Leg.Hist. 474—475 (1959) (Minority Views); H.R.Rep. No. 741, 86th Cogn., 1st Sess., 20—21, I 1959 Leg.Hist. 778—779, U.S.Congressional and Administrative News, p. 2318.
23
See Cox, supra, n. 16, at 272.
24
See Final Report of the Senate Select Committee on Improper Activities in the Labor or Management Field, S.Rep. No. 1139, 86th Cong., 2d Sess., 3 (1960). The Final Report, ordered to be printed after enactment of the Landrum-Griffin Act, defined a 'hot cargo' clause as 'an agreement between a union and a unionized employer that his employees shall not be required to work on or handle 'hot goods' or 'hot cargo' being manufactured or transferred by another employer with whom the union has a labor dispute or whom the union considers and labels as being unfair to organized labor.' Ibid.
25
S.Rep. No. 187, 86th Cong., 1st Sess., 78, I 1959 Leg.Hist. 474. The Senators explained, at 79, I 1959 Leg.Hist. 475, U.S.Code Congressional and Administrative News, p. 2383:
'Hot-Cargo clauses.—It has become common to find clauses in union contracts whereby the employer agrees not to handle what the union chooses to call 'hot goods,' 'unfair materials,' and 'black-listed products.' Such clauses have become standard in contracts entered into by the Teamsters Union. Here, employer A, who has a dispute with a union or whose employees are being solicited for union membership, is in real trouble. He may have customers waiting for his product or he may have suppliers eager to send him raw material, but both his delivery of products and supply of raw material cannot move from or to his place of business because the carriers in either instance have 'hot cargo' clauses in their contracts with the Teamsters Union. His alternative is * * * (to) go out of business or yield to the union's demand, which often is a demand for a compulsory membership contract with a union which his employees do not want.'
26
See statements of these Senators, cited n. 21 supra. Both Senators Dirksen and McClellan introduced unsuccessful 'hot cargo' legislation in substantially the same terms as enacted in § 8(e), 105 Cong.Rec. 3948, 6411—6412, II 1959 Leg.Hist. 1007 (Senator McClellan), 1071 (Senator Dirksen).
27
See, e.g., remarks of Secretary of Labor Mitchell inserted into the record by Senator Dirksen, 105 Cong.Rec. 1730, II 1959 Leg.Hist. 993: 'The testimony before the select committee again and again illustrated the method by which certain unions, particularly the Teamsters, utilized the inadequacies of the present secondary boycott provisions to force employers to do business with only those people approved by union officials.'
28
H.R. 8342, § 705(a)(2) (Elliott bill), in I 1959 Leg.Hist. 755—757.
29
H.R.Rep. No. 741, 86th Cong., 1st Sess., 21, I 1959 Leg.Hist. 779, U.S.Congressional and Administrative News, p. 2444.
30
105 Cong.Rec. 14347, II 1959 Leg.Hist. 1522—1523. Rep. Griffin noted that the present law did not 'prohibit resort to * * * (secondary) activity to force (secondary) employers to sign contracts or agreements not to handle or transport goods coming from a source characterized by a union as 'unfair."
31
See, e.g., 105 Cong.Rec. 6668, 17327, II 1959 Leg.Hist. 1195, 1377 (Senator Kennedy).
32
See Essex County and Vicinity Dist. Council of Carpenters, etc., v. National Labor Relations Board, 332 F.2d 636 (C.A.3d Cir. 1964); Comment, The Impact of the Taft-Hartley Act on the Building and Construction Industry, 60 Yale L.J. 673, 684—689 (1951).
33
See Mastro Plastics Corp. v. National Labor Relations Board, 350 U.S. 270, 285—286, 76 S.Ct. 349, 359 and cases there cited.
34
105 Cong.Rec. 17884, II 1959 Leg.Hist. 1428 (Senator Morse); 105 Cong.Rec. 16590, II 1959 Leg.Hist. 1708 (analysis of 'Secondary Boycotts and Hot Cargo Contracts' by Senator Kennedy and Rep. Thompson). It is somewhat unclear whether statements by Senator McNamara and Reps. Thompson and Kearns respecting plumbing prefabrication clauses for construction projects concerned agreements with a primary or a secondary objective. 105 Cong.Rec. 19785, 19809, 20004—20005, II 1959 Leg.Hist. 1815, 1816, 1861. As described by Senator McNamara, the clause in question permitted fabrication, so long as it was accomplished by members of a local union of the pipefitters. 105 Cong.Rec. 19785, II 1959 Leg.Hist. 1815. Moreover, the statements purported only to indicate their interpretation of the construction industry proviso. In any event, these statements could represent only the personal views of these legislators, since the statements were inserted in the Congressional Record after passage of the Act.
35
In fact, Rep. Alger introduced a bill which would have banned union attempts to limit prefabrication of building materials, which bill was given no attention whatever and failed of adoption. 105 Cong.Rec. 12137, II 1959 Leg.Hist. 1508. The understanding of Congress with regard to that issue might have been best reflected in a statement on the House floor by Rep. Holland: 'When the labor reform bill is out of the way—labor and management could, as they eventually must, sit down together and work toward a solution of our most serious problem—automation which has already affected the employment picture through more productivity and less employment. If allowed to go unchecked, automation will eventually create many thousands of displaced persons, and unless this problem is properly worked out, it portends a serious threat to our national economy.' 105 Cong.Rec. 13133, II 1959 Leg.Hist. 1511.
36
See Hearings before the Subcommittee on Employment and Manpower of the Senate Committee on Labor and Public Welfare, 88th Cong., 1st Sess., pts. 1—9 (1963), 88th Cong., 2d Sess., pt. 10 (1964), on the Nation's Manpower Revolution (concluding with recommendations for a National Commission on Automation and Technological Progress), and Hearings, 88th Cong., 1st Sess. (1963), on Manpower Retraining; Hearings before the Select Subcommittee on Labor of the House Committee on Education and Labor, 88th Cong., 2d Sess. (1964), on H.R. 10310 and Related Bills 'To Establish a National Commission on Automation and Technological Progress'; Hearings before the Subcommittee on Unemployment and the Impact of Automation of the House Committee on Education and Labor, 87th Cong., 1st Sess. (1961), on H.R. 7373, a 'Bill Relating to the Occupational Training, Development, and Use of the Manpower Resources of the Nation.' See statement in these latter hearings of then Secretary of Labor, Arthur Goldberg, at 3: 'Many achievements in attempting to overcome the difficulties created by radical technical change can and should be accomplished through collective bargaining and joint labor-management efforts. Much has been achieved through such efforts in recent years. Even greater concentration by labor and management on these problems is needed in the period ahead.'
37
See the Manpower Development and Training Act of 1962, § 102(1), 76 Stat. 24, which directs the Secretary of Labor to 'evaluate the impact of, and benefits and problems created by automation, technological progress, and other changes in the structure of production and demand on the use of the Nation's human resources; establish techniques and methods for detecting in advance the potential impact of such developments; develop solutions to these problems, and publish findings pertaining thereto'. The Secretary has, pursuant to this direction, published numerous bulletins. See, e.g., Technological Trends in Major American Industries, Dept. of Labor Bulletin No. 1474.
38
As a general proposition, such circumstances might include the remoteness of the threat of displacement by the banned product or services, the history of labor relations between the union and the employers who would be boycotted, and the economic personality of the industry. See Comment, 62 Mich.L.Rev. 1176, 1185 et seq. (1964).
39
See Lesnick, Job Security and Secondary Boycotts: The Reach of NLRA §§ 8(b)(4) and 8(e), 113 U.Pa.L.Rev. 1000, 1018, 1040 (1965).
40
See Orange Belt District Council of Painters, No. 48, AFL CIO v. National Labor Relations Board, 117 U.S.App.D.C. 233, 328 F.2d 534 (1964); Retail Clerks Union Local 770, etc., v. National Labor Relations Board, 111 U.S.App.D.C. 246, 296 F.2d 368 (1961); Todd Shipyards Corp. v. Industrial Union of Marine and Shipbldg. Workers, etc., 344 F.2d 107 (C.A.2d Cir. 1965); National Labor Relations Board v. Local 825, Int'l Union of Operating Engineers, etc., 326 F.2d 218 (C.A.3d Cir. 1964); National Labor Relations Board v. Joint Council of Teamsters, 338 F.2d 23, 28 (C.A.9th Cir. 1964); Milk Drivers & Dairy Employees Union (Minnesota Milk Co.), 133 N.L.R.B. 1314, enforced, Minnesota Milk Co. v. National Labor Relations Board, 314 F.2d 761 (C.A.8th Cir. 1963); Ohio Valley Carpenters District Council (Cardinal Industries), 136 N.L.R.B. 977 (1962).
41
See, e.g., Retail Clerks Union Local 770, etc. v. National Labor Relations Board, 111 U.S.App.D.C. 246, 296 F.2d 368 (1961); Baltimore Lithographers (Alco-Gravure), 160 N.L.R.B. No. 90, 63 L.R.R.M. 1126 (1966); Joliet Contractors Assn. v. National Labor Relations Board, 202 F.2d 606 (C.A.7th Cir. 1953), cert. denied, 346 U.S. 824, 74 S.Ct 40, 98 L.Ed. 349; National Labor Relations Board v. Local 11, United Bro. of Carpenters, etc., 242 F.2d 932 (C.A.6th Cir. 1957). See generally Lesnick, supra, n. 39; Comment, 62 Mich.L.Rev. 1176 (1964).
1
National Labor Relations Act, as amended, § 8(b)(4)(B), 73 Stat. 543, 29 U.S.C. § 158(b)(4)(B).
2
National Labor Relations Act, as amended, § 8(e), 73 Stat. 543, 29 U.S.C. § 158(e).
3
As originally drafted, § 8(b)(4) proscribed only those strikes and boycotts that had 'the purpose of' forcing employers to cease using products manufactured by another, etc. The significance of the adoption in conference of the language found in the Act was explained by Senator Taft: 'Section 8(b) (4), relating to illegal strikes and boycotts, was amended in conference by striking out the words 'for the purpose of' and inserting the clause 'where an object thereof is.' Obviously the intent of the conferees was to close any loophole which would prevent the Board from being blocked in giving relief against such illegal activities simply because one of the purposes of such strikes might have been lawful.' 93 Cong.Rec. 6859, II Legislative History of the Labor Management Relations Act, 1947 (hereinafter 1947 Leg.Hist.), 1623.
4
In Local 598 Plumbers & Steamfitters, 131 N.L.R.B. 787, the employees of a contractor, Scott Co., boycotted tunnel sections with prefabricated supports manufactured by Eaton. In rejecting a work-preservation 'primary purpose' argument like that advanced in this case, the Board stated: 'To say that the object of the (union) was to induce or compel Scott Company to assign the work of installing the disputed supports to the (union's) members * * * and not to force Scott Company to cease using Eaton's product or to cease doing business with Eaton is * * * to pretend that the latter object is not a necessary consequence of the former object. The two objects are inseparable. It is immaterial that one objective might be legal if the other is illegal.' 131 N.L.R.B., at 800.
5
See United States v. Painters' District Council, 44 F.2d 58.
6
The present cases, in which the boycotting employees were protecting their own work opportunities, cannot be distinguished from Allen Bradley on the ground that there the boycotting employees were protecting the work opportunities of other members of their union. For today in Houston Insulaton Contractors Assn. v. National Labor Relations Board, 386 U.S. 664, 87 S.Ct. 1278, 18 L.Ed.2d 389, the Court applies its holding in the present cases to validate a boycott by employees to protect the work opportunities of other workers who were not even members of their union.
7
See United Mine Workers of America v. Pennington, 381 U.S. 657, 672, 85 S.Ct. 1585, 1594, 14 L.Ed.2d 626; Local Union No. 189, Amalgamated Meat Cutters, etc. v. Jewel Tea Co., 381 U.S. 676, 697, 735, 85 S.Ct. 1596, 1629, 14 L.Ed.2d 640.
8
In the 1959 amendments to the National Labor Relations Act, § 8(b)(4)(A) of the original Act was, with changes not here relevant, retitled § 8(b)(4) (B). See n. 14, infra.
9
S.Rep.No.105, 80th Cong., 1st Sess., 22, I 1947 Leg.Hist. 428.
10
A strong supporter of the Act, Senator Ellender, cited the New York City electrical workers' work preservation product boycott as an example of 'the secondary boycott' that the Act would prohibit,
adding that 'one can readily understand that such procedure is unconscionable and that it results in high costs to those engaged in the erection of office buildings, homes, and stores. * * *' 93 Cong.Rec. 4132, II 1947 Leg.Hist. 1056. In contrasting the coverage of the Act with shortcomings in the measures suggested by the President, Senator Ball noted that the Administration's proposals 'would not touch at all one of the worst situations which has arisen, such as that in New York where a local of the IBEW is using the secondary boycott to maintain a tight little monopoly for its own employees, its own members, and a few employers. * * *' 93 Cong.Rec. 5011, II 1947 Leg.Hist. 1491. Replying to criticisms by Senator Pepper, Senator Taft stated that Senator Pepper's position would entail approval of the New York City electrical workers' product boycott: 'The principle announced by the Senator from Florida would make that stand lawful, as it is lawful today. Of course we propose to change the law in that respect.' 93 Cong.Rec. 4199, II 1947 Leg.Hist. 1107. Opponents of the bill likewise recognized that the Act would prohibit work preservation boycotts, and at least one of them, Representative Javits, accepted this feature of § 8(b)(4) but criticized the Act for also prohibiting secondary boycotts that he believed had legitimate purposes. He stated that such legitimate boycotts were 'not the kind of boycott which is contrary to the public interest, that other kind results from a misguided labor union's efforts to keep certain goods out of a market because the labor union fears the effect of new inventions or new methods. But while dealing with this * * * abuse, the bill also has the effect of depriving labor of a right of self-preservation which has never been questioned before.' 93 Cong.Rec. 6296, I 1947 Leg.Hist. 876.
11
H.R.Conf.Rep.No.510, 80th Cong., 1st Sess., 65, I 1947 Leg.Hist. 569.
12
In the floor debates, Senator Taft stated that 'It has been set forth that there are good secondary boycotts and bad secondary boycotts. Our committee heard evidence for weeks and never succeeded in having anyone tell us any difference between different kinds of secondary boycotts. So we have so broadened the provision dealing with secondary boycotts as to make them an unfair labor practice.' 93 Cong.Rec. 4198, II 1947 Leg.Hist. 1106.
This reading of § 8(b)(4) is confirmed by the Senate Minority Report, which complained that it 'ignores valid distinctions between justified and unjustified boycotts based on the objective of the union in carrying on such a boycott. * * * It indiscriminately bans all such boycotts, whether justified or not.' S.Rep.No.105, Pt. 2, 80th Cong., 1st Sess., 20, I 1947 Leg.Hist. 482.
13
United Brotherhood of Carpenters, 81 N.L.R.B. 802, 806, enforced, National Labor Relations Bd. v. United Bhd. of Carpenters, 10 Cir., 184 F.2d 60.
14
In addition to recasting the original § 8(b)(4)(A) as § 8(b)(4)(B), the 1959 amendments produced §§ 8(b)(4)(i) and (ii) expanding the modes of union pressure covered by § 8(b)(4). See National Labor Relations Board v. Servette, Inc., 377 U.S. 46, 51 54, 84 S.Ct. 1098, 1102—1103, 12 L.Ed.2d 121. Among the changes was the deletion of the Act's original requirement that union pressure on individuals for the objectives proscribed must be pressure commanding 'concerted' activity on the part of those individuals. This was the legislative response to National Labor Relations Board v. International Rice Milling Co., 341 U.S. 665, 71 S.Ct. 961, 95 L.Ed. 1284, where the Court had indicated that jobsite picketing directed at truck drivers employed by a customer of the struck employer was not an unfair labor practice because there was no attempt to persuade the truck drivers to engage in 'concerted' activity. In addition to dropping the 'concerted' activity requirement and thus bringing secondary conduct directed at an individual employee within § 8(b)(4), Congress also added the proviso that nothing in the amended section 'shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.' The purpose of this proviso was simply to make clear that Congress did not intent to disturb another ground of the Court's decision in Rice Milling—that jobsite picketing of the employees of others was protected primary activity. See Local 761, Intern. Union of Electrical, etc., Workers v. National Labor Relations Board, 366 U.S. 667, 681, 81 S.Ct. 1285, 1293.
Thus, the proviso was not intended to modify the distinction between proscribed secondary boycotts and permitted primary strikes and picketing embodied in the original Act. The conference report on the 1959 amendments specifically states that 'the changes in section 8(b)(4) do not overrule or qualify the present rules of law permitting picketing at the site of a primary labor dispute.' H.R.Conf.Rep.No.1147, 86th Cong., 1st Sess., 38, I Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 (hereinafter 1959 Leg.Hist.), 942; U.S.Code Congressional and Administrative News 1959, p. 2510. Congress thus intended no change in the Taft-Hartley Act's proscription of product boycotts, which court decisions had consistently recognized as 'secondary' and illegal.
15
What has been said establishes that product boycotts are normally illegal regardless of the employer's contractual relations with the supplier of the boycotted goods, or with other persons. Thus it appears that the concept of 'control' which the Board applied in these cases lacks relevance to the correct determination of whether a § 8(b)(4)(B) violation has occurred. Cf. n. 3 to the Court's opinion, ante, at 616.
16
Local 1976, United Brotherhood of Carpenters, etc. v. National Labor Relations Board, 357 U.S. 93, 78 S.Ct. 1011, 2 L.Ed.2d 1186.
17
The Court and the Board point to H.R.Rep. No. 741, 86th Cong., 1st Sess., 21, I 1959 Leg.Hist. 779, which noted the similarity in language between § 8(b) (4) and a provision in a Senate bill somewhat similar to what became § 8(e) and characterized the latter as preserving 'the established distinction between primary activities and secondary boycotts.' But the 'established distinction' embodied in the Taft-Hartley Act and recognized by the courts classified product boycotts as secondary and illegal.
The floor debates show that both proponents and opponents of the Landrum-Griffin bill acknowledged that it would prohibit product boycotts, including those with work preservation purposes. For example, see 105 Cong.Rec. 17884, II 1959 Leg.Hist. 1428 (remarks of Senator Morse); 105 Cong.Rec. 15545, II 1959 Leg.Hist. 1581 (remarks of Representative Rhodes).
18
H.R.Conf.Rep.No. 1147, 86th Cong., 1st Sess., 39, I 1959 Leg.Hist. 943, U.S.Code Congressional and Administrative News, p. 2511.
| 67
|
386 U.S. 685
87 S.Ct. 1326
18 L.Ed.2d 406
UTAH PIE COMPANY, Petitioner,v.CONTINENTAL BAKING CO. et al.
No. 18.
Argued Jan. 17, 1967.
Decided April 24, 1967.
Rehearing Denied June 5, 1967.
See 387 U.S. 949, 87 S.Ct. 2071.
Joseph L. Alioto, San Francisco, Cal., for petitioner.
John H. Schafer, Washington, D.C., Peter W. Billings, Salt Lake City, Utah, and George P. Lamb, Washington, D.C., for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
This suit for treble damages and injunction under §§ 4 and 16 of the Clayton Act, 38 Stat. 731, 737, 15 U.S.C. §§ 15 and 261 was brought by petitioner, Utah Pie Company, against respondents, Continental Baking Company, Carnation Company and Pet Milk Company. The complaint charged a conspiracy under §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. §§ 1 and 2, and violations by each respondent of § 2(a) of the Clayton Act as amended by the Robinson-Patman Act, 49 Stat. 1526, 15 U.S.C. § 13(a).2 The jury found for respondents on the conspiracy charge and for petitioner on the price discrimination charge.3 Judgment was entered for petitioner for damages and attorneys' fees and respondents appealed on several grounds. The Court of Appeals reversed, addressing itself to the single issue of whether the evidence against each of the respondents was sufficient to support a finding of probable injury to competition within the meaning of § 2(a) and holding that it was not. 349 F.2d 122. We granted certiorari. 382 U.S. 914, 86 S.Ct. 288, 15 L.Ed.2d 230.4 We reverse.
2
The product involved is frozen dessert pies—apple, cherry, boysenberry, peach, pumpkin, and mince. The period covered by the suit comprised the years 1958, 1959, and 1960 and the first eight months of 1961. Petitioner is a Utah corporation which for 30 years had been baking pies in its plant in Salt Lake City and selling them in Utah and surrounding States. It entered the frozen pie business in late 1957. It was immediately successful with its new line and built a new plant in Salt Lake City in 1958. The frozen pie market was a rapidly expanding one: 57,060 dozen frozen pies were sold in the Salt Lake City market in 1958, 111,729 dozen in 1959, 184,569 dozen in 1960, and 266,908 dozen in 1961. Utah Pie's share of this market in those years was 66.5% 34.3% 45.5%, and 45.3% respectively, its sales volume steadily increasing over the four years. Its financial position also improved. Petitioner is not, however, a large company. At the time of the trial, petitioner operated with only 18 employees, nine of whom were members of the Rigby family, which controlled the business. Its net worth increased from $31,651.98 on October 31, 1957, to $68,802.13 on October 31, 1961. Total sales were $238,000 in the year ended October 31, 1957, $353,000 in 1958, $430,000 in 1959, $504,000 in 1960 and $589,000 in 1961. Its net income or loss for these same years was a loss of $6,461 in 1957, and net income in the remaining years of $7,090, $11,897, $7,636, and $9,216.
3
Each of the respondents is a large company and each of them is a major factor in the frozen pie market in one or more regions of the country. Each entered the Salt Lake City frozen pie market before petitioner began freezing dessert pies. None of them had a plant in Utah. By the end of the period involved in this suit Pet had plants in Michigan, Pennsylvania, and California; Continental in Virginia, Iowa, and California; and Carnation in California. The Salt Lake City market was supplied by respondents chiefly from their California operations. They sold primarily on a delivered price basis.
4
The 'Utah' label was petitioner's proprietary brand. Beginning in 1960, it also sold pies of like grade and quality under the controlled label 'Frost 'N' Flame' to Associated Grocers and in 1961 it began selling to American Food Stores under the 'Mayfresh' label.5 It also, on a seasonal basis, sold pumpkin and mince frozen pies to Safeway under Safeway's own 'Bel-air' label.
5
The major competitive weapon in the Utah market was price. The location of petitioner's plant gave it natural advantages in the Salt Lake City marketing area and it entered the market at a price below the then going prices for respondents' comparable pies. For most of the period involved here its prices were the lowest in the Salt Lake City market. It was, however, challenged by each of the respondents at one time or another and for varying periods. There was ample evidence to show that each of the respondents contributed to what proved to be a deteriorating price structure over the period covered by this suit, and each of the respondents in the course of the ongoing price competition sold frozen pies in the Salt Lake market at prices lower than it sold pies of like grade and quality in other markets considerably closer to its plants. Utah Pie, which entered the market at a price of $4.15 per dozen at the beginning of the relevant period, was selling 'Utah' and 'Frost 'N' Flame' pies for $2.75 per dozen when the instant suit was filed some 44 months later.6 Pet, which was offering pies at $4.92 per dozen in February 1958, was offering 'Pet-Ritz' and 'Bel-air' pies at $3.56 and $3.46 per dozen respectively in March and April 1961. Carnation's price in early 1958 was $4.82 per dozen but it was selling at $3.46 per dozen at the conclusion of the period, meanwhile having been down as low as $3.30 per dozen. The price range experienced by Continental during the period covered by this suit ran from a 1958 high of over $5 per dozen to a 1961 low of $2.85 per dozen.7
I.
6
We deal first with petitioner's case against the Pet Milk Company. Pet entered the frozen pie business in 1955, acquired plants in Pennsylvania and California and undertook a large advertising campaign to market its 'Pet-Ritz' brand of frozen pies. Pet's initial emphasis was on quality, but in the face of competition from regional and local companies and in an expanding market where price proved to be a crucial factor, Pet was forced to take steps to reduce the price of its pies to the ultimate consumer. These developments had consequences in the Salt Lake City market which are the substance of petitioner's case against Pet.
7
First, Pet successfully concluded an arrangement with Safeway, which is one of the three largest customers for frozen pies in the Salt Lake markt, whereby it would sell frozen pies to Safeway under the latter's own 'Bel-air' label at a price significantly lower than it was selling its comparable 'Pet-Ritz' brand in the same Salt Lake market and elsewhere.8 The initial price on 'Bel-air' pies was slightly lower than Utah's price for its 'Utah' brand of pies at the time, and near the end of the period the 'Bel-air' price was comparable to the 'Utah' price but higher than Utah's 'Frost 'N' Flame' brand. Pet's Safeway business amounted to 22.8%, 12.3%, and 6.3% of the entire Salt Lake City market for the years 1959, 1960, and 1961, respectively, and to 64%, 44%, and 22% of Pet's own Salt Lake City sales for those same years.
8
Second, it introduced a 20-ounce economy pie under the 'Swiss Miss' label and began selling the new pie in the Salt Lake market in August 1960 at prices ranging from $3.25 to $3.30 for the remainder of the period. This pie was at times sold at a lower price in the Salt Lake City market than it was sold in other markets.
9
Third, Pet became more competitive with respect to the prices for its 'Pet-Ritz' proprietary label. For 18 of the relevant 44 months its offering price for Pet-Ritz pies was $4 per dozen or lower, and $3.70 or lower for six of these months. According to the Court of Appeals, in seven of the 44 months Pet's prices in Salt Lake were lower than prices charged in the California markets. This was true although selling in Salt Lake involved a 30- to 35-cent freight cost.
10
The Court of Appeals first concluded that Pet's price differential on sales to Safeway must be put aside in considering injury to competition because in its view of the evidence the differential had been completely cost justified and because Utah would not in any event have been able to enjoy the Safeway custom. Second, it concluded that the remaining discriminations on 'Pet-Ritz' and 'Swiss Miss' pies were an insufficient predicate on which the jury could have found a reasonably possible injury either to Utah Pie as a competitive force or to competition generally.
11
We disagree with the Court of Appeals in several respects. First, there was evidence from which the jury could have found considerably more price discrimination by Pet with respect to 'Pet-Ritz' and 'Swiss Miss' pies than was considered by the Court of Appeals. In addition to the seven months during which Pet's prices in Salt Lake were lower than prices in the California markets, there was evidence from which the jury could reasonably have found that in 10 additional months the Salt Lake City prices for 'Pet-Ritz' pies were discriminatory as compared with sales in western markets other than California. Likewise, with respect to 'Swiss Miss' pies, there was evidence in the record from which the jury could have found that in five of the 13 months during which the 'Swiss Miss' pies were sold prior to the filing of this suit, prices in Salt Lake City were lower than those charged by Pet in either California or some other western market.
12
Second, with respect to Pet's Safeway business, the burden of proving cost justification was on Pet9 and, in our view, reasonable men could have found that Pet's lower priced, 'Bel-air' sales to Safeway were not cost justified in their entirety. Pet introduced cost data for 1961 indicating a cost saving on the Safeway business greater than the price advantage extended to that customer. These statistics were not particularized for the Salt Lake market, but assuming that they were adequate to justify the 1961 sales, they relatd to only 24% of the Safeway sales over the relevant period. The evidence concerning the remaining 76% was at best incomplete and inferential. It was insufficient to take the defense of cost justification from the jury, which reasonably could have found a greater incidence of unjustified price discrimination than that allowed by the Court of Appeals' view of the evidence.10
13
With respect to whether Utah would have enjoyed Safeway's business absent the Pet contract with Safeway, it seems clear that whatever the fact is in this regard, it is not determinative of the impact of that contract on competitors other than Utah and on competition generally. There were other companies seeking the Safeway business, including Continental and Carnation, whose pies may have been excluded from the Safeway shelves by what the jury could have found to be discriminatory sales to Safeway.11 What is more, Pet's evidence that Utah's unwillingness to install quality control equipment prevented Utah from enjoying Safeway's private label business is not the only evidence in the record relevant to that question. There was other evidence to the contrary. The jury would not have been compelled to find that Utah Pie could not have gained more of the Safeway business.
14
Third, the Court of Appeals almost entirely ignored other evidence which provides material support for the jury's conclusion that Pet's behavior satisfied the statutory test regarding competitive injury. This evidence bore on the issue of Pet's predatory intent to injure Utah Pie.12 As an initial matter, the jury could have concluded that Pet's discriminatory pricing was aimed at Utah Pie; Pet's own management, as early as 1959, identified Utah Pie as an 'unfavorable factor,' one which 'd(u)g holes in our operation' and posed a constant 'check' on Pet's performance in the Salt Lake City market. Moreover, Pet candidly admitted that during the period when it was establishing its relationship with Safeway, it sent into Utah Pie's plant an industrial spy to seek information that would be of use to Pet in on vincing Safeway that Utah Pie was not worthy of its custom. Pet denied that it ever in fact used what it had learned against Utah Pie in competing for Safeway's business. The parties, however, are not the ultimate judges of credibiility. But even giving Pet's view of the incident a measure of weight does not mean the jury was foreclosed from considering the predatory intent underlying Pet's mode of competition. Finally, Pet does not deny that the evidence showed it suffered substantial losses on its frozen pie sales during the greater part of the time involved in this suit, and there ws evidence from which the jury could have concluded that the losses Pet sustained in Salt Lake City were greater than those incurred elsewhere. It would not have been an irrational step if the jury concluded that there was a relationship between price and the losses.
15
It seems clear to us that the jury heard adequate evidence from which it could have concluded that Pet had engaged in predatory tactics in waging competitive warfare in the Salt Lake City market. Coupled with the incidence of price discrimination attributable to Pet, the evidence as a whole established, rather than negated, the reasonable possibility that Pet's behavior produced a lessening of competition proscribed by the Act.
II.
16
Petitioner's case against Continental is not complicated. Continental was a substantial factor in the market in 1957. But its sales of frozen 22-ounce dessert pies, sold under the 'Morton' brand, amounted to only 1.3% of the market in 1958, 2.9% in 1959, and 1.8% in 1960. Its problems were primarily thatof cost and in turn that of price, the controlling factor in the market. In late 1960 it worked out a co-packing arrangement in California by which fruit would be processed directly from the trees into the finished pie without large intermediate packing, storing, and shipping expenses. Having improved its position, it attempted to increase its share of the Salt Lake City market by utilizing a local broker and offering short-term price concessions in varying amounts. Its efforts for seven months were not spectacularly successful. Then in June 1961, it took the steps which are the heart of petitioner's complaint against it. Effective for the last two weeks of June it offered its 22-ounce frozen apple pies in the Utah area at $2.85 per dozen. It was then selling the same pies at substantially higher prices in other markets. The Salt Lake City price was less than its direct cost plus an allocation for overhead. Utah's going price at the time for its 24-ounce 'Frost 'N' Flame' apple pie sold to Associated Grocers was $3.10 per dozen, and for its 'Utah' brand $3.40 per dozen. At its new prices, Continental sold pies to American Grocers in Pocatello, Idaho, and to American Food Stores in Ogden, Utah. Safeway, one of the major buyers in Salt Lake City, also purchased 6,250 dozen, its requirements for about five weeks. Another purchaser ordered 1,000 dozen. Utah's response was immediate. It reduced its price on all of its apple pies to $2.75 per dozen. Continental refused Safeway's request to match Utah's price, but renewed its offer at the same prices effective July 31 for another two-week period. Utah filed suit on September 8, 1961. Continental's total sales of frozen pies increased from 3,350 dozen in 1960 to 18,800 dozen in 1961. Its market share increased from 1.8% in 1960 to 8.3% in 1961. The Court of Appeals concluded that Continental's conduct had had only minimal effect, that it had not injured or weakened Utah Pie as a competitor, that it had not substantially lessened competition and that there was no reasonable possibility that it would do so in the future.
17
We again differ with the Court of Appeals. Its opinion that Utah was not damaged as a competitive force apparently rested on the fact that Utah's sales volume continued to climb in 1961 and on the court's own factual conclusion that Utah was not deprived of any pie business which it otherwise might have had. But this retrospective assessment fails to note that Continental's discriminatory below-cost price caused Utah Pie to reduce its price to $2.75. The jury was entitled to consider the potential impact of Continental's price reduction absent any responsive price cut by Utah Pie. Price was a major factor in the Salt Lake City market. Safeway, which had been buying Utah brand pies, immediately reacted and purchased a five-week supply of frozen pies from Continental, thereby temporarily foreclosing the proprietary brands of Utah and other firms from the Salt Lake City Safeway market. The jury could rationally have concluded that had Utah not lowered its price, Continental, which repeated its offer once, would have continued it, that Safeway would have continued to buy from Continental and that other buyers, large as well as small, would have followed suit. It could also have reasonably concluded that a competitor who is forced to reduce his price to a new all-time low in a market of declining prices will in time feel the financial pinch and will be a less effective competitive force.
18
Even if the impact on Utah Pie as a competitor was negligible, there remain the consequences to others in the market who had to compete not only with Continental's 22-ounce pie at $2.85 but with Utah's even lower price of $2.75 per dozen for both its proprietary and controlled labels. Petitioner and respondents were not the only sellers in the Salt Lake City market, although they did account for 91.8% of the sales in 1961. The evidence was that there were nine other sellers in 1960 who sold 23,473 dozen pies, 12.7% of the total market. In19 61 there were eight other sellers who sold less than the year before—18,565 dozen or 8.2% of the total—although the total market had expanded from 184,569 dozen to 226,908 dozen. We think there was sufficient evidence from which the jury could find a violation of § 2(a) by Continental.
III.
19
The Carnation Company entered the frozen dessert pie business in 1955 through the acquisition of 'Mrs. Lee's Pies' which was then engaged in manufacturing and selling frozen pies in Utah and elsewhere under the 'Simple Simon' label. Carnation also quickly found the market extremely sensitive to price. Carnation decided, however, not to enter an economy product in the market, and during the period covered by this suit it offered only its quality 'Simple Simon' brand. Its primary method of meeting competition in its markets was to offer a variety of discounts and other reductions, and the technique was not unsuccessful. In 1958, for example, Carnation enjoyed 10.3% of the Salt Lake City market, and although its volume of pies sold in that market increased substantially in the next year, its percentage of the market temporarily slipped to 8.6%. However, 1960 was a turnaround year for Carnation in the Salt Lake City market; it more than doubled its volume of sales over the preceding year and thereby gained 12.1% of the market. And while the price structure in the market deteriorated rapidly in 1961 Carnation's position remained important.
20
We need not dwell long upon the case against Carnation, which in some respects is similar to that against Continental and in others more nearly resembles the case against Pet. After Carnation's temporary setback in 1959 it instituted a new pricing policy to regain business in the Salt Lake City market. The new policy involved a slash in price of 60¢ per dozen pies, which brought Carnation's price to a level admittedly well below its costs, and well below the other prices prevailing in the market. The impact of the move was felt immediately, and the two other major sellers in the market reduced their prices. Carnation's banner year, 1960, in the end involved eight months during which the prices in Salt Lake City were lower than prices charged in other markets. The trend continued during the eight months in 1961 that preceded the filing of the complaint in this case. In each of those months the Salt Lake City prices charged by Carnation were well below prices charged in other markets, and in all but August 1961 the Salt Lake City delivered price was 20¢ to 50¢ lower than the prices charged in distant San Francisco. The Court of Appeals held that only the early 1960 prices could be found to have been below cost. That holding, however, simply overlooks evidence from which the jury could have concluded that throughout 1961 Carnation maintained a below-cost price structure and that Carnation's discriminatory pricing, no less than that of Pet and Continental, had an important effect on the Salt Lake City market. We cannot say that the evidence precluded the jury from finding it reasonably possible that Carnation's conduct would injure competition.
IV.
21
Section 2(a) does not forbid price competition which will probably injure or lessen competition by eliminating competitors, discouraging entry into the market or enhancing the market shares of the dominant sellers. But Congress has established some ground rules for the game. Sellers may not sell like goods to different purchasers at different prices if the result may be to injure competition in either the sellers' or the buyers' market unless such discriminations are justified as permitted by the Act. This case concerns the sellers' market. In this context, the Court of Appeals placed heavy emphasis on the fact that Utah Pie constantly increased its sales volume and continued to make a profit. But we disagree with its apparent view that there is no reasonably possible injury to competition as long as the volume of sales in a particular market is expanding and at least some of the competitors n the market continue to operate at a profit. Nor do we think that the Act only comes into play to regulate the conduct of price discriminators when their discriminatory prices consistently undercut other competitors. It is true that many of the primary line cases that have reached the courts have involved blatant predatory price discriminations employed with the hope of immediate destruction of a particular competitor. On the question of injury to competition such cases present courts with no difficulty, for such pricing is clearly within the heart of the proscription of the Act. Courts and commentators alike have noted that the existence of predatory intent might bear on the likelihood of injury to competition.13 In this case there was some evidence of predatory intent with respect to each of these respondents.14 There was also other evidence upon which the jury could rationally find the requisite injury to competition. The frozen pie market in Salt Lake City was highly competitive. At times Utah Pie was a leader in moving the general level of prices down, and at other times each of the respondents also bore responsibility for the downward pressure on the price structure. We believe that the Act reaches price discrimination that erodes competition as much as it does price discrimination that is intended to have immediate destructive impact. In this case, the evidence shows a drastically declining price structure which the jury could rationally attribute to continued or sporadic price discrimination. The jury was entitled to conclude that 'the effect of such discrimination,' by each of these respondents, 'may be substantially to lessen competition * * * or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination * * *.' The statutory test is one that necessarily looks forward on the basis of proven conduct in the past. Proper application of that standard here requires reversal of the judgment of the Court of Appeals.15
22
..................................Since the Court of Appeals held that petitioner had failed to make a prima facie case against each of the respondents, it expressly declined to pass on other grounds for reversal presented by the respondents. 349 F.2d 122, 126. Without intimating any views on the other grounds presented to the Court of Appeals, we reverse its judgment and remand the case to that court for further proceedings.
23
It is so ordered.
24
Reversed and remanded.
25
The Chief Justice took no part in the decision of this case.
26
Mr. Justice STEWART, with whom Mr. Justice HARLAN joins, dissenting.
27
I would affirm the judgment, agreeing substantially with the reasoning of the Court of Appeals as expressed in the thorough and conscientious opinion of Judge Phillips.
28
There is only one issue in this case in its present posture: Whether the respondents engaged in price discrimination '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 * * *.'1 Phrased more simply, did the respondents' actions have the anticompetitive effect required by the statute as an element of a cause of action?
29
The Court's own description of the Salt Lake City frozen pie market from 1958 through 1961, shows that the answer to that question must be no.2 In 1958 Utah Pie had a quasi-monopolistic 66.5% of the market. In 1961—after the alleged predations of the respondents—Utah Pie still had a commanding 45.3%, Pet had 29.4%, and the remainder of the market was divided almost equally between Continental, Carnation, and other, small local bakers. Unless we disregard the lessons so laboriously learned in scores of Sherman and Clayton Act cases, the 1961 situation has to be considered more competitive than that of 1958. Thus, if we assume that the price discrimination proven against the respondents had any effect on competition, that effect must have been beneficient.
30
That the Court has fallen into the error of reading the Robinson-Patman Act as protecting competitors, instead of competition, can be seen from its unsuccessful attempt to distinguish cases relied upon by the respondents.3 Those cases are said to be inapposite because they involved 'no general decline in price structure,' and no 'lasting impact upon prices.' But lower prices are the hallmark of intensified competition.
31
The Court of Appeals squarely identified the fallacy which the Court today embraces:
32
'* * * a contention that Utah Pie was entitled to hold the extraordinary market share percentage of 66.5, attained in 1958, falls of its own dead weight. To approve such a contention would be to hold that Utah Pie was entitled to maintain a position which approached, if it did not in fact amount to a monopoly, and could not exist in the face of proper and healthy competition.' 349 F.2d 122, 155.
33
I cannot hold that Utah Pie's monopolistic position was protected by the federal antitrust laws from effetive price competition, and I therefore respectfully dissent.
1
15 U.S.C. § 15 provides that:
'Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee.'
15 U.S.C. § 26 provides injunctive relief for private parties from violation of the antitrust laws.
2
The portion of § 2(a) relevant to the issue before the Court provides:
'That it shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce * * * where 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 * * *.'
3
Respondent Continental by counterclaim charged petitioner with violation of § 2(a) in respect to certain sales. On this issue the jury found for Continental, and although petitioner failed to move for a directed verdict on the counterclaim before its submission to the jury, the trial judge granted petitioner's motion for judgment notwithstanding the verdict. The Court of Appeals reversed the judgment notwithstanding the verdict on the counterclaim, and remanded the issue for a new trial. No question concerning the counterclaim is before the Court.
4
The order allowing certiorari requested counsel to brief and discuss at oral argument, in addition to the questions presented by the petition, the following questions:
'1. Whether, if this Court affirms the judgment and order of the Court of Appeals directing the District Court to enter judgment for respondents, petitioner can then make a motion for new trial under Rule 50(c)(2) of the Federal Rules of Civil Procedure within 10 days of the District Court's entry of judgment for respondents?
'2. Whether, if under the order of the Court of Appeals, petitioner cannot make a motion for new trial under Rule 50(c)(2) within 10 days of the District Court's entry of judgment against him, the order of the Court of Appeals directing the District Court to enter judgment for respondents is compatible with Rule 50(b) as interpreted by this Court in Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212 (67 S.Ct. 752, 91 L.Ed. 849); Globe Liquor Co. v. San Roman, 332 U.S. 571 (68 S.Ct. 246, 92 L.Ed. 177); and Weade v. Dichmann, Wright & Pugh, 337 U.S. 801 (69 S.Ct. 1326, 93 L.Ed. 1704)?
'3. Whether Rule 50(d) of the Federal Rules of Civil Procedure provides the Court of Appeals with any authority to direct the entry of judgment for respondents?'
In the light of our disposition of this case, we need not reach these questions.
5
Beginning in February 1960 petitioner sold frozen pies to a Spokane, Washington, buyer under the 'Sonny Boy' label.
6
The prices discussed herein refer to those charged for apple pies. The apple flavor has been used as the standard throughout this case, without objection from the parties, and we adhere to the practice here.
7
The Salt Lake City sales volumes and market shares of the parties to this suit as well as of other sellers during the period at issue were as follows:
1961
Carnation......................... 20,067 8.8
Continental....................... 18,799.5 8.3
Utah Pie..........................102,690 45.3
Pet............................... 66,786 29.4
Others............................ 18,565.5 8.2
Total............................ 226,908 100.0
8
The Pet-Safeway contract, entered into on January 1, 1960, obligated the Safeway organization to purchase a minimum of 1,000,000 cases (six pies per case) from Pet during the year. The contract was orally renewed for one year and thereafter to the time of the trial the production of 'Bel-air' pies by Pet for Safeway was continued without a formal contract. All of the volume of the Safeway purchases under the contract of course did not find its way to the Salt Lake City market.
9
Section 2(b) of the Robinson-Patman Act assigns the burden. 'Upon proof being made, at any hearing on a complaint under this section, that there has been discrimination in price or services or facilities furnished, the burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with a violation of this section * * *.' 49 Stat. 1526, 15 U.S.C. § 13(b). See F.T.C. v. Morton Salt Co., 334 U.S. 37, 44—45, 68 S.Ct. 822, 827, 92 L.Ed. 1196; United States v. Borden Co., 370 U.S. 460, 467, 82 S.Ct. 1309, 1313, 8 L.Ed.2d 627.
10
The only evidence cited by the Court of Appeals to justify the remaining 76% of Pet's sales to Safeway was Safeway's established practice of requiring its sellers to cost justify sales that otherwise would be illegally discriminatory. This practice was incorporated in the Pet-Safeway contract. We are unprepared to hold that a contractual obligation to cost justify price differentials is legally dispositive proof that such differentials are in fact so justified. Pet admitted that its cost-justification figures were drawn from past performance, so even crediting the data accompanying the 1960 contract regarding cost differences, Pet's additional evidence would bring under the justification umbrella only the 1959 sales. Thus, at the least, the jury was free to consider the 1960 Safeway sales as inadequately cost justified. Those sales accounted for 12.3% of the entire Salt Lake City market in that year. In the context of this case, the sales to Safeway are particularly relevant since there was evidence that private label sales influenced the general market, in this case depressing overall market prices.
11
The jury was in fact charged that it could find for petitioner if from respondents' conduct 'there is reasonably likely to be a substantial injury to competition among sellers of frozen pies in the Utah area.' R., at 1355. (Emphasis supplied.)
12
The dangers of predatory price discrimination were recognized in Moore v. Mead's Fine Bread Co., 348 U.S. 115, 75 S.Ct. 148, 99 L.Ed. 145, where such pricing was held violative of § 2(a). Subsequently, the Court noted that 'the decisions of the federal courts in primary-line-competition cases * * * consistently emphasize the unreasonably low prices and the predatory intent of the defendants.' F.T.C. v. Anheuser-Busch, Inc., 363 U.S. 536, 548, 80 S.Ct. 1267, 1274, 4 L.Ed.2d 1385. See also Balian Ice Cream Co. v. Arden Farms Co., 9 Cir., 231 F.2d 356, 369; Maryland Baking Co. v. F.T.C., 4 Cir., 243 F.2d 716; Atlas Building Prod. Co. v. Diamond Block & Gravel Co., 10 Cir., 269 F.2d 950; Anheuser-Busch, Inc. v. F.T.C., 7 Cir., 289 F.2d 835. In the latter case the court went so far as to suggest that:
'If * * * the projection (to ascertain the future effect of price discrimination) is based upon predatoriness or buccaneering, it can reasonably be forecast that an adverse effect on competition may occur. In that event, the discriminations in their incipiency are such that they may have the prescribed effect to establish a violation of § 2(a). If one engages in the latter type of pricing activity, a reasonable probability may be inferred that its willful misconduct may substantially lessen, injure, destroy or prevent competition.' 289 F.2d, at 843.
Chief Justice Hughes noted in a related antitrust context that 'knowledge of actual intent is an aid in the interpretation of facts and prediction of consequences.' Appalachian Coals, Inc. v. United States, 288 U.S. 344, 372, 53 S.Ct. 471, 478, 77 L.Ed. 825, and we do not think it unreasonable for courts to follow that lead. Although the evidence in this regard against Pet seems obvious, a jury would be free to ascertain a seller's intent from surrounding economic circumstances, which would include persistent unprofitable sales below cost and drastic price cuts themselves discriminatory. See Rowe, Price Discrimination Under the Robinson-Patman Act 141—150 (1962), commenting on the Court's statement in F.T.C. v. Anheuser-Busch, Inc., supra, that 'a price reduction below cost tends to establish (predatory) intent.' 363 U.S., at 552, 80 S.Ct., at 1276. See also Ben Hur Coal Co. v. Wells, 10 Cir., 242 F.2d 481, 486, and Balian Ice Cream Co. v. Arden Farms Co., supra, 231 F.2d at 368, in which the courts recognized the inferential value of sales below cost on the issue of intent.
13
See n. 12, supra.
14
It might be argued that the respondents' conduct displayed only fierce competitive instincts. Actual intent to injure another competitor does not, however, fall into that category, and neither, when viewed in the context of the Robinson-Patman Act, do persistent sales below cost and radical price cuts themselves discriminatory. Nor does the fact that a local competitor has a major share of the market make him fair game for discriminatory price cutting free of Robinson-Patman Act proscriptions. 'The Clayton Act proscription as to discrimination in price is not nullified merely because of a showing that the existing competition in a particular market had a major share of the sales of the product involved.' Maryland Baking Co., 52 F.T.C. 1679, 1689, aff'd, 243 F.2d 716. In that case the local competitor's share of the market when price discrimination began was 91.3%, yet the Federal Trade Commission was not impressed by the argument that the effect of the discrimination had been to terminate a monopoly and to create a competitive market.
15
Each respondent argues here that prior price discrimination cases in the courts and before the Federal Trade Commission, in which no primary line injury to competition was found, establish a standard which compels affirmance of the Court of Appeals' holding. But the cases upon which the respondents rely are readily distinguishable. In Anheuser-Busch, Inc. v. F.T.C., 289 F.2d 835, 839, there was no general decline in price structure attributable to the defendant's price discriminations, nor was there any evidence that the price discriminations were 'a single lethal weapon aimed at a victim for a predatory purpose.' Id., at 842. In Borden Co. v. F.T.C., 7 Cir., 339 F.2d 953, the court reversed the Commission's decision on price discrimination in one market for want of sufficient interstate connection, and the Commission's charge regarding the other market failed to show any lasting impact upon prices caused by the single, isolated incidet of price discrimination proved. Absence of proof that the alleged injury was due to challenged price discriminations was determinative in International Milling Co., CCH Trade Reg.Rep.Transfer Binder, 1963—1965, 16,494, 16,648. In Uarco, Inc., CCH Trade Reg.Rep.Transfer Binder, 1963—1965, 16,807, there was no evidence from which predatory intent could be inferred and no evidence of a long-term market price decline. Similar failure of proof and absence of sales below costs were evident in Quaker Oats Co., CCH Trade Reg.Rep.Transfer Binder, 1963—1965, 17,134. Dean Milk Co., 3 Trade Reg.Rep. 17,357, is not to the contrary. There in the one market where the Commission found no primary line injury there was no evidence of a generally declining price structure.
1
Section 2(a) of the Clayton Act as amended by the Robinson-Patman Act, 15 U.S.C. § 13(a).
2
See ante, p. 691, n. 7.
3
See ante, p. 703, n. 15.
| 78
|
386 U.S. 707
87 S.Ct. 1338
18 L.Ed.2d 423
Marvin CLEWIS, Petitioner,v.STATE OF TEXAS.
No. 648.
Argued March 15, 1967.
Decided April 24, 1967.
Reagan H. Legg, Midland, Tex., for petitioner.
Gilbert J. Pena, Laredo, Tex., for respondent.
Mr. Justice FORTAS delivered the opinion of the Court.
1
Petitioner, Marvin Peterson Clewis, stands convicted of the murder, by strangulation, of his wife, Dorothy Mae Clewis. The jury which found him guilty imposed a sentence of 25 years' imprisonment. During the course of his trial, petitioner moved to exclude from evidence three statements he had made while in police custody. Petitioner claimed that these statements had not been voluntarily made, and that their use against him at his trial would deny him due process of law, as guaranteed by the Fourteenth Amendment to the Constitution.1 Evidence was taken by the court outside of the jury's presence, and the structed verdict and for a new trial, both motion was overruled.2 Petitioner's third, and last, written confession was then introduced in evidence over objection. The question of its voluntariness was presented to the jury, which, by its general verdict, resolved the question against petitioner. Petitioner's constitutional objection to the use of his statement was renewed in his motions for instructed verdict, and for a new trial, both of which the trial judge overruled. On appeal, the Court of Criminal Appeals of Texas affirmed the judgment of conviction, —- S.W.2d —-. That court reviewed the record and concluded that it could not hold 'that there are any undisputed facts which rendered the confession inadmissible as a matter of law.' We disagree, and we reverse.
2
The question for determination is whether, considering the 'totality of the circumstances,'3 Marvin Clewis' statements were not voluntary and the third statement should have been excluded. We approach this question from an independent examination of the whole record, our established practice in these cases.4 Our recent observation in Davis v. State of North Carolina, 384 U.S. 737, 741, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895 (1966), applies equally here: 'As is almost invariably so in cases involving confessions obtained through unobserved police interrogation, there is a conflict in the testimony as to the events surrounding the interrogations.' For the purpose of deciding this case, we need not go beyond the State's version of the facts. Accordingly, we do not consider petitioner's claim that he was subjected to physical assaults.
3
The trial of this case was prior to the date of decision of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the requirements of which, therefore, are not directly applicable, Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), although relevant on the issue of voluntariness, Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 6 L.Ed.2d 895 (1966).
4
Petitioner was taken into custody at about 6 a.m. on Sunday, July 8, 1962, and first gave a statement to the police late in the afternoon of Monday, July 9. Thereafter, he was taken before a magistrate. On the view most favorable to the State, petitioner had been held some 38 hours before being taken before a magistrate to be charged, had had little sleep and very little food, and appeared to the police to be sick. He had been visited briefly once or twice, but had had no contact with a lawyer. He had consistently denied all knowledge of his wife's death until the point at which he agreed to give a statement, and then had confessed to killing her in a way (by shooting) that—it later developed—was inconsistent with the facts.5
5
Petitioner next gave a statement on Thursday, July 12. The events leading up to the second 'confession' may be summarized: having been formally charged, but unrepresented and unadvised by counsel, petitioner was interrogated fairly frequently and by several different officers from Monday evening to Thursday afternoon.6 During this period he was driven on a round trip of about 600 miles, was administered several polygraph tests, was detained in at least three different police buildings, and apparently had very little to eat and little contact except with policemen. Despite all this, and in the face of his earlier 'confession,' he steadfastly denied any guilt—or even knowledge with respect to his wife's death until he finally produced the second 'confession.'
6
On Friday, July 13, Clewis was delivered to the custody of the Midland County Sheriff. He remained in the county jail from then until Tuesday, July 17. During this time he was apparently not interrogated, abused, or denied adequate food and sleep. He did not, however, consult with a lawyer.
7
At about 9:30 a.m., Tuesday, July 17, petitioner was again interrogated, this time by two deputy sheriffs. He again began by denying any guilt in connection with his wife's death. No lawyer was present, nor had petitioner been advised of his right to have one appointed. The Midland County District Attorney arrived, and shortly thereafter petitioner confessed for the third time. There is no testimony that any warning of the right to remain silent was given prior to this oral confession. About 10:45 a.m. preparation of a written statement was begun, following a formal warning of the right not to make it. Shortly thereafter, Clewis signed the statement which was introduced against him at trial.
8
On this record, we cannot hold that petitioner's third statement was voluntary. It plainly cannot on these facts, be separated from the circumstances surrounding the two earlier 'confessions.' There is here no break in the stream of events from the time Sunday morning when petitioner was taken to the police station to the time Tuesday morning some nine days later that he signed the statement in issue, sufficient to insulate the statement from the effect of all that went before. Compare United States v. Bayer, 331 U.S. 532, 540, 67 S.Ct. 1394, 1398, 91 L.Ed. 1654 (1947) with Reck v. Pate, 367 U.S. 433, 444, 81 S.Ct. 1541, 1548, 6 L.Ed.2d 948 (1961).
9
Among the factors which require our conclusion that the 'confession' was not voluntary are the following:
10
(1) During this long period of custody, petitioner was never fully advised that he could consult counsel and have counsel appointed if necessary, that he was entitled to remain silent, and that anything he said could be used as evidence against him. Cf. Davis v. State of North Carolina, 384 U.. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966); Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Even after he was arraigned, he was not advised of his right to appointed counsel. Post-arraignment interrogation, over a period of more than a week, occurred without the presence of counsel for the accused, and without any waiver thereof.
11
(2) The first statement was secured following an initial taking-into-custody which was concededly not supported by probable cause,7 followed by 38 hours of intermittent interrogation—despite the Texas rule that an accused be taken before a magistrate 'immediately.' Texas Code Crim.Proc. Art. 217 (1925); now, substantially revised in other respects, Texas Code Crim.Proc. Arts. 14.06, 15.17 (1965). This was followed by the prolonged, if intermittent, interrogation by numerous officers, in several buildings, punctuated by a trip to the gravesite and a long trip to another town, and accompanied by several polygraph tests. The police testimony makes it clear that the interrogation was not intended merely to secure information, but was specifically designed to elicit a signed statement of 'the truth'—and the police view of 'the truth' was made clear to petitioner. The petitioner repudiated each of the first two confessions shortly after it was made, and denied the truth of the third one at his trial.
12
(3) The record inspires substantial concern as to the extent to which petitioner's faculties were impaired by inadequate sleep and food, sickness, and long subjection to police custody with little or no contact with anyone other than police. This factor takes on additional weight in that petitioner, a Negro, had only a fifth-grade education. He had apparently never been in trouble with the law before.
13
For the foregoing reasons, the judgment below must be and is,8 reversed.
14
Reversed.
15
Mr. Justice BLACK, Mr. Justice CLARK, and Mr. Justice HARLAN concur in the result.
1
Petitioner also claimed that his right to counsel had been violated in the securing of these confessions. Cf. Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).
2
The trial judge did not make written findings on the voluntariness issue at the time of trial. Some eight months later he certified that he had concluded that the (third) statement was in fact voluntary. This 'belated entry and filing of the trial court's findings' was accepted as a supplement to the transcript of record by the Court of Criminal Appeals.
3
Fikes v. State of Alabama, 352 U.S. 191, 197, 77 S.Ct. 281, 284, 1 L.Ed.2d 246 (1957). See also, e.g., Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966); Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963).
4
See Davis v. State of North Carolina, 384 U.S. 737, 741 742, 86 S.Ct. 1761, 1764—1765 (1966).
5
Most of the physical abuse petitioner later related allegedly occurred during this period.
6
The State contends that Clewis did consult with an attorney on Thursday morning. He insists the conference took place on Friday morning. In any event, the State does not dispute his testimony that the only subject discussed with the lawyer was the matter of a fee, and that the lawyer declined to represent him.
7
The arresting officer testified that he merely asked petitioner to accompany him to the police station. He was of the opinion that he had no probable cause to arrest petitioner. Plainly, however, petitioner must be considered to have been taken into custody either at the time the officer came to get him, or shortly thereafter when the police, by their conduct, effectively asserted a right to detain him indefinitely at the jail. The Court of Criminal Appeals was apparently of the view that the rule of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), is inapplicable to state trials—an issue upon which we express no opinion herein, since we find petitioner's statement inadmissible on other grounds.
8
At trial, petitioner moved for production by the State of all three confessions, as necessary to support his claim that the manner of their eliciting rendered them inadmissible. That these prior confessions might have been directly relevant to petitioner's central defense can scarcely be doubted; for example, it came out during the hearing on the motion to suppress that petitioner had initially confessed to killing his wife by shooting her—a claim contrary to his later confessions and to known facts later discovered—and this inconsistency lends some weight to petitioner's defense of nonvoluntariness. Perhaps there were other inconsistencies which petitioner could have shown, had he had access to the prior confessions. Under amended Rule 16 of the Federal Rules of Criminal Procedure, a federal defendant could, prior to trial, discover his own statements; it seems that under the new 1965 Texas Code of Criminal Procedure, Art. 39.14, pretrial discovery of petitioner's confessions would have been proper. Cf. also Dennis v. United States, 384 U.S. 855, 871, 86 S.Ct. 1840, 1850, 16 L.Ed.2d 973, and n. 17 (1966). This Court has suggested that in some circumstances it may be a denial of due process for a defendant to be refused any discovery of his statements to the police. Cicenia v. La Gay, 357 U.S. 504, 510 511, 78 S.Ct. 1297, 1300—1301, 2 L.Ed.2d 1523 (1958); Leland v. State of Oregon, 343 U.S. 790, 801—802, 72 .C t. 1002, 1008—1009, 96 L.Ed. 1302 (1952). In light of our disposition of this case, however, we need not reach this question.
| 01
|
386 U.S. 724
87 S.Ct. 1410
18 L.Ed.2d 482
James J. WALDRON, Petitioner,v.MOORE-McCORMACK LINES, INC.
No. 233.
Argued March 13, 1967.
Decided May 8, 1967.
Theodore H. Friedman, New York City, for petitioner.
William M. Kimball, New York City, for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
The single legal question presented by this case is whether a vessel is unseaworthy when its officers assign too few crewmen to perform a particular task in a safe and prudent manner. It is to resolve this question, which the lower courts answered in the negative1 and which has caused a conflict among circuits,2 that we granted certiorari. 385 U.S. 810, 87 S.Ct. 59, 17 L.Ed.2d 52.
2
Petitioner, a member of the crew of respondent's vessel S. S. Mormacwind, was engaged with four other seamen in a docking operation at the stern of the vessel as it approached a pier. At the last minute, the third mate, who was directing the docking, was instructed to put out an additional mooring line, a heavy eight-inch rope, which was completely coiled on the deck. The mate then ordered petitioner and another crewman to uncoil this heavy rope and carry it 56 feet to the edge of the ship. While petitioner was uncoiling a portion of the rope to carry it to the edge of the ship, he fell and injured his back. At the trial, as the Court of Appeals recognized, '(t)here was expert evidence to the effect that 3 or 4 men rather than 2 were required to carry the line in order to constitute 'safe and prudent seamanship." 356 F.2d 247, 248. Petitioner did not contend that the vessel as a whole was insufficiently manned or that there were too few men at the stern engaged in the over-all docking operation. Neither did he contend that the third mate or the seaman assigned to uncoil the rope with him was incompetent, or that the rope was itself defective. His sole contention was that the mate's assignment of two men to do the work of three or four constituted negligence and made the vessel unseaworthy. The District Court allowed the negligence issue to go to the jury, which found for respondent, but granted a directed verdict to respondent on the unseaworthiness issue, holding that the above facts could not, as a matter of law, constitute unseaworthiness. The Court of Appeals, with one judge dissenting, affirmed, holding:
3
'If someone is injured solely by reason of an act or omission on the part of any member of a crew found to be possessed of the competence of men of his calling, there can be no recovery unless the act or omission is proved to be negligent.' 356 F.2d, at 251.
4
It is here unnecessary to trace the history of the judicial development and expansion of the doctrine of unseaworthiness. That task was recently performed in Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 543—549, 80 S.Ct. 926, 929—932, 4 L.Ed.2d 941, where the Court, rejecting the notion that a shipowner is liable for temporary unseaworthiness only if he is negligent, concluded: 'There is no suggestion in any of the decisions that the duty is less onerous with respect to * * * an unseaworthy condition which may be only temporary. * * * What has evolved is a complete divorcement of unseaworthiness liability from concepts of negligence.' 362 U.S., at 549, 550, 80 S.Ct., at 933. It is that principle which we conclude the lower courts failed to apply in their decisions in this case.
5
The basic issue here is whether there is any justification, consistent with the broad remedial purposes of the doctrine of unseaworthiness, for drawing a distinction between the ship's equipment, on the one hand, and its personnel, on the other. As regards equipment, the classic case of unseaworthiness arises when the vessel is either insufficiently or defectively equipped.3 In Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561, however, the Court made it clear that the avaiab ility of safe and sufficient gear on board does not prevent the actual use of defective gear from constituting unseaworthiness, for the test of seaworthiness is to be applied 'when and where the work is to be done.' Id., at 104, 64 S.Ct. at 459. And in Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413, we further clarified the extent of unseaworthiness liability by holding that, even though the equipment furnished for the particular task is itself safe and sufficient, its misuse by the crew renders the vessel unseaworthy. We emphatically stated the basis of our holding: 'Unseaworthiness extends not only to the vessel but to the crew.' Id., at 427, 79 S.Ct. at 447. For that proposition the Court cited Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354, where we said, 'We see no reason to draw a line between the ship and the gear on the one hand and the ship's personnel on the other.' Id., at 339, 75 S.Ct. at 385.4
6
We likewise see no reason to draw that line here. That being so, under Mahnich it makes no difference that respondent's vessel was fully manned or that there was a sufficient complement of seamen engaged in the overall docking operation, for there were too few men assigned 'when and where' the job of uncoiling the rope was to be done.5 And under Crumady it makes no difference that the third mate and two men he assigned to perform the job were themselves competent seamen, or that the rope was itself a sound piece of gear. By assigning too few men to uncoil and carry the heavy rope, the mate caused both the men and the rope to be misused.
7
This analysis, we believe, is required by a clear recognition of the needs of the seaman for protection from dangerous conditions beyond his control and the role of the unseaworthiness doctrine which, by shifting the risk to the shipowner, provides that protection. If petitioner had been ordered to use a defective pulley in lifting the rope, he would clearly be protected by the doctrine of unseaworthiness. If the pulley itself were sound but petitioner had been ordered to load too much rope on it, he would likewise be protected. If four men had been assigned to uncoil the rope but two of the men lacked the strength of ordinary efficient seamen, petitioner would again be protected. Should this protection be denied merely because the shipowner, instead of supplying petitioner with unsafe gear, insufficient gear, or incompetent manual assistance, assigned him insufficient manual assistance? We think not. When this Court extended the shipowner's liability for unseaworthiness to longshoremen performing seamen's work, Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099—either on board or on the pier, Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297, either with the ship's gear or the stevedore's gear, Alaska S.S. Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798, either as employees of an independent stevedre or as employees of a ship-owner pro hac vice, Reed v. The Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448—we noted that 'the hazards of marine service, the helplessness of the men to ward off the perils of unseaworthiness, the harshness of forcing them to shoulder their losses alone, and the broad range of the 'humanitarian policy' of the doctrine of seaworthiness,' id., at 413, 83 S.Ct. at 1352, should prevent the shipowner from delegating, shifting, or escaping his duty by using the men or gear of others to perform the ship's work. By the same token, the shipowner should not be able to escape liability merely because he has used men rather than machines or physical equipment to perform that work.
8
Petitioner is entitled to present his theory of unseaworthiness to the jury, and the case is reversed and remanded for that purpose. It is so ordered.
9
Reversed and remanded.
10
Mr. Justice WHITE, with whom Mr. Justice HARLAN, Mr. Justice BRENNAN, and Mr. Justice STEWART join, dissenting.
11
Under the prevailing cases in this Court, there can be no doubt that a negligent or improvident act of a competent officer, crewman, or longshoreman can result in unseaworthiness if it renders otherwise seaworthy equipment unfit for the purpose for which it is used. Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 445. Likewise, petitioner argues, an order of a ship's officer assigning too few men to do a particular task creates an unseaworthy condition because the ship is under-manned in this specific respect. He challenges therefore the prevailing rule in the Second Circuit requiring plaintiff in situations such as this to prove not only that the order was improvident but also that the officer issuing it was not equal in competence to ordinary men in the calling. See Pinto v. States Marine Corp. of Delaware, 2 Cir., 296 F.2d 1; Ezekiel v. Volusia S.S. Co., 2 Cir., 297 F.2d 215, 91 A.L.R.2d 1013, and authorities cited therein. The majority agrees with the petitioner, at least where the improvident order requires the performance of tasks whose safe completion calls for the assignment of more men. The majority holds that the case should have gone to the jury on both the negligence and unseaworthiness claims.
12
In my view, however, this case should be disposed of on other grounds. While it is true that unseaworthiness is legally independent of negligence, Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, it cannot be denied that in many cases unseaworthiness and negligence overlap. And on the facts of this case I think the claim of negligence was identical with the claim of unseaworthiness. As the majority says, petitioner's sole assertion is that assigning two men instead of three or four to put out the line was 'negligence and made the vessel unseaworthy.' The testimony supporting the claim was that safe and prudent seamanship would require three or four men to move the line. But the jury ruled against petitioner on his negligence claim, thereby deciding that the mate employed ordinary care in assigning two men to do the task. To me, the jury simply disagreed with petitioner's witness and, based on the testimony of petitioner himself and that of the seaman who helped him, decided that it was not imprudent seamanship to have two men move the line rather than three or four. Had the jury thought otherwise and considered the job to require more than two men, it would have found the issuance of the order to be a negligent act. It is perhaps possible to conceive circumstances in which the assignment of two men to do the job of three would not be negligence, but I find no such special facts in this record. In my view, the adverse verdict on negligence makes unnecessary a retrial on the unseaworthiness claim even if one adopts the majority's resolution of the legal question presented by petitioner.
1
356 F.2d 247.
2
Compare American President Lines, Ltd. v. Reder n, 9 Cir., 345 F.2d 629, with The Magdapur, D.C., 3 F.Supp. 971; Koleris v. S. S. Good Hope, D.C., 241 F.Supp. 967; and the instant case. Other cases from the Third, Fourth, Fifth, and Ninth Circuits also seem to suggest a result different from the one reached in the instant case. See, e.g., Ferrante v. Swedish American Lines, 3 Cir., 331 F.2d 571, cert. dismissed, 379 U.S. 801, 85 S.Ct. 10, 13 L.Ed.2d 20; Thompson v. Calmar S.S. Corp., 3 Cir., 331 F.2d 657, cert. denied, 379 U.S. 913, 85 S.Ct. 259, 13 L.Ed.2d 184; Hroncich v. American President Lines, Ltd., 3 Cir., 334 F.2d 282; Scott v. Isbrandtsen Co., 4 Cir., 327 F.2d 113; Blassingill v. Waterman S.S. Corp., 9 Cir., 336 F.2d 367; June T., Inc. v. King, 5 Cir., 290 F.2d 404. For a critical discussion of the decision below, see 66 Col.L.Rev. 1180 (1966).
3
See generally Gilmore & Black, The Law of Admiralty § 6—38 et seq. (1957).
4
This statement, of course, was made in the context of our holding that unseaworthiness results when a member of the crew is 'not equal in disposition to the ordinary men of that calling.' 348 U.S., at 340, 75 S.Ct., at 385. That is so, we explained, because the shipowner has a duty to provide a crew 'competent to meet the contingencies of the voyage.' Ibid. The Court of Appeals here recognized that 'the vessel must be manned by an adequate and proper number of men,' 356 F.2d, at 251 (see, e.g., DeLima v. Trinidad Corp., 2 Cir., 302 F.2d 585; June T., Inc. v. King, 290 F.2d 404), but then proceeded to draw a distinction between a well-manned ship and a well-manned operation aboard the ship.
5
Under Mitchell, it makes no difference that the unseaworthy condition caused by inadequate manpower 'may be only temporary.' 362 U.S., at 549, 80 S.Ct., at 932. See generally Note, 76 Harv.L.Rev. 819 (1963).
| 78
|
386 U.S. 738
87 S.Ct. 1396
18 L.Ed.2d 493
Charles Robert ANDERS, Petitioner,v.STATE OF CALIFORNIA.
No. 98.
Argued March 14, 1967.
Decided May 8, 1967.
Rehearing Denied June 12, 1967.
See 388 U.S. 924, 87 S.Ct. 2094.
Ira Michael Heyman for petitioner.
George J. Roth, Los Angeles, for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
We are here concerned with the extent of the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent's appeal.
2
After he was convicted of the felony of possession of marijuana, petitioner sought to appeal and moved that the California District Court of Appeal appoint counsel for him. Such motion was granted; however, after a study of the record and consultation with petitioner, the appointed counsel concluded that there was no merit to the appeal. He so advised the court by letter and, at the same time, informed the court that petitioner wished to file a brief in his own behalf. At this juncture, petitioner requested the appointment of another attorney. This request was denied and petitioner proceeded to file his own brief pro se. The State responded and petitioner filed a reply brief. On January 9, 1959, the District Court of Appeal unanimously affirmed the conviction, People v. Anders, 167 Cal.App.2d 65, 333 P.2d 854.
3
On January 21, 1965, petitioner filed an application for a writ of habeas corpus in the District Court of Appeal in which he sought to have his case reopened. In that application he raised the issue of deprivation of the right to counsel in his original appeal because of the court's refusal to appoint counsel at the appellate stage of the proceedings.1 The court denied the application on the same day, in a brief unreported memorandum opinion. The court stated that it 'ha(d) again reviewed the record and (had) determined the appeal (to be) without merit.' The court also stated that 'the procedure prescribed by In re Nash, 61 A.C. 538, was followed in this case * * *.'2 On June 25, 1965, petitioner submitted a petition for a writ of habeas corpus to the Supreme Court of California, and the petition was denied without opinion by that court on July 14, 1965. Among other trial errors, petitioner claimed that both the judge and the prosecutor had commented on his failure to testify contrary to the holding of this Court in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). We have concluded that California's action does not comport with fair procedure and lacks that equality that is required by the Fourteenth Amendment.
I.
4
For a decade or more, a continuing line of cases has reached this Court concerning discrimination against the indigent dfe ndant on his first appeal. Beginning with Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) where it was held that equal justice was not afforded an indigent appellant where the nature of the review 'depends on the amount of money he has,' at 19, 76 S.Ct. at 591, and continuing through Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), this Court has consistently held invalid those procedures 'where the rich man, who appeals as of right, enjoys the benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself.' At 358, 83 S.Ct. at 817. Indeed, in the federal courts, the advice of counsel has long been required whenever a defendant challenges a certification that an appeal is not taken in good faith, Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593 (1957), and such representation must be in the role of an advocate, Ellis v. United States, 356 U.S. 674, 675, 78 S.Ct. 974, 975, 2 L.Ed.2d 1060 (1958), rather than as amicus curiae. In Ellis, supra, we concluded:
5
'If counsel is convinced, after conscientious investigation, that the appeal is frivolous, of course, he may ask to withdraw on that account. If the court is satisfied that counsel has diligently investigated the possible grounds of appeal, and agrees with counsel's evaluation of the case, then leave to withdraw may be allowed and leave to appeal may be denied.' At 675, 78 S.Ct. at 975.
6
In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the Sixth Amendment's requirement that 'the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence' was made obligatory on the States by the Fourteenth Amendment, the Court holding that 'in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.' At 344, 83 S.Ct. at 796. We continue to adhere to these principles.
II.
7
In petitioner's case, his appointed counsel wrote the District Court of Appeal, stating:
8
'I will not file a brief on appeal as I am of the opinion that there is no merit to the appeal. I have visited and communicated with Mr. Anders and have explained may views and opinions to him * * *. (H)e wishes to file a brief in this matter on his own behalf.'
9
The District Court of Appeal, after having examined the record, affirmed the conviction. We believe that counsel's bare conclusion, as evidenced by his letter, was not enough. It smacks of the treatment that Eskridge received, which this Court condemned, that permitted a trial judge to withhold a transcript if he found that a defendant 'has been accorded a fair and impartial trial, and in the Court's opinion no grave or prejudicial errors occurred therein.' Eskridge v. Washington State Board, 357 U.S. 214, 215, 78 S.Ct. 1061, 1062, 2 L.Ed.2d 1269 (1958). Such a procedure, this Court said, 'cannot be an adequate substitute for the right to full appellate review available to all defendants' who may not be able to afford such an expense. At 216, 78 S.Ct. at 1062. And in still another case in which 'a state officer outside the judicial system' was given the power to deprive an indigent of his appeal by refusing to order a transcript merely because he thought the 'appeal would be unsuccessful,' we reversed finding that such a procedure did not meet constitutional standards. Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963). Here the court-appointed counsel had the transcript but refused to proceed with the appeal because he found no merit in it. He filed a no-merit letter with the District Court of Appeal whereupon the court examined the record itself and affirmed the judgment. On a petition for a writ of habeas corpus some six years later it found the appeal had nome rit. It failed, however, to say whether it was frivolous or not, but, after consideration, simply found the petition to be 'without merit.' The Supreme Court, in dismissing this habeas corpus application, gave no reason at all for its decision and so we do not know the basis for its action. We cannot say that there was a finding of frivolity by either of the California courts or that counsel acted in any greater capacity than merely as amicus curiae which was condemned in Ellis, supra. Hence California's procedure did not furnish petitioner with counsel acting in the role of an advocate nor did it provide that full consideration and resolution of the matter as is obtained when counsel is acting in that capacity. The necessity for counsel so acting is highlighted by the possible disadvantage the petitioner suffered here. In his pro se brief, which was filed in 1959, he urged several trial errors but failed to raise the point that both the judge and the prosecutor had commented to the jury regarding petitioner's failure to testify. In 1965, this Court in Griffin v. State of California, supra, outlawed California's comment rule, as embodied in Art. I, § 13, of the California Constitution.
III.
10
The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court.3 His role as advocate requires that he support his client's appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.
11
This requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a nonindigent defendant is able to obtain. It would also induce the court to pursue all the more vigorously its own review because of the ready references not only to the record, but also to the legal authorities as furnished it by counsel. The no-merit letter, on the other hand, affords neither the client nor the court any aid. The former must shift entirely for himself while the court has only the cold record which it must review without the help of an advocate. Moreover, such handling would tend to protect counsel from the constantly increasing charge that he was ineffective and had not handled the case with that diligence to which an indigent defendant is entitled. This procedure will assure penniless defendants the same rightsan d opportunities on appeal—as nearly as is practicable—as are enjoyed by those persons who are in a similar situation but who are able to afford the retention of private counsel.
12
The judgment is reversed and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.
13
Judgment reversed and case remanded.
14
(May 8, 1967.)
15
Mr. Justice STEWART, whom Mr. Justice BLACK and Mr. Justice HARLAN join, dissenting.
16
The system used by California for handling indigent appeals was described by the California Supreme Court in In re Nash, 61 Cal.2d 491, 495, 39 Cal.Rptr. 205, 208, 393 P.2d 405, 408:
17
'We believe that the requirement of the Douglas case (372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811) is met * * * when, as in this case, counsel is appointed to represent the defendant on appeal, thoroughly studies the record, consults with the defendant and trial counsel, and conscientiously concludes that there are no meritorious grounds of appeal. If thereafter the appellate court is satisfied from its own review of the record in the light of any points raised by the defendant personally that counsel's assessment of the record is correct, it need not appoint another counsel to represent the defendant on appeal and may properly decide the appeal without oral argument.' (Emphasis added.)
18
The Court today holds this procedure unconstitutional, and imposes upon appointed counsel who wishes to withdraw from a case he deems 'wholly frivolous' the requirement of filing 'a brief referring to anything in the record that might arguably support the appeal.' But if the record did present any such 'arguable' issues, the appeal would not be frivolous and counsel would not have filed a 'no-merit' letter in the first place.*
19
The quixotic requirement imposed by the Court can be explained, I think, only upon the cynical assumption that an appointed lawyer's professional representation to an appellate court in a 'no-merit' letter is not to be trusted. That is an assumption to which I cannot subscribe. I cannot believe that lawyers appointed to represent indigents are so likely to be lacking in diligence, competence, or professional honesty. Certainly there was no suggestion in the present case that the petitioner's counsel was either incompetent or unethical.
20
But even if I could join in this degrading appraisal of the in forma pauperis bar, it escapes me how the procedure that the Court commands is constitutionally superior to the system now followed in California. The fundamental error in the Court's opinion, it seems to me, is its implicit assertion that there can be but a single inflexible answer to the difficult problem of how to accord equal protection to indigent appellants in each of the 50 States.
21
Believing that the procedure under which Anders' appeal was considere w as free of constitutional error, I would affirm the judgment.
1
Previously, on January 24, 1964, petitioner, while on parole, had been arrested and convicted of the felony of burglary which was affirmed on appeal. We granted certiorari, 386 U.S. 264, 87 S.Ct. 1032, 18 L.Ed.2d 40, vacated the judgment below and remanded for further consideration in light of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.
2
In re Nash, 61 Cal.2d 491, 39 Cal.Rptr. 205, 393 P.2d 405 (1964), held that the requirements of Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), are met in the event appointed counsel thoroughly studies the record, consults with the defendant and trial counsel and conscientiously concludes, and so advises the appellate court, that there are no meritorious grounds of appeal; and provided that the appellate court is satisfied from its own review of the record, in light of any points personally raised by the defendant, that appointed counsel's conclusion is correct. The appeal then proceeds without the appointment of other counsel and decision is reached without argument.
3
For comparative purposes see Tate v. United States, 123 U.S.App.D.C. 261, 359 F.2d 245, and Johnson v. United States, 124 U.S.App.D.C. 29, 360 F.2d 844, which outline the practice followed in the District of Columbia. These guidelines are elaborated in more detail in a 'Statement to be Handed by the Clerk to Appointed Counsel' which has been prepared by the Court of Appeals for the District of Columbia Circuit. We indicate no approval of the requirements set out in the statement or in the cases.
*
The Court concedes as much when it states such a brief should be filed only when counsel believes the case to be 'wholly frivolous' and then goes on to hold 'if (the California appellate court) finds any of the legal points arguable on their merits (and therefore not frivolous) it must * * * afford the indigent the assistance of counsel * * *.' Ante, p. 744. (Emphasis added.)
Even accepting the Court's requirement, one would have to perceive an 'arguable' issue in Anders' case in order to remand it for a new appeal. The most that all of the courts and lawyers who have examined his case have turned up is a claim that the prosecutor commented on his silence at trial. But Anders' conviction was affirmed by the California District Court of Appeal six years before Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 was decided. Our later decision in Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453, was based on the premise that prior to Griffin the practice of commenting on the defendant's silence was well established and thus did not raise an 'arguable' issue. Cf. O'Connor v. Ohio, 385 U.S. 92, 87 S.Ct. 252, 17 L.Ed.2d 189.
| 12
|
386 U.S. 753
87 S.Ct. 1389
18 L.Ed.2d 505
NATIONAL BELLAS HESS, INCORPORATED, Appellant,v.DEPARTMENT OF REVENUE OF the STATE OF ILLINOIS.
No. 241.
Argued Feb. 23, 1967.
Decided May 8, 1967.
Archibald Cox, Washington, D.C., for appellant.
Terence F. MacCarthy, Chicago, Ill., for appellee.
Mr. Justice STEWART delivered the opinion of the Court.
1
The appellant, National Bellas Hess, is a mail order house with its principal place of business in North Kansas City, Missouri. It is licensed to do business in only that State and in Delaware, where it is incorporated. Although the company has neither outlets nor sales representatives in Illinois, the appellee, Department of Revenue, obtained a judgment from the Illinois Supreme Court that National is required to collect and pay to the State the use taxes imposed by Ill.Rev.Stat. c. 120, § 439.3 (1965).1 Since National's constitutional objections to the imposition of this liability present a substantial federal question, we noted probable jurisdiction of its appeal.2
2
The facts bearing upon National's relationship with Illinois are accurately set forth in the opinion of the State Supreme Court:
3
'(National) does not maintain in Illinois any office, distribution house, sales house, warehouse or any other place of business; it does not have in Illinois any agent, salesman, canvasser, solicitor or other type of representative to sell or take orders, to deliver merchandise, to accept payments, or to service merchandise it sells; it does not own any tangible property, real or personal, in Illinois; it has no telephone listing in Illinois and it has not advertised its merchandise for sale in newspapers, on billboards, or by radio or television in Illinois.'3
4
All of the contacts which National does have with the State are via the United States mail or common carrier. Twice a year catalogues are mailed to the company's active or recent customers throughout the Nation, including Illinois. This mailing is supplemented by advertising 'flyers' which are occasionally mailed to past and potential customers. Ordersfo r merchandise are mailed by the customers to National and are accepted at its Missouri plant. The ordered goods are then sent to the customers either by mail or by common carrier.
5
This manner of doing business is sufficient under the Illinois statute to classify National as a '(r)etailer maintaining a place of business in this State,' since that term includes any retailer:
6
'Engaging in soliciting orders within this State from users by means of catalogues or other advertising, whether such orders are received or accepted within or without this State.' Ill.Rev.Stat. c. 120, § 439.2 (1965).
7
Accordingly, the statute requires National to collect and pay to the appellee Department the tax imposed by Illinois upon consumers who purchase the company's goods for use within the State.4 When collecting this tax, National must give the Illinois purchaser 'a receipt therefor in the manner and form prescribed by the (appellee),' if one is demanded.5 It must also 'keep such records, receipts, invoices and other pertinent books, documents, memoranda and papers as the (appellee) shall require, in such form as the (appellee) shall require,' and must submit to such investigations, hearings, and examinations as are needed by the appellee to administer and enforce the use tax law.6 Failure to keep such records or to give required receipts is punishable by a fine of up to $5,000 and imprisonment of up to six months.7 Finally, to allow service of process on an out-of-state company like National, the statute designates the Illinois Secretary of State as National's appointed agent, and jurisdiction in tax collection suits attaches when process is served on him and the company is notified by registered mail.8
8
National argues that the liabilities which Illinois has thus imposed violate the Due Process Clause of the Fourteenth Amendment and create an unconstitutional burden upon interstate commerce. These two claims are closely related. For the test whether a particular state exaction is such as to invade the exclusive authority of Congress to regulate trade between the States, and the test for a State's compliance with the requirements of due process in this area are similar. See Central R. Co. of Pa. v. Commonwealth of Pennsylvania, 370 U.S. 607, 621—622, 82 S.Ct. 1297, 1306—1307, 8 L.Ed.2d 720 (concurring opinion of Mr. Justice Black). As to the former, the Court has held that 'State taxation falling on interstate commerce * * * can only be justified as designed to make such commerce bear a fair share of the cost of the local government whose protection it enjoys.' Freeman v. Hewit, 329 U.S. 249, 253, 67 S.Ct. 274, 277, 91 L.Ed. 265. See also Central Greyhound Lines, Inc. v. Mealey, 334 U.S. 653, 663, 68 S.Ct. 1260, 1266, 92 L.Ed. 1633; Northwestern States Portland Cement Co. v. State of Minnesota, 358 U.S. 450, 462, 79 S.Ct. 357, 364, 3 L.Ed.2d 421. And in determining whether a state tax falls within the confines of the Due process Clause, the Court has said that the 'simple but controlling question is whether the state has given anything for which it can ask return.' Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444, 61 S.Ct. 246, 250, 85 L.Ed. 267. See also Standard Oil Co. v. Peck, 342 U.S. 382, 72 S.Ct. 309, 96 L.Ed. 427; Ott v. Mississippi Val. Barge Line Co., 336 U.S. 169, 174, 69 S.Ct. 432, 434, 93 L.Ed. 585. The same principles have been held applicable in determining the power of a State to impose the burdens of collecting use taxes upon interstate sales. Here, too, the Constitution requires 'some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax.' Miller Bros. Co. v. State of Maryland, 347 U.S. 340, 344—345, 74 S.Ct. 535, 539, 98 L.Ed. 744; Scripto, Inc. v. Carson, 362 U.S. 207—210—211, 80 S.Ct. 619, 621—622, 4 L.Ed.2d66 0.9 See also American Oil Co. v. Neill, 380 U.S. 451, 458, 85 S.Ct. 1130, 1134, 14 L.Ed.2d 1.
9
In applying these principles the Court has upheld the power of a State to impose liability upon an out-of-state seller to collect a local use tax in a variety of circumstances. Where the sales were arranged by local agents in the taxing State, we have upheld such power. Felt & Tarrant Mfg. Co. v. Gallagher, 306 U.S. 62, 59 S.Ct. 376, 83 L.Ed. 488; General Trading Co. v. State Tax Comm'n, 322 U.S. 335, 64 S.Ct. 1028, 88 L.Ed. 1309. We have reached the same result where the mail order seller maintained local retail stores. Nelson v. Sears, Roebuck & Co., 312 U.S. 359, 61 S.Ct. 58, 85 L.Ed. 888; Nelson v. Montgomery Ward & Co., 312 U.S. 373, 61 S.Ct. 593, 85 L.Ed. 897.10 In those situations the out-of-state seller was plainly accorded the protection and services of the taxing State. The case in this Court which represents the furthest constitutional reach to date of a State's power to deputize an out-of-state retailer as its collection agent for a use tax is Scripto, Inc. v. Carson, 362 U.S. 207, 80 S.Ct. 619, 4 L.Ed.2d 660. There we held that Florida could constitutionally impose upon a Georgia seller the duty of collecting a state use tax upon the sale of goods shipped to customers in Florida. In that case the seller had '10 wholesalers, jobbers, or 'salesmen' conducting continuous local solicitation in Florida and forwarding the resulting orders from that State to Atlanta for shipment of the ordered goods.' 362 U.S., at 211, 80 S.Ct., at 621.
10
But the Court has never held that a State may impose the duty of use tax collection and payment upon a seller whose only connection with customers in the State is by common carrier or the United States mail. Indeed, in the Sears, Roebuck case the Court sharply differentiated such a situation from one where the seller had local retail outlets, pointing out that 'those other concerns * * * are not receiving benefits from Iowa for which it has the power to exact a price.' 312 U.S., at 365, 61 S.Ct., at 589. And in Miller Bros. Co. v. State of Maryland, 347 U.S. 340, 74 S.Ct. 535, 98 L.Ed. 744, the Court held that Maryland could not constitutionally impose a use tax obligation upon a Delaware seller who had no retail outlets or sales solicitors in Maryland. There the seller advertised its wares to Maryland residents through newspaper and radio advertising, in addition to mailing circulars four times a year. As a result, it made substantial sales to Maryland customers, and made deliveries to them by its own trucks and drivers.
11
In order to uphold the power of Illinois to impose use tax burdens on National in this case, we would have to repudiate totally the sharp distinction which these and other decisions have drawn between mail order sellers with retail outlets, solicitors, or property within a State, and those who do no more than communicate with customers in the State by mail or common carrier as part of a general interstate business. But this basic distinction, which until now has been generally recognized by the state taxing authorities,11 is a valid one, and we decline to obliterate it.
12
We need not rest on the broad foundation of all that was said in the Miller Bros. opinion, for here there was neither local advertising nor local household deliveries, upon which the dissenters in Miller Bros. so largely relied. 347 U.S., at 358, 74 S.Ct., at 547. Indeed, it is difficult to conceive of commercial transactions more exclusively interstate in character than the mail order transactions here involved. And if the power of Illinois to impose use tax burdens upon National were upheld, the resulting impediments upon the free conduct of its interstate business would be neither imaginary nor remote. For if Illinois can impose such burdens, so can every other State, and so, indeed, can every municipality, every school district, and every other political subdivision throughout the Nation with power to impose sales and use taxes.12 The many variations in rates of tax,13 in allowable exemptions, and in administrative and record-keeping requirements14 could entangle National's interstate business in a virtual welter of complicated obligations to local jurisdictions with no legitimate claim to impose 'a fair share of the cost of the local government.'
13
The very purpose of the Commerce Clause was to ensure a national economy free from such unjustifiable local entanglements. Under the Constitution, this is a domain where Congress alone has the power of regulation and control.15
14
The judgment is reversed.
15
Reversed.
16
Mr. Justice FORTAS, with whom Mr. Justice BLACK and Mr. Justice DOUGLAS join, dissenting.
17
In my opinion, this Court's decision in Scripto, Inc. v. Carson, 362 U.S. 207, 80 S.Ct. 619, 4 L.Ed.2d 660 (1960), as well as a realistic approach to the facts of pp ellant's business, dictates affirmance of the judgment of the Supreme Court of Illinois.
18
National Bellas Hess is a large retail establishment specializing in wearing apparel. Directly and through subsidiaries, it operates a national retail mail order business with headquarters in North Kansas City, Missouri, and its wholly owned subsidiaries operate a large number of retail stores in various States. In 1961, appellant's net sales were in the neighborhood of $60,000,000, and its accounts receivable amounted to about $15,500,000.1
19
Its sales in Illinois amounted to $2,174,744 for the approximately 15 months for which the taxes in issue in this case were assessed. This substantial volume is obtained by twice-a-year catalogue mailings, supplemented by 'intermediate smaller 'sales books' or 'flyers," as the court below styled them. The catalogue contains about 4,000 items of merchandise. The company's mailing list includes over 5,000,000 names. The 'flyers' are sent to an even larger list than the catalogues and are occasionally mailed in bulk addressed to 'occupant.'
20
A substantial part of Bellas Hess' sales is on credit. Its catalogue features 'NBH Budget Aid Credit'—which requires no money down but requires the purchaser to make monthly payments which include a service fee or interest charge, and which also incorporates an agreement, unless expressly rejected by the purchaser, for 'Budget Aid Family Insurance.' The company also offers 'charge account' services—payable monthly including a 'service charge' if the account is not fully paid within 30 days. The form to be filled in for credit purchases contains the usual type of information, including place of employment, name of bank, marital status, home ownership or rental. Merchandise can also be bought c.o.d. or by sending a check or money order with the order for goods.2
21
There should be no doubt that this large-scale, systematic, continuous solicitation and exploitation of the Illinois consumer market is a sufficient 'nexus' to require Bellas Hess to collect from Illinois customers and to remit the use tax, especially when coupled with the use of the credit resources of residents of Illinois, dependent as that mechanism is upon the State's banking and credit institutions. Bellas Hess is not simply using the facilities of interstate commerce to serve customers in Illinois. It is regularly and continuously engaged in 'exploitation of the consumer market' of Illinois (Miller Bros. Co. v. State of Maryland, 347 U.S. 340, 347, 74 S.Ct. 535, 540, 98 L.Ed. 744 (1954)) by soliciting residents of Illinois who live and work there and have homes and banking connections there, and who, absent the solicitation of Bellas Hess, might buy locally and pay the sales tax to support their State. Bellas Hess could not carry on its business in Illinois, and particularly its substantial credit business, without utilizing Illinois banking and credit facilities. Since the case was tried on affidavits, we are not informed as to the details of the company's credit operations in Illinois. We do not know whether it utilizes credit information or collection agencies, or similar institutions. The company states that it has 'brought no suits in the State of Illinois.' Accepting this as true, it would nevertheless be unreasonable to assume that the company does not either sell or assign its accounts or otherwise take measures to collect its delinquent accounts, or that collection does not include local activities by the company or its assignees or representatives.
22
Bellas Hess enjoys the benefits of, and profits from the facilities nurtured by, the State of Illinois as fully as if it were a retail store or maintained salesmen therein. Indeed, if it did either, he benefit that it received from the State of Illinois would be no more than it now has—the ability to make sales of its merchandise, to utilize credit facilities, and to realize a profit; and, at the same time, it would be required to pay additional taxes. Under the present arrangement, it conducts its substantial, regular, and systematic business in Illinois and the State demands only that it collect from its customer-users—and remit to the State—the use tax which is merely equal to the sales tax which resident merchants must collect and remit. To excuse Bellas Hess from this obligation is to burden and penalize retailers located in Illinois who must collect the sales tax from their customers. In Illinois the rate is 3 1/2%, and when it is realized that in some communities the sales tax requires, in effect, that as much as 5% be added to the amount that customers of local, tax-paying stores must pay,3 the importance of the competitive discrimination becomes apparent. While this advantage to out-of-state sellers is tolerable and a necessary constitutional consequence where the sales are occasional, minor and sporadic and not the result of a calculated, systematic exploitation of the market, it certainly should not be extended to instances where the out-of-state company is engaged in exploiting the local market on a regular, systematic, large-scale basis. In such cases, the difference between the nature of the business conducted by the mail order house and by the local enterprise is not entitled to constitutional significance. The national mail order business amounts to over $2,400,000,000 a year.4 Some of this is undoubtedly subject to the full range of taxes because of the location of stores in the various States,5 and some of it is and should be exempt from state use tax because of its sporadic or minor nature. See Report of the Special Subcommittee on State Taxation of Interstate Commerce of the House Judiciary Committee, H.R.Rep. No. 565, 89th Cong., 1st Sess., Vol. 3 (1965), at 770—777. But the volume which, under the present decision, will be placed in a favored position and exempted from bearing its fair burden of the collection of state taxes certainly will be substantial, and as state sales taxes increase, this haven of immunity may well increase in size and importance.
23
In Scripto, supra, this Court applied a sensible, practical conception of the Commerce Clause. The interstate seller which, in that case, claimed constitutional immunity from the collection of the Florida use tax had, like appellant here, no office or place of business in the State, and had no property or employees there. It solicited orders in Florida through local 'independent contractors' or brokers paid on a commission basis. These brokers were furnished catalogues and samples, and forwarded orders to Scripto, out of state. The Court noted that the seller was 'charged with no tax—save when * * * he fails or refuses to collect it' (362 U.S., at 211, 80 S.Ct., at 621)6 and that the State 'reimburs (ed the seller) * * * for its service' as tax collector (362 U.S., at 212, 80 S.Ct., at 622). The same is true in the present case.7 I do not see how Scripto is meaningfully distinguishable from this case. In fact, Scripto involved the sale of a single article of commerce. The 'exploitation' of the State's market was by no means as pervasive or comprehensive as is here involved, nor was there any reference to the company's use of the State's credit institutions.
24
The present case is, of course, not at all controlled by Miller Bros. Co. v. State of Maryland, 347 U.S. 340, 74 S.Ct. 535, 98 L.Ed. 744 (1954). In that case, as this Court said, the company sold its merchandise at its store in Delaware; there was 'no solicitation other than the incidental effects of general advertising * * * no invasion or exploitation of the consumer market * * *.' 347 U.S., at 347, 74 S.Ct., at 540. As the Court noted in Scripto, supra, Miller Bros. was a case in which there was 'no regular, systematic displaying of its products by catalogs, samples or the like.' 362 U.S., at 212, 80 S.Ct., at 622. On the contrary, in the present case, appellant regularly sends not only its catalogue, but even bulk mailings soliciting business addressed to 'occupant,' and it offers and extends credit to residents of Illinois based on their local financial references.
25
As the Court says, the test whether an out-of-state business must comply with a state levy is variously formulated: 'whether the state has given anything for which it can ask return';8 whether the out-of-state business enjoys the protection or benefits of the State;9 whether there is a sufficient nexus: 'Some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax.'10 However this is formulated, it seems to me entirely clear that a mail order house engaged in the business of regularly, systematically, and on a large scale offering merchandise for sale in a State in competition with local retailers, and soliciting deferred-payment credit accounts from the State's residents, is not excused from compliance with the State's use tax obligations by the Commerce Clause or the Due Process Clause of the Constitution.
26
It is hardly worth remarking that appellant's expressions of consternation and alarm at the burden which the mechanics of compliance with use tax obligations would place upon it and others similarly situated should not give us pause. The burden is no greater than that placed upon local retailers by comparable sales tax obligations; and the Court's response that these administrative and record keeping requirements could 'entangle' appellant's interstate business in a welter of complicated obligations vastly underestimates the skill of contemporary man and his machines. There is no doubt that the collection of taxes from consumers is a burden; but it is no more of a burden on a mail order house such as appellant located in another State than on an enterprise in the same State which accepts orders by mail; and it is, indeed, hardly more of a burden than it is on any rd inary retail store in the taxing State.
27
I would affirm.
1
34 Ill.2d 164, 214 N.E.2d 755.
2
385 U.S. 809, 87 S.Ct. 58, 17 L.Ed.2d 50.
3
34 Ill.2d, at 166—167, 214 N.e.2d, at 757.
4
Ill.Rev.Stat. c. 120, § 439.3 (1965).
5
Id., § 439.5.
6
Id., § 439.11.
7
Id., § 439.14.
8
Id., § 439.12a.
9
Strictly speaking, there is no question of the connection or link between the State and 'the person * * * it seeks to tax.' For that person in Miller Bros. Co. v. State of Maryland, 347 U.S. 340, 74 S.Ct. 535, 98 L.Ed. 744, in Scripto, Inc. v. Carson, 362 U.S. 207, 80 S.Ct. 619, 4 L.Ed.2d 660, and in the present case is the user of the goods to whom the out-of-state retailer sells. National is not the person being directly taxed, but rather it is asked to collect the tax from the user. It is, however, made directly liable for the payment of the tax whether collected or not. Ill.Rev.Stat. c. 120, § 439.8 (1965).
10
National acknowledges its obligation to collect a use tax in Alabama, Kansas, and Mississippi, since it has retail outlets in those States.
11
As of 1965, 11 States besides Illinois had use tax statutes which eq uired a seller like National to participate in the tax collection system. However, state taxing administrators appear to have generally considered an advertising nexus insufficient. For they have testified that doubts as to the constitutionality of such statutes underlay their failure to take full advantage of their statutory authority. Report of the Special Subcommittee on State Taxation of Interstate Commerce of the House Committee on the Judiciary, Maryland H.R.Rep.No. 565, 89th Cong., 1st Sess., 631—635 (1965). These doubts were substantiated by the only other State Supreme Court that has considered the issue now before us. The Alabama Supreme Court, dealing with a situation very much like the present one, found that this application of the use tax statute would be invalid under the Federal Constitution. State v. Lane Bryant, Inc., 277 Ala. 385, 171 So.2d 91.
12
'Local sales taxes are imposed today (1965) by over 2,300 localities. * * * In most States, the local sales tax is complemented by a use tax.' H.R.Rep. No. 565, supra, at 827.
13
In 1964 there were seven different rates of sales and use taxes: 2, 2 1/4, 2 1/2, 3, 3 1/2, 4, and 5%. H.R.Rep. No. 565, supra, at 611—613, 607—608. The State of Washington has recently added an eighth, 4.2%. Wash.Rev.Code § 82.12.020 (Supp.1965).
14
'The prevailing system requires (the seller) to administer rules which differ from one State to another and whose application—especially for the industrial retailer—turns on facts which are often too remote and uncertain for the level of accuracy demanded by the prescribed system.' H.R.Rep. No. 565, supra, at 673.
'Given the broad spread of sales of even small and moderate sized companies, it is clear that if just the localities which now impose the tax were to realize anything like their potential of out-of-State registrants the recordkeeping task of multistate sellers would be clearly intolerable.' Id., at 882.
15
Congress has in fact recently evidenced an active interest in this area. See Tit. II, Pub.L. 86—272, 73 Stat. 556, as amended by Pub.L. 87—17, 75 Stat. 41, which authorized the detailed congressional study of state taxation of interstate commerce that resulted in H.R.Rep. No. 565, supra. See also H.R.Rep. No. 2013, 89th Cong., 2d Sess. (1966).
1
Moody's Industrial Manual (1962).
2
Because this case was tried on affidavits, reference has also been made to the National Bellas Hess Catalogue, Spring and Summer 1967, to supplement the picture of appellant's business afforded by the record.
3
This is the current rate in Pennsylvania. Pa.Stat.Ann., Tit. 72, § 3403—201 (1964). See The World Almanac (1967, Newspaper Enterprise Assn.) 136—137.
4
U.S. Bureau of the Census, 1963 Census of Business, Retail Trade-Area Statistics, pt. 1, table 2, p. 1—8 (1966).
5
See Nelson v. Sears, Roebuck & Co., 312 U.S. 359, 61 S.Ct. 586, 85 L.Ed. 888 (1941); Nelson v. Montgomery Ward & Co., 312 U.S. 373, 61 S.Ct. 593, 85 L.Ed. 897 (1941).
6
Our observation in Nelson . Sears, Roebuck & Co., 312 U.S. 359, 365—366, 61 S.Ct. 586, 589, 85 L.Ed. 888 (1941), is an apt response to appellant's claim that it will not be able to collect all of the tax from its purchasers: '(S)o far as assumed losses on tax collections are concerned, respondent is in no position to found a constitutional right on the practical opportunities for tax avoidance which its method of doing business affords Iowa residents, or to claim a constitutional immunity because it may elect to deliver the goods before the tax is paid.' Actually, it appears that appellant's method of doing business is such as to minimize the non-collection of the tax.
7
The Illinois statute provides for a 'discount of 2% or $5 per calendar year, whichever is greater * * * to reimburse the retailer for expenses incurred in collecting the tax, keeping records, preparing and filing returns, remitting the tax and supplying data * * *.' Ill.Rev.Stat. c. 120, § 439.9 (1965). Appellant does not claim that this amount is inadequate to reimburse it for its expenses in collecting the tax for the State.
8
Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444, 61 S.Ct. 246, 250, 85 L.Ed. 267 (1940).
9
Nelson v. Sears, Roebuck & Co., 312 U.S. 359, 364, 61 S.Ct. 586, 588, 85 L.Ed. 888 (1941).
10
Miller Bros. Co. v. State of Maryland, 347 U.S. 340, 344 345, 74 S.Ct. 535, 539. 98 L.Ed. 744 (1954).
| 78
|
386 U.S. 773
87 S.Ct. 1417
18 L.Ed.2d 522
William TURNER et al., Petitioners,v.STATE OF NEW YORK.
No. 399.
Supreme Court of the United States
Argued April 12 and 13, 1967.
May 8, 1967
Argued April 12 and 13, 1967.
Osmond K. Fraenkel, New York City, for petitioners.
H. Richard Uviller, New York City, for respondent.
PER CURIAM.
1
The writ is dismissed as improvidently granted.
2
Mr. Justice DOUGLAS, with whom Mr. Justice FORTAS concurs, dissenting.
3
This case arose out of an assembly in Duffy Square, New York City, protesting American policy in Vietnam. After a few minutes of speeches, the police dispersed the crowd, utilizing two policemen on horseback and a dozen patrolmen.
4
The complaint charged disorderly conduct,
5
'in that with intent to provoke a breach of the peace and under circumstances whereby a breach of the peace might be occasioned, the defendants did unlawfully congregate and assemble at the above location obstructing the area to the exclusion of those wishing to use same, and did delay vehicular traffic while carrying placards and using loud and boisterous language; by their actions did cause a crowd to collect; (w)hen ordered to move on the defendants did fail to do so, after being informed that their actions were not lawful.' The evidence showed that the meeting was peaceful and orderly until the horses arrived. Up to that time the crowd was apparently small with no one paying much attention. The bulk of the evidence at the trial related to acts of individual petitioners during the period when the police were trying to disperse the crowd, that is, between the advent of the horses and the arrests. After the appearance by the police, there was a minor disturbance, one person hitting a horse with a rolled-up cardboard placard, one biting a policeman, and one lying down. But these acts were not charged in the complaint. While no opinion was written by the trial court, the Appellate Term did write and in its opinion relied heavily on these post-dispersion facts to justify the convictions. 48 Misc.2d 611, 613—618, 619, 265 N.Y.S.2d 841, 843 847, 849. But as stated by Judge Hofstadter in dissent:
6
'The occurrences now offered as a basis for upholding the convictions were not the subject of the complaint charged. And the events, including any alleged disturbance by any defendant, ensuing upon the order, were the direct and immediate issue of a misconception by the police of the lawful warrant and scope of their authority.' 48 Misc.2d, at 630, 265 N.Y.S.2d, at 860.
7
A conviction on one ground may not be sustained on grounds that might have been charged but were not. 'It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was nevr made.' Cole v. State of Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644. And see Shuttlesworth v. Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176; Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469.
8
Likewise a conviction 'upon a charge not made' is not consistent with due process. De Jonge v. State of Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 81 L.Ed. 278.
9
Where First Amendment rights are involved, as they were here, we have been meticulous to insist upon clean-cut violations of ordinances protecting law and order, lest broad or fuzzy applications be used to suffocate or impair the exercise of those constitutional rights. Stromberg v. State of California, 283 U.S. 359, 369, 51 S.Ct. 532, 75 L.Ed. 1117; Edwards v. State of South Carolina, 372 U.S. 229, 237, 83 S.Ct. 684; Cox v. State of Louisiana, 379 U.S. 536, 551—552, 85 S.Ct. 453, 462—463, 13 L.Ed.2d 471; Ashton v. Kentucky, supra, 384 U.S. at 200—201, 86 S.Ct. at 1410.
10
Issues of that character and gravity are tendered here and I would resolve them.
| 23
|
386 U.S. 731
87 S.Ct. 1419
18 L.Ed.2d 488
Helen JACKSON, Petitioner,v.LYKES BROS. STEAMSHIP CO., Inc.
No. 575.
Argued April 12, 1967.
Decided May 8, 1967.
Charles R. Maloney, New Orleans, La., for petitioner.
Benjamin W. Yancey, New Orleans, La., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
Luther Jackson, employed by Lykes Bros. Steamship Company, inhaled noxious gases and died while working as a longshoreman on a Lykes vessel on navigable waters. His widow, Helen Jackson, filed this action against Lykes in the Louisiana state trial court claiming that her husband's death was proximately caused either by Lykes' negligence in operating the ship or by the ship's unseaworthiness. Lykes moved to dismiss on the ground that § 5 of the federal Longshoremen's and Harbor Workers' Compensation Act provides that compensation benefits required by that Act to be given by an employer to a longshoreman or his representative for 'injury or death' 'shall be exclusive and in place of all other liability of such employer to the employee.'1 The trial court, sustaining Lykes' motion on the ground assigned in it, dismissed petitioner's suit and th § tate Court of Appeal, Fourth Circuit, affirmed. 185 So.2d 342. The Supreme Court of Louisiana finding 'no error of law,' denied a writ of certiorari. 249 La. 460, 187 So.2d 441. We granted certiorari because it appeared that, in deciding as they did, the Louisiana courts had failed to follow our holding in Reed v. The Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448.2
2
The crucial facts in Reed v. The Yaka are strikingly similar to those in the present case. Reed, a longshoreman covered by the federal Longshoremen's and Harbor Workers' Compensation Act, was injured while loading a ship. The ship was owned by the Waterman Steamship Corporation but was being operated by a bareboat charterer as owner pro hac vice which had directly employed Reed to work on the ship as a longshoreman. When Reed filed his suit for damages in rem against the ship, the ship defended on the ground that Reed being a longshoreman could not bring a personal action against the employer-owner pro hac vice because of the Act's exclusive recovery features and consequently he could not sue the ship. We rejected this contention on the express ground that Reed could sue the owner pro hac vice personally despite the Act and despite the fact that the owner pro hac vice was his employer.
3
We held in Yaka that a longshoreman employed by a shipowner as a longshoreman could sue the owner for the ship's unseaworthiness. In doing so we pointed out that in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099,3 and other cases following it, a group of maritime workers, including stevedores, carpenters, and longshoremen, although employed by an independent contractor to work on the ship, were allowed to sue the owner for unseaworthiness of its ship.4 We also pointed out in Yaka that in Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 733, this Court had permitted a shipowner, sued by a longshoreman who had been directly hired by an independent stevedore employer under these circumstances, to bring an action over and recover from the independent stevedore employer despite the fact that the liability of the stevedore employer under the Act 'shall be exclusive and in place of all other liability.' Yaka also stressed the fact that the traditional humanitarian remedy for unseaworthiness was not to be destroyed by the kind of employment contract that a shipowner made with the people who worked on the ship.
4
In this case as in Yaka, the fact that the longshoreman was hired directly by the owner instead of by the independent stevedore company makes no difference as to the liability of the ship or its owner. In the final analysis the contention here against recovery as in Yaka is that the longshoreman who is employed to work on a ship by an independent stevedore company instead of the shipowner can recover for the unseaworthiness of the vessel, but a longshoreman hired by the same shipowner to do exactly the same kind of work on an unseaworthy ship cannot recover. We reject this contention as we did before.5 We cannot accept such a construction of the Act—an Act designed to provide equal justice to every longshoreman similarly situated. We cannot hold that Congress intended any such incongruous, absurd, and unjust result in passing this Act.
5
We adhere to Yaka and hold that the Louisiana courts committed error in dismissing petitioner's claim. Louisiana courts have broad jurisdiction of admiralty cases such as this and have frequently exercised it. In this situation it is the duty of the Louisiana courts to adjudicate this case. The judgment is reversed and remanded for trial and further proceedings in the Louisiana courts not inconsistent with this opinion. Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967; Mondou v. New York, N.H. & H.R. Co., 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327; Claflin v. Houseman, 93 U.S. 130, 23 L.Ed. 833. See Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239.
6
It is so ordered.
7
Reversed and remanded.
8
Mr. Justice STEWART, whom Mr. Justice HARLAN joins, dissenting.
9
Luther Jackson was a longshoreman. He died from injuries received in the course of his employment. A federal law clearly imposes an absolute obligation upon his employer to pay compensation to his widow.1 The law's humanitarian purpose is to ensure that all shall be compensated, regardless of the employer's fault. That law just as clearly provides that the employer's statutory obligation to pay this compensation 'shall be exclusive and in place of all other liability * * * at law or in admiralty.'2 Nonetheless, Jackson's widow brought this admiralty action against his employer in Louisiana. The state courts dismissed the action, holding that the federal law means what it says.
10
The Court today holds that this federal law cannot mean what it says, because this would lead to an 'incongruous, absurd, and unjust result.' The Court says that the result it reaches is dictated by its prior decision in Reed v. The Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448. The Louisiana courts thought that the Yaka case, which involved the intervention of a third party, was distinguishable, and so do I. But in any event I would decide this case on its own facts under the law as it was clearly written by Congress.
11
Congress, in setting up a federal system of workmen's compensation for longshoremen, imposing liability without fault upon employers, provided that this should be the exclusive remedy against the employer himself. I cannot agree that the law Congress passed is either 'incongruous,' 'absurd,' or 'unjust.' If it is, then so are the workmen's compensation laws of 49 States, all of which contain the same basic provisions.3
12
But even if I could agree with the Court's characterization of the law that Congress has written, I could never agree with the Court's judgment. It is our duty to apply the law, not to repeal it.
13
I respectfully dissent.
1
44 Stat. 1426, as set forth in 33 U.S.C. § 905, provides:
'The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death * * *.'
Section 33(a) of the Act, 44 Stat. 1440, as amended, set forth in 33 U.S.C. § 933, also provides compensation for injuries where third persons are liable:
'(a) If on account of a disability or death for which compensation is payable under this chapter the person entitled to such compensation determines that some person other than the employer or a person or persons in his employ is liable in damages, he need not elect whether to receive such compensation or to recover damages against such third person.'
2
The Court of Appeal, Fourth Circuit, affirmed the lower court's dismissal. That court, construing our recent opinion in Reed v. The Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448, as permitting only an action against a vessel owned by an employer, concluded that the exclusive remedy provisions of the Longshoremen's and Harbor Workers' Compensation Act precluded petitioner from bringing a personal action against the shipowner employer. In so holding the Court of Appeal, Fourth Circuit, stated:
'An analysis of the Yaka case reveals language which suggests that an in personam remedy may be available; the analysis likewise reveals that there exists reason for believing that the section of the Longshoremen's and Harbor Workers' Act referred to hereinabove has been taken upon the judicial anvil and hammered into an unexpected shape.
'In any event, we are of the opinion that it exemplifies more judicial integrity to conclude that the rationale emanating from Yaka merely permits a longshoreman to bring an action in rem against his employer in the federal court.' 185 So.2d, at 345.
3
Sieracki extended the doctrine of seaworthiness to a longshoreman, even though the longshoreman was not a member of the crew, and in spite of the fact that the longshoreman was entitled to compensation benefits under the Longshoremen's and Harbor Workers' Compensation Act.
4
In 1953 this Court held in Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143, that other kinds of maritime employees, besides stevedores, who performed jobs formerly done by seamen were entitled to the seaworthiness protection given in Sieracki. There we said:
'It is pointed out that Sieracki was a 'stevedore.' Hawn was not. And Hawn was not loading the vessel. On these grounds we are asked to deny Hawn the protection we held the law gave Sieracki. These slight differences in fact cannot fairly justify the distinction urged as between the two cases. Sieracki's legal protection was not based on the name 'stevedore' but on the type of work he did and its relationship to the ship and to the historic doctrine of seaworthiness. The ship on which Hawn was hurt was being loaded when the grain loading equipment developed a slight defect. Hawn was put to work on it so that the loading could go on at once. There he was hurt. His need for protection from unseaworthiness was neither more nor less than that of the stevedores then working with him on the ship or of seamen who had been or were about to go on a voyage. All were subjected to the same danger. All were entitled to like treatment under law.' 346 U.S., at 412—413, 74 S.Ct., at 206—207.
Subsequent decisions in line with the general concepts put forth by this Court have read Sieracki expansively, and a wide range of maritime employees have been granted the benefits of the seaworthiness doctrine. Carpenters (Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143); electricians (Feinman v. A. H. Bull S.S. Co., 3 Cir., 216 F.2d 393); shipcleaners (Torres v. The Kastor, 2 Cir., 227 F.2d 664, and Crawford v. Pope & Talbot, Inc., 3 Cir., 206 F.2d 784); repairmen (Read v. United States, 3 Cir., 201 F.2d 758); and riggers (Amerocean S.S. Co. v. Copp, 9 Cir., 245 F.2d 291), who performed jobs formerly done by seamen, have recovered from shipowners on the seaworthiness doctrine. See Note, 75 Yale L.J. 1174, 1183.
5
Reed v. The Yaka, 373 U.S., at 415, 83 S.Ct., at 1353:
'We think it would produce a harsh and incongruous result, one out of keeping with the dominant intent of Congress to help longshoremen, to distinguish between liability to longshoremen injured under precisely the same circumstances because some draw their pay directly from a shipowner and others from a stevedoring company doing the ship's service. Petitioner's need for protection from unseaworthiness was neither more nor less than that of a longshoreman working for a stevedoring company.'
1
Longshoremen's and Harbor Workers' Compensation Act, §§ 4, 9, 44 Stat. 1426, 1429, 33 U.S.C. §§ 904, 909.
2
Id., § 5, 44 Stat. 1426, 33 U.S.C. § 905.
3
See 1 Schneider, Workmen's Compensation §§ 89—154 (3d ed.).
| 78
|
386 U.S. 748
87 S.Ct. 1402
18 L.Ed.2d 501
Harvey Lyle ENTSMINGER, Petitioner,v.STATE OF IOWA.
No. 252.
Argued March 15, 1967.
Decided May 8, 1967.
David W. Belin, Des Moines, Iowa, for petitioner.
Don R. Bennett, Des Moines, Iowa, for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
This case, which was argued following Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, presents a similar problem in that we are here also concerned with the constitutional requirements which are binding on a State in the administration of its appellate criminal procedures with respect to convicted indigents seeking initial review of their convictions. Petitioner, who was represented at trial by a court-appointed attorney, was convicted of uttering a forged instrument in violation of Iowa law. Shortly after the verdict was rendered, he requested the trial court to appoint different counsel to aid him in the preparation of a motion for new trial. Counsel was appointed, the motion was prepared and filed but the trial court overruled it. Upon petitioner's application, the same attorney was appointed to represent him on appeal; counsel then prepared and filed a timely notice of appeal.
2
Iowa law provides alternate methods of appealing criminal convictions, the first method being an appeal on a 'clerk's transcript' which follows the notice of appeal as a matter of course.1 Under this procedure, the clerk of the trial court prepares and files a modified transcript of the proceedings below; such transcript contains only the Information or Indictment, the Grand Jury Minutes, the Bailiff's Oath, Statement and Instructions, various orders and judgment entries of the court, but does not contain the transcript of evidence nor the briefs and argument of counsel. This practice is used in the absence of a request on the part of counsel for a plenary review of the case. If such a request is made, the appellant is provided an appeal on a complete record of the trial, including not only those items included in the clerk's transcript but in addition thereto, the briefs and argument of counsel.2
3
Petitioner asked his appointed attorney to perfect a plenary appeal and counsel gave notice therefor which, though belatedly filed, was allowed by the Iowa Supreme Court. However, counsel, apparently believing that the appeal was without merit, failed to file the entire record of petitioner's trial although it had been prepared by the State and counsel had advised petitioner that he would file same. It is of note that counsel never moved the court for leave to withdraw from the case. Despite the fact that the Supreme Court had ordered the case submitted on the full record, briefs and arguments of counsel—and the record here fails to reveal any rescission of that order—the court took petitioner's case into consideration on the clerk's transcript alone as it was required to do under Iowa law.3 The conviction was affirmed by the Supreme Court of Iowa, State v. Entsminger, 137 N.W.2d 381 (1965). This was done despite the request of the petitioner a few days before the affirmance of his conviction, that the court issue an order commanding the trial court to 'transmit the certified records' to the Supreme Court for its review. We granted certiorari, 384 U.S. 1000, 86 S.Ct. 1957, 16 L.Ed.2d 1014.
4
The Attorney General of Iowa in the utmost candor and with most commendable fairness concedes that petitioner has not received 'adequate appellate review' and is entitled to an appeal free of constitutional doubt. We have examined the record carefully and agree that the clerk's transcript procedure as applied here 'can hardly be labeled adequate and effective review of the merits of the proceedings culminating in a conviction.'4 He bases his conclusions in this regard upon the holding of the Iowa Supreme Court in Weaver v. Herrick, 258 Iowa 796, 140 N.W.2d 178 (1966), where the court specifically stated:
5
'To afford an indigent defendant an adequate appeal from his conviction, the furnishing of a transcript, printed record and necessary briefs is required.' At 801—802, 140 N.W.2d, at 181.
6
As we have held again and again, an indigent defendant is entitled to the appointment of counsel to assist him on his first appeal, Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), and appointed counsel must function in the active role of an advocate, as opposed to that of amicus curiae, Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958). In Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), the Court held that a State that provided transcripts on appeal only to those who could afford them was constitutionally required to provide a 'means of affording adequate and effective appellate review to indigent defendants.' At 20, 76 S.Ct. at 591. Again in Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209 (1959), the Court, in reaffirming the Griffin rule, held that 'once the State chooses to establish appellate review in criminal cases, it may not foreclose indigents from access to any phase of that procedure because of their poverty.' At 257, 79 S.Ct. at 1168. In Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961), the Court, once again considering the question, held that such principles are not limited to direct appeals but are also applicable to post-conviction proceedings. In that case the Court held that 'the Fourteenth Amendment weighs the interests of rich and poor criminals in equal scale, and its hand extends as far to each.' At 714, 81 S.Ct. at 898. Here there is no question but that petitioner was precluded from obtaining a complete and effective appellate review of his conviction by the operation of the clerk's transcript procedure as embodied in Iowa law. Such procedure automatically deprived him of a full record, briefs, and arguments on the bare election of his appointed counsel, without providing any notice to him or to the reviewing court that he had chosen not to file the complete record in the case. By such action 'all hope of any (adequate and effective) appeal at all,' Lane v. Brown, 372 U.S. 477, 485, 83 S.Ct. 768, 773, 9 L.Ed.2d 892 (1963), was taken from the petitioner.
7
Since petitioner admittedly has not received the benefit of a first appeal with a full printed abstract of the record, briefs, and oral argument, as was his right under Iowa law, we do not reach the merits of his conviction here. We have discussed at some length the responsibility of both the appellate court and appointed counsel representing indigents on appeal in Anders v. State of California, supra, decided this day, and we need not repeat such here. The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion. It is so ordered.
8
Judgment reversed and cause remanded.
9
Mr. Justice STEWART, with whom Mr. Justice BLACK and Mr. Justice HARLAN join, concurs in the judgment and in the Court's opinion, except as it refers to Anders v. State of California, a case which he thinks involves quite different issues.
1
Iowa Code § 793.6 (1962).
2
Rules of the Supreme Court, Rule 16, Iowa Code, Vol. II, p. 2716 (1962).
3
Id., Rule 15.
4
Indeed the Attorney General has moved the Supreme Court of Iowa to change its rule with respect to the clerk's transcript system and his suggested changes and the responsibility of appointed counsel thereunder are now under advisement. We do not pass on the validity of the suggested procedure.
| 12
|
386 U.S. 767
87 S.Ct. 1414
18 L.Ed.2d 515
Robert REDRUP, Petitioner,v.STATE OF NEW YORK. William L. AUSTIN, Petitioner, v . STATE OF KENTUCKY. GENT et al., Appellants, v. STATE OF ARKANSAS.
Nos. 3, 16, 50.
Argued Oct. 10 and 11, 1966.
Decided May 8, 1967.
Rehearing Denied June 12, 1967.
See 388 U.S. 924, 87 S.Ct. 2091.
Sam Rosenwein, Burbank, Cal., for petitioner Redrup.
H. Richard Uviller, New York City, for respondent State of New York.
Stanley Fleishman, Hollywood, Cal., for petitioner Austin.
John B. Browning, Frankfort, Ky., for respondent State of Kentucky.
Emanuel Redfield, New York City, for appellant Gent et al.
Fletcher Jackson, Little Rock, Ark., for appellee State of Arkansas.
PER CURIAM.
1
These three cases arise from a recurring conflict—the conflict between asserted state power to suppress the distribution of books and magazines through criminal or civil proceedings, and the guarantees of the First and Fourteenth Amendments of the United States Constitution.
I.
2
In No. 3, Redrup v. New York, the petitioner was a clerk at a New York City newsstand. A plainclothes patrolman approached the newsstand, saw two paperback books on a rack—Lust Pool, and Shame Agent—and asked for them by name. The petitioner handed him the books and collected the price of $1.65. As a result of this transaction, the petitioner was charged in the New York City Criminal Court with violating a state criminal law.1 He was convicted, and the conviction was affirmed on appeal.
3
In No. 16, Austin v. Kentucky, the petitioner owned and operated a retail bookstore and newsstand in Paducah, Kentucky. A woman resident of Paducah purchased two magazines from a sales-girl in the petitioner's store, after asking for them by name—High Heels, and Spree. As a result of this transaction the petitioner stands convicted in the Kentucky courts for violating a criminal law of that State.2
4
In No. 50, Gent v. Arkansas, the prosecuting attorney of the Eleventh Judicial District of Arkansas brought a civil proceeding under a state statute3 to have certain issues of various magazines declared obscene, to enjoin their distribution and to obtain a judgment ordering their surrender and destruction. The magazines proceeded against were: Gent, Swank, Bachelor, Modern Man, Cavalcade, Gentleman, Ace, and Sir. The County Chancery Court entered the requested judgment after a trial with an advisory jury, and the Supreme Court of Arkansas affirmed, with minor modifications.4
5
In none of the cases was there a claim that the statute in question reflected a specific and limited state concern for juveniles. See Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645; cf. Butler v. State of Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412. In none was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it. Cf. Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233; Public Utilities Comm'n of District of Columbia v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068. And in none was there evidence of the sort of 'pandering' which the Court found significant in Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31.
II.
6
The Court originally limited review in these cases to certain particularized questions, upon the hypothesis that the material involved in each case was of a character described as 'obscene in the constitutional sense' in A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Com. of Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1.5 But we have concluded that the hypothesis upon wic h the Court originally proceeded was invalid, and accordingly that the cases can and should be decided upon a common and controlling fundamental constitutional basis, without prejudice to the questions upon which review was originally granted. We have concluded, in short, that the distribution of the publications in each of these cases is protected by the First and Fourteenth Amendments from governmental suppression, whether criminal or civil, in personam or in rem.6
7
Two members of the Court have consistently adhered to the view that a State is utterly without power to suppress, control or punish the distribution of any writings or pictures upon the ground of their 'obscenity.'7 A third has held to the opinion that a State's power in this area is narrowly limited to a distinct and clearly identifiable class of material.8 Others have subscribed to a not dissimilar standard, holding that a State may not constitutionally inhibit the distribution of literary material as obscene unless '(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,' emphasizing that the 'three elements must coalesce,' and that no such material can 'be proscribed unless it is found to be utterly without redeeming social value.' A Book Named 'John Clelands' Memoirs of a Woman of Pleasure' v. Attorney General of Com. of Massachusetts, 383 U.S. 413, 418—419, 86 S.Ct. 975, 977—978. Another Justice has not viewed the 'social value' element as an independent factor in the judgment of obscenity. Id., at 460—462, 86 S.Ct. 975, 998—999 (dissenting opinion).
8
Whichever of these constitutional views is brought to bear upon the cases before us, it is clear that the judgments cannot stand. Accordingly, the judgment in each case is reversed. It is so ordered.
9
Judgments reversed.
10
Mr. Justice HARLAN, whom Mr. Justice CLARK joins, dissenting.
11
Two of these cases, Redrup v. New York and Austin v. Kentucky, were taken to consider the standards governing the application of the scienter requirement announced in Smith v. People of State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205, for obscenity prosecutions. There it was held that a defendant criminally charged with purveying obscene material must be shown to have had some kind of knowledge of the character of such material; the quality of that knowledge, however, was not defined. The third case, Gent v. Arkansas, was taken to consider the validity of a comprehensive Arkansas anti-obscenity statute, in light of the doctrines of 'vagueness' and 'prior restraint.' The writs of certiorari in Redrup and Austin, and the notation of probable jurisdiction in Gent, were respectively limited to these issues, thus laying aside, for the purposes of these cases, the permissibility of the state determinations as to the obsceniy of the challenged publications. Accordingly the obscenity vel non of these publications was not discussed in the briefs or oral arguments of any of the parties.
12
The three cases were argued together at the beginning of this Term. Today, the Court rules that the materials could not constitutionally be adjudged obscene by the States, thus rendering adjudication of the other issues unnecessary. In short, the Court disposes of the cases on the issue that was deliberately excluded from review, and refuses to pass on the questions that brought the cases here.
13
In my opinion these dispositions do not reflect well on the processes of the Court, and I think the issues for which the cases were taken should be decided. Failing that, I prefer to cast my vote to dismiss the writs in Redrup and Austin as improvidently granted and, in the circumstances, to dismiss the appeal in Gent for lack of a substantial federal question. I deem it more appropriate to defer an expression of my own views on the questions brought here until an occasion when the Court is prepared to come to grips with such issues.
1
N.Y.Penal Law, McKinney's Consol. Laws, c. 40, § 1141(1).
2
Ky.Rev.Stat. § 436.100. The Kentucky Court of Appeals denied plenary review of the petitioner's conviction, the Chief Justice dissenting. Ky., 386 S.W.2d 270.
3
Ark.Stat.Ann. §§ 41—2713 to 41—2728.
4
239 Ark. 474, 393 S.W.2d 219.
5
Redrup v. New York, 384 U.S. 916, 86 S.Ct. 1362, 16 L.Ed.2d 438; Austin v. Kentucky, 384 U.S. 916, 86 S.Ct. 1362, 16 L.Ed.2d 438; Gent v. Arkansas, 384 U.S. 937, 86 S.Ct. 1454, 16 L.Ed.2d 537.
6
In each of the cases before us, the contention that the publications involved were basically protected by the First and Fourteenth Amendments was timely but unsuccessfully asserted in the state proceedings. In each of these cases, this contention was properly and explicitly presented for review here.
7
See Ginzburg v. United States, 383 U.S. 463, 476, 482, 86 S.Ct. 942, 950, 953 (dissenting opinions); Jacobellis v. State of Ohio, 378 U.S. 184, 196, 84 S.Ct. 1676, 1682, 12 L.Ed.2d 793 (concurring opinion); Roth v. United States, 354 U.S. 476, 508, 77 S.Ct. 1304, 1321, 1 L.Ed.2d 1498 (dissenting opinion).
8
See Ginzburg v. United States, 383 U.S. 463, 499, and n. 3, 86 S.Ct. 942, 956 (dissenting opinion). See also Magrath, The Obscenity Cases: Grapes of Roth, 1966 Supreme Court of Review 7, 69—77.
| 23
|
386 U.S. 776
87 S.Ct. 1478
18 L.Ed.2d 520
OSCAR GRUSS & SONv.UNITED STATES et al.
No. 1060.
Supreme Court of the United States
May 8, 1967
Myron S. Isaacs, for appellant.
Solicitor General Marshall, Assistant Attorney General Turner, Robert W. Ginnane and Jerome Nelson, for appellees United States and others.
Hugh B. Cox and Henry P. Sailer, for appellees Pennsylvania R. Co. and others.
Joseph Auerbach, for appellees Smith and others.
PER CURIAM.
1
Appellant is a bondholder of the New York, New Haven & Hartford Railroad Company (the New Haven), which is now undergoing a reorganization under § 77 of the Bankruptcy Act, 11 U.S.C. § 205. On April 6, 1966, the Interstate Commerce Commission directed inclusion of the New Haven in the merger of the New York Central Railroad Company and the Pennsylvania Railroad Company as soon as terms and conditions could be settled, but approved the Penn-Central merger and authorized its consummation prior to such inclusion. Appellant then petitioned the Commission to reconsider this order. The Commission allowed appellant to intervene but denied the petition to reconsider, and appellant then challenged the Commission's order of April 6 in the District Court, which dismissed the complaint on the ground, among others, that appellant lacked standing to attack the Penn-Central merger. Since that time this Court has reviewed other aspects of the Commission's order approving the merger and has directed a remand to the Commission for further proceedings. Baltimore & Ohio R. Co. v. United States, 386 U.S. 372, 87 S.Ct. 1100, 18 L.Ed.2d 159. Since the order which appellant's suit attacked is now subject to further consideration by the Commission and since proceedings to achieve inclusion of the New Haven are also under way before the Commission, it appears inappropriate to review the decision of the District Court at this time. Rather, we vacate the order of the District Court and remand the case to that court. Should appellant still be dissatisfied with the ultimate order of the Commission in the merger proceedings, it may attempt a fresh challenge in the District Court. It is so ordered.
| 78
|
386 U.S. 714
87 S.Ct. 1404
18 L.Ed.2d 475
The FLEISCHMANN DISTILLING CORPORATION et al., Petitioners,v.MAIER BREWING CO. et al.
No. 214.
Argued Feb. 14, 1967.
Decided May 8, 1967.
Moses Lasky, San Francisco, Cal., for peit ioners.
J. Albert Hutchinson, San Francisco, Cal., for respondents.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
This is a trademark case arising under the Lanham Act (60 Stat. 427, 15 U.S.C. §§ 1051—1127) in which our sole concern is with the relief that may be granted when deliberate infringement of a valid trademark has been established. The question is whether federal courts have power in that context to award reasonable attorney's fees as a separate element of recovery in light of § 35 of the Act which enumerates the available compensatory remedies.1
2
The scope of petitioners'2 trademark and the fact of respondents'3 infringement were determined by the Court of Appeals for the Ninth Circuit at an earlier stage of this litigation. 314 F.2d 149, cert. denied, 374 U.S. 830, 83 S.Ct. 1870, 10 L.Ed.2d 1053 (1963). The case was then remanded to the District Court for the Southern District of California which, after noting that the Court of Appeals had characterized respondents' infringing activities as deliberate, entered its own finding to that effect. In accord with prior rulings of certain courts of appeals4 and district courts5 that attorney's fees could be recovered if deliberate or willful infringement were established, the District Court awarded petitioners $60,000 after determining that such sum constituted reasonable attorney's fees for prosecution of this litigation. Respondents sought an immediate interlocutory appeal although petitioners' rights to an accounting and other relief remained for determination. The Court of Appeals first dismissed the appeal as premature, but after the District Court issued a certificate under 28 U.S.C. § 1292(b)6 authorization was granted. Sitting en banc the Court of Appeals reversed the award of attorney's fees, holding that under the Lanham Act federal courts are without power to make such awards. 359 F.2d 156 (1966). We granted certiorari to resolve the conflict between that holding and the prior decisions of federal courts upon which the District Court had relied. 385 U.S. 809, 87 S.Ct. 56, 17 L.Ed.2d 51 (1966). For the reasons elaborated below, we affirm.
3
As early as 1278, the courts of England were authorized to award counsel fees to successful plaintiffs in litigation.7 Similarly, since 1607 English courts have been empowered to award counsel fees to defendants in all actions where such awards might be made to plaintiffs.8 Rules governing administration of these and related provisions have developed over the years. It is now customary in England, after litigation of substantive claims has terminated, to conduct separate hearings before special 'taxing Masters' in order to determine the appropriateness and the size of an award of counsel fees. To prevent the ancillary proceedings from becoming unduly protracted and burdensome, fees which may be included in an award are usually prescribed, even including the amounts that may be recovered for letters drafted on behalf of a client.9
4
Although some American commentators have urged adoption of the English practice in this country,10 our courts have generally resisted any movement in that direction. The rule here has long been that attorney's fees are not ordinarily recoverable in the absence of a statute or enforceable contract providing therefor. This Court first announced that rule in Arcambel v. Wiseman, 3 Dall. 306, 1 L.Ed. 613 (1796), and adhered to it in later decisions. See, e.g., Hauenstein v. Lynham, 100 U.S. 483, 25 L.Ed. 628 (1880); Stewart v. Sonneborn, 98 U.S. 187, 25 L.Ed. 116 (1879); Oelrichs v. Spain, 15 Wall. 211, 21 L.Ed. 43 (1872); Day v. Woodworth, 13 How. 363, 14 L.Ed. 181 (1852). In support of the American rule, it has been argued that since litigation is at best uncertain one should not be penalized for merely defending or prosecuting a lawsuit, and that the poor might be unjustly discouraged from instituting actions to vindicate their rights if the penalty for losing included the fees of their opponents' counsel. Cf. Farmer v. Arabian American Oil Co., 379 U.S. 227, at 235, 85 S.Ct. 411, at 416, 13 L.Ed.2d 248 (1964); id., at 236—239, 85 S.Ct. 417—418 (concurring opinion of Mr. Justice Goldberg). Also, the time, expense, and difficulties of proof inherent in litigating the question of what constitutes reasonable attorney's fees would pose substantial burdens for judicial administration. Oelrichs v. Spain, supra, 15 Wall. at 231.
5
Limited exceptions to the American rule have, of course, developed.11 They have been sanctioned by this Court when overriding considerations of justice seemed to compel such a result. In appropriate circumstances, we have held, an admiralty plaintiff may be awarded counsel fees as an item of compensatory damages (not as a separate cost to be taxed). Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962). And in a civil contempt action occasioned by willful disobedience of a court order an award of attorney's fees may be authorized as part of the fine to be levied on the defendant. Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 426—428, 43 S.Ct. 458, 465, 466, 67 L.Ed. 719 (1923). The case upon which petitioners here place their principal reliance— Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939)—involved yet another exception. That exception had previously been applied in cases where a plaintiff traced or created a common fund for the benefit of others as well as himself. Central Railroad & Banking Co. v. Pettus, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915 (1885); Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1882). In that situation to have allowed the others to obtain full benefit from the plaintiff's efforts without requiring contribution or charging the common fund for attorney's fees would have been to enrich the others unjustly at the expense of the plaintiff. Sprague itself involved a variation of the common-fund situation where, although the plaintiff had not in a technical sense sued for the benefit of others or to create a common fund, the stare decisis effect of the judgment obtained by the plaintiff established as a matter of law the right of a discernible class of persons to collect upon similar claims. The Court held that the general equity power 'to do equity in a particular situation' supported an award of attorney's fees under such circumstances for the same reasons that underlay the common-fund decisions.
6
The recognized exceptions to the general rule were not, however, developed in the context of statutory causes of action for which the legislature had prescribed intricate remedies. Trademark actions under the Lanham Act do occur in such a setting. For, in the Lanham Act, Congress meticulously detailed the remedies available to a plaintiff who proves that his valid trademark has been infringed. It provided not only for injunctive relief,12 but also for compensatory recovery measured by the profits that accrued to the defendant by virtue of his infringement, the costs of the action, and damages which may be trebled in appropriate circumstances.13 Petitioners have advanced the proposition that the authority to award 'costs of the action' taken together with the introductory phrase 'subject to the principles of equity' should be deemed implicit authority for an award of attorney's fees in light of the reference in Sprague to the general equity power. But none of the considerations which supported the exception recognized in Sprague are present here. Moreover, since, with the exception of the docket fee provided by 28 U.S.C. § 1923(a),14 the statutory definition of the term 'costs' does not include attorney's fees,15 acceptance of petitioners' argument would require u t o ascribe to Congress a purpose to vary the meaning of that term without either statutory language or legislative history to support the unusual construction. When a cause of action has been created by a statute which expressly provides the remedies for vindication of the cause, other remedies should not readily be implied. Philp v. Nock, 17 Wall. 460, 21 L.Ed. 679 (1873); Teese v. Huntingdon, 23 How. 2, 16 L.Ed. 479 (1860); cf. Day v. Woodworth, 13 How. 363, 14 L.Ed. 181 (1852). Congress has overturned the specific consequence of Philp and Teese by expressly allowing recovery of attorney's fees in patent cases16 and has selectively provided a similar remedy in connection with various other statutory causes of action.17 But several attempts to introduce such a provision into the Lanham Act have failed of enactment.18 We therefore must conclude that Congress intended § 35 of the Lanham Act to mark the boundaries of the power to award monetary relief in cases arising under the Act. A judicially created compensatory remedy in addition to the express statutory remedies is inappropriate in this context.
7
Affirmed.
8
Mr. Justice STEWART, dissenting.
9
Until this case, every federal court that has faced the issue has upheld judicial power to award counsel fees in trademark infringement cases.1 In order to overrule that unbroken line of authority, I would have to be satisfied that Congress has clearly declared that counsel fees may not be awarded. The Court's opinion does not convince me that Congress has made any such declaration.2
10
It is not enough to say that Congress did not expressly provide for counsel fees in the original Lanham Act and has not subsequently amended the Act to authorize their allowance. There are many reasons for rejecting that kind of approach to statutory interpretation in this case. The Court acknowledges that a pre-Lanham Act decision—Aladdin Mfg. Co. v. Mantle Lamp Co., 116 F.2d 708 (C.A.7th Cir.)—held counsel fees were recoverable in a trademark action.3 It seems to me reasonable to assume that when Congress in the Lanham Act empowered courts to grant relief 'subject to the principles of equity'4 it was aware of the Aladdin decision and intended to preserve the rule of that case. Other provisions of the statute support this view of the underlying congressional intent. For example, the Act provides:
11
'If the court shall find that the amount of the recovery based on profits is either inadequate or excessive the court may in its discretion enter judgment for such sum as the court shall find to be just, according to the circumstances of the case.'5
12
Allowing the court to consider the 'circumstances of the case' to arrive at the amount of the judgment for the plaintiff hardly comports with the Court's view that Congress rigidly limited the scope of remedies available in trademark litigation. I cannot say, in view of these provisions, that Congress intended sub silentio to overrule the Aladdin case.6
13
The argument that Congress has declined to amend the Act to provide explicitly for counsel fees is hardly determinative. For Congress can be assumed to have known that the federal courts were consistently exercising the power to award counsel fees after the Act's passage. The failure to amend the statute to do away with this judicial power speaks as loudly for its recognition as the failure to pass the bills referred to by the Court speaks for the contrary conclusion.
14
I respectfully dissent.
1
Section 35 of the Lanham Act, 15 U.S.C. § 1117:
'When a violation of any right of the registrant of a mark registered in the Patent Office shall have been established in any civil action arising under this chapter, the plaintiff shall be entitled, subject to the provisions of sections 1111 and 1114 of this title, and subject to the principles of equity, to recover (1) defendant's profits, (2) any damages sustained by the plaintiff, and (3) the costs of the action. * * * In assessing damages the court may enter judgment, according to the circumstances of the case, for any sum above the amount found as actual damages, not exceeding three times such amount. If the court shall find that the amount of the recovery based on profits is either inadequate or excessive the court may in its discretion enter judgment for such sum as the court shall find to be just, according to the circumstances of the case. Such sum in either of the above circumstances shall constitute compensation and not a penalty.'
2
The Fleischmann Distilling Corporation owns the American distribution rights to Scotch whiskey sold under the trademark 'Black & White.' Its co-petitioner is James Buchanan & Co., Ltd., owner and registrant of the trademark.
3
Maier Brewing Company, the principal respondent, is an independent brewery which marketed a beer under the label 'Black & White' through its co-respondent, Ralphs Grocery Company.
4
E.g., Baker v. Simmons Co., 325 F.2d 580 (C.A.1st Cir. 1963); Wolfe v. National Lead Co., 272 F.2d 867 (C.A.9th Cir. 1959); Keller Products v. Rubber Linings Corp., 213 F.2d 382, 47 A.L.R.2d 1108 (C.A.7th Cir. 1954); Century Distilling Co. v. Continental Distilling Corp., 205 F.2d 140 (C.A.3d Cir. 1953); Admiral Corp. v. Penco, Inc., 203 F.2d 517 (C.A.2d Cir. 1953).As the Court of Appeals in this case pointed out, the decisions upholding awards of attorney's fees under the Lanham Act in most instances merely state the conclusion that attorney's fees are recoverable and cite prior case authority, often commencing with a pre-Lanham Act decision—Aladdin Mfg. Co. v. Mantle Lamp Co., 116 F.2d 708 (C.A.7th Cir. 1941).
5
E.g., Youthform Co. v. R. H. Macy & Co., 153 F.Supp. 87 (D.C.N.D.Ga.1957); Williamson-Dickie Mfg. Co. v. Davis Mfg. Co., 149 F.Supp. 852 (D.C.E.D.Pa.1957); Francis H. Leggett & Co. v. Premier Packing Co., 140 F.Supp. 328 (D.C.Mass.1956); Singer Mfg. Co. v. Singer Upholstering & Sewing Co., 130 F.Supp. 205 (D.C.W.D.Pa.1955).
6
'When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order * * *.'
7
Statute of Gloucester, 1278, 6 Edw. 1, c. 1. This statute, which expressly mentioned only 'the costs of his writ purchased,' was from the outset liberally construed to encompass all legal costs of suit, including counsel fees. Goodhart, Costs, 38 Yale L.J. 849, 852 (1929).
8
Statute of Westminster, 1607, 4 Jac. 1, c. 3.
9
See generally McCormick, Damages § 60 (1935); Goodhart, Costs, 38 Yale L.J. 849—872 (1929) (passim).
10
Ehrenzwei, Reimbursement of Counsel Fees and the Great Society, 54 Calif.L.Rev. 792 (1966); McCormick, Counsel Fees and Other Expenses of Litigation as an Element of Damages, 15 Minn.L.Rev. 619 (1931); Stoebuck, Counsel Fees Included in Costs: A Logical Development, 38 Colo.L.Rev. 202 (1966); Note, 65 Mich.L.Rev. 593 (1967).
11
28 U.S.C. § 1923(a), which is derived from the Fee Bill of 1853, 10 Stat. 161, might be termed a 'general exception.' It provides for recovery of nominal sums known as 'Attorney's and proctor's docket fees.' In ordinary litigation and 'on trial or final hearing' the sum recoverable under this provision is $20, to be taxed as part of the costs defined by 28 U.S.C. § 1920.
12
Section 34 of the Lanham Act, 60 Stat. 439, 15 U.S.C. § 1116.
13
Section 35 of the Lanham Act, 60 Stat. 439, 15 U.S.C. § 1117 (quoted, supra, n. 1).
14
See n. 11, supra.
15
28 U.S.C. § 1920 provides:
'A judge or clerk of any court of the United States may tax as costs the following:
'(1) Fees of the clerk and marshal;
'(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
'(3) Fees and disbursements for printing and witnesses;
'(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;
'(5) Docket fees under section 1923 of this title.
'A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.'
16
35 U.S.C. § 285. This provision was enacted in 1946, as was the Lanham Act. 60 Stat. 778. It was revised in 1952, so as to limit such recovery to 'exceptional cases.' 66 Stat. 813.
17
See, e.g., Clayton Act, § 4, 38 Stat. 731, 15 U.S.C. § 15; Communications Act of 1934, § 206, 48 Stat. 1072, 47 U.S.C. § 206; Copyright Act, 17 U.S.C. § 116; Fair Labor Standards Act, § 16(b), 52 Stat. 1069, 29 U.S.C. § 216(b); Interstate Commerce Act, § 16, 34 Stat. 590, 49 U.S.C. § 16(2); Packers and Stockyards Act, § 309(f), 42 Stat. 166, 7 U.S.C. § 210(f); Perishable Agricultural Commodities Act, § 7(b), 46 Stat. 535, 7 U.S.C. § 499g(b); Railway Labor Act, § 3 First (p), 48 Stat. 1192, 45 U.S.C. § 153 First (p); Securities Act of 1933, § 11(e), 48 Stat. 907, 15 U.S.C. § 77k(e); Securities Exchange Act of 1934, §§ 9(e), 18(a), 48 Stat. 890, 897, 15 U.S.C. §§ 78i(e), 78r(a); Servicemen's Readjustment Act, 38 U.S.C. § 1822(b); Trust Indenture Act, § 323(a), 53 Stat. 1176, 15 U.S.C. § 77www(a). See also Fed.Rules Civ.Proc. 37(a) and 56(g).
18
S. 2540, 83d Cong., 1st Sess., § 25 (1953), containing a provision for recovery of attorney's fees, passed the Senate but failed of enactment in the House of Representatives. The Report accompanying the bill stated that the provision was intended to parallel the then recent addition to the patent statute. (See n. 16, supra.) A similar provision was embodied in H.R. 7734, 84th Cong., 1st Sess., § 25 (1955), which also died after passing the originating House.
1
Footnotes 4 and 5 of the Court's opinion, ante, pp. 715-716, set out the copious authority supporting the power in trademark litigation to awrd counsel fees in appropriate circumstances.
2
This case does not involve the 'adoption of the English practice in this country,' but simply whether the established American practice of awarding counsel fees in appropriate trademark cases is to be repudiated.
3
See, ante, pp. 715-716, n. 4.
4
Section 35 of the Lanham Act, 60 Stat. 439, 15 U.S.C. § 1117.
5
Ibid.
6
This was the reasoning of the District Court in A. Smith Bowman Distillery, Inc. v. Schenley Distillers, Inc., 204 F.Supp. 374, 377:
'Mere silence and inaction by Congress cannot be held to have repealed what has been found to be a well-established judicial power. Even though the Lanham Act may have been intended to be an integrated and comprehensive set of rules for trademark regulation and litigation to the exclusion of all conflicting rules, the retention of discretionary judicial power over the fixing of costs does not seem such a threat of inconsistency that it should be implication be held pre-empted or repealed by the Act. Some more positive action on the part of the legislature is necessary to indicate the Congressional intent to regulate what has long been an orthodox judicial function.' (Footnote omitted.)
| 56
|
387 U.S. 86
87 S.Ct. 1423
18 L.Ed.2d 581
IACURCI, etc.v.LUMMUS COMPANY.
No. 6, Misc.
Decided May 15, 1967.
Arnold B. Elkind, for petitioner.
Raymond L. Falls, Jr., for respondent.
PER CURIAM.
1
Petitioner, whose husband was killed while testing the operation of a 'skip hoist,' brought this diversity action claiming that respondent had negligently designed the hoist. The Trial Judge submitted this question to the jury in the form of a special interrogatory which asked that the jury, if it found negligent design, 'please indicate' which of five specified design aspects of the hoist had been found unsafe. The jury was to answer 'Yes' or 'No' with respect to each of the five enumerated factors. The jury returned a special verdict for petitioner, answering one of the five subsections of the interrogatory in petti oner's favor and leaving the other four unanswered. The Trial Judge denied respondent's motion for judgment notwithstanding the jury's verdict, and respondent appealed.
2
The Court of Appeals in its principal opinion* concluded that 'we must take it that they (the jury) found that Lummus' negligence was not established' as to the four aspects of design covered by the unanswered subsections of the interrogatory. The court then held that the evidence did not support the jury's finding of negligence as to the fifth aspect of design and reversed the trial court's judgment with instructions to enter judgment for respondent. Petitioner sought rehearing in the Court of Appeals, noting her timely objection to the trial court's use of the special interrogatory and arguing that the Court of Appeals had improperly restricted its review of the evidence to the one aspect of design. Rehearing was denied, one judge again dissenting, and this petition for a writ of certiorari followed.
3
We do not share the Court of Appeals' confidence as to the meaning, in light of the trial court's instructions, of the jury's failure to answer four subdivisions of the interrogatory. Perhaps the jury intended to resolve these questions in respondent's favor; but the jury might have been unable to agree on these issues, or it simply might not have passed upon them because it concluded that respondent had negligently designed the hoist in another respect. In either of the latter two situations, petitioner would clearly deserve a new trial, at least as to these unresolved issues of negligence. See Union Pac. R. Co. v. Bridal Veil Lumber Co., 9 Cir., 219 F.2d 825; 5 Moore, Federal Practice P49.03(4), at 2208 (1964 ed.). Under these circumstances, we think the Court of Appeals erred in directing entry of judgment for respondent; the case should have been remanded to the Trial Judge, who was in the best position to pass upon the question of a new trial in light of the evidence, his charge to the jury, and the jury's verdict and interrogatory answers. Fed.Rule Civ.Proc. 50(d). See Neely v. Martin K. Eby Construction Co., 386 U.S. 317, 87 S.Ct. 1072, 18 L.Ed.2d 75; Weade v. Dichmann, Wright & Pugh, Inc., 337 U.S. 801, 69 S.Ct. 1326, 93 L.Ed. 1704. Accordingly, the motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted, the judgment of the Court of Appeals is vacated insofar as it directed entry of judgment for respondent, and the case is remanded with instructions to remand to the District Court to determine whether petitioner is entitled to a new trial. It is so ordered. Judgment of Court of Appeals vacated in part and case remanded with instructions.
4
Mr. Justice BLACK would reverse the judgment of the Court of Appeals and reinstate the judgment of the District Court in favor of petitioner.
5
Mr. Justice HARLAN (dissenting).
6
In Neely v. Eby Construction Co., 386 U.S. 317, 87 S.Ct. 1072, 18 L.Ed.2d 75, we held that a court of appeals might, despite denial by the trial judge of motions for a new trial and for judgment notwithstanding the verdict, appropriately instruct the district court to enter judgment against the jury-verdict winner. We also recognized in Neely, however, that there might be situations in which the necessity for a new trial would be better determined by the trial court, and that in such situations the court of appeals should return the case to the district court for such an assessment.
7
In joining Neely, I did not understand the opinion to require this Court to interpose in each case its own judgment of the relative competence of the court of appeals and of the district court to pass on the new trial motion. Rather, I understood Neely to place upon the cur t of appeals the responsibility for determining 'in its informed discretion,' supra, at 329, at 1080 of 87 S.Ct., which, if any, of the issues urged in support of a new trial 'should be reserved for the trial court.' Ibid. I think that sound judicial administration demands that this Court should overturn a considered judgment of a court of appeals on such issues only in situations of manifest abuse of discretion.
8
The Court in this instance states that it does 'not share the Court of Appeals' confidence as to the meaning, in light of the trial court's instructions, of the jury's failure to answer' subquestions included in the interrogatories. The ambiguities upon which the Court now relies were earnestly urged by petitioner in her petition for rehearing to the Court of Appeals. Petition for Rehearing 5—6, 7—8. They were, as the Court in Neely intended, before the Court of Appeals for its judgment whether the case should be returned to the District Court for determination of the necessity for a new trial. Had I been sitting on the Court of Appeals I might not have agreed with the view taken of this case by the majority there, but I cannot agree that their conclusion was a manifest abuse of their 'informed discretion.' I hope that this decision does not indicate that the Court is about to embark on a course comparable to that it set for itself in FELA cases.
9
I would affirm the judgment of the Court of Appeals.
*
In addition, one member of the panel concurred and the other dissented. The concurring opinion, though based upon a completely different aspect of this complex case, appears to adopt the interpretation of the interrogatory answers which we find unwarranted.
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