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387 U.S. 82
87 S.Ct. 1425
18 L.Ed.2d 577
James A. DOMBROWSKI et al., Petitioners,v.James EASTLAND et al.
No. 118.
Argued Feb. 20, 1967.
Decided May 15, 1967.
Arthur Kinoy, New York City, for petitioners.
Roger Robb, Washington, D.C., for respondents.
PER CURIAM.
1
The Court of Appeals for the District of Columbia Circuit sustained the order granting summary judgment to the respondents who are, respectively, the Chairman and counsel of the Internal Security Subcommittee of the Judiciary Committee of the United States Senate. Petitioners' claim is essentially that respondents tortiously entered into and participated in a conspiracy and concert of action with Louisiana officials to seize property and records of petitioners by unlawful means in violation of petitioners' Fourth Amendment rights. The circumstances of the searches and arrests involved are set forth in Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), and in Judge Wisdom's dissenting opinion in the District Court in that case, 227 F.Supp. 556, 573 (D.C.E.D.La.1964). Louisiana courts held the arrests and searches illegal because the warrants secured by the police had not been supported by a showing of probable cause. In a civil suit by these same petitioners against the Louisiana officials allegedly involved in the conspiracy, the Court of Appeals for the Fifth Circuit, reversing a summary judgment in favor of third-party defendants, held that plaintiffs had raised a genuine issue of material fact whether the Chairman 'and the other members of the (State) committee were 'acting in the sphere of legitimate legislative activity', which would entitle them to immunity.' Pfister v. Arceneaux, C.A.5th Cir., Nov. 14, 1966, 376 F.2d 821.
2
In the present case, the court below recognized 'considerable difficulty' in reaching the conclusion that, on the basis of the affidavits of the parties, there were no disputed issues of fact with respect to petitioners' claim. It nevertheless upheld summary dismissal of the action on the ground that 'the record before the District Court contained unchallenged facts of a nature and scope sufficient to give (respondents) an immunity against answerability in damages * * *.' In support of this conclusion the court addressed itself to only that part of petitioners' claims which related to the take-over of the records by respondents after the 'raids.' As to this, it held that the subject matter of the seized records was within the jurisdiction of the Seat e Subcommittee and that the issuance of subpoenas to the Louisiana committee to obtain the records held by it was validated by subsequent Subcommittee ratification. On this basis, the court held that the acts for which petitioners seek relief were privileged, citing Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951).
3
The court did not specifically comment upon petitioners' contention that the record shows a material dispute of fact as to their claim that respondent Sourwine actively collaborated with counsel to the Louisiana committee in making the plans for the allegedly illegal 'raids' pursuant to the claimed authority of the Louisiana committee and on its behalf, in which petitioners claim that their property and records were seized in violation of their Fourth Amendment rights. In the absense of the factual refinement which can occur only as a result of trial, we need not and, indeed, could not express judgment as to the legal consequences of such collaboration, if it occurred.
4
There is controverted evidence in the record, such as the date appearing on certain documents which respondents' evidence disputes as a typographical error, which affords more than merely colorable substance to petitioners' assertions as to respondent Sourwine. We make no comment as to whether this evidence standing alone would be sufficient to support a verdict in petitioners' favor against respondent Sourwine, or would require a verdict in his favor. But we believe that, as against an employee of the committee, this showing is sufficient to entitle petitioners to go to trial. In respect of respondent Eastland, we agree with the lower courts that petitioners' complaint must be dismissed. The record does not contain evidence of his involvement in any activity that could result in liability. It is the purpose and office of the doctrine of legislative immunity, having its roots as it does in the Speech or Debate Clause of the Constitution, Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L.Ed. 377 (1881), that legislators engaged 'in the sphere of legitimate legislative activity', Tenney v. Brandhove, supra, 341 U.S., at 376, 71 S.Ct., at 788, should be protected not only from the consequences of litigation's results but also from the burden of defending themselves. This Court has held, however, that this doctrine is less absolute, although applicable, when applied to officers or employees of a legislative body, rather than to legislators themselves. As the Court said in Tenney v. Brandhove, supra, the doctrine, in respect of a legislator, 'deserves greater respect than where an official acting on behalf of the legislature is sued * * *.'* (341 U.S., at 378, 71 S.Ct., at 789) Cf. Wheeldin v. Wheeler, 373 U.S. 647, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963). In light of this principle, we are compelled to hold that there is a sufficient factual dispute with respect to respondent Sourwine to require reversal of the judgment below as to him.
5
Accordingly, we affirm the order of the Court of Appeals as to respondent Eastland and reverse and remand to the District Court as to respondent Sourwine for further proceedings in accordance with this opinion.
6
Mr. Justice BLACK took no part in the consideration or decision of this case.
7
Partly affirmed and partly reversed and remanded.
*
As the Court pointed out in Tenney, supra (per Frankfurter, J.), in Kilbourn v. Thompson, supra, this Court 'allowed a judgment against the Sergeant-at-Arms, but found that one could not be entered against the defendant members of the House.' 341 U.S. at 378, 71 S.Ct. at 789.
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387 U.S. 1
87 S.Ct. 1428
18 L.Ed.2d 527
Application of Paul L. GAULT and Marjorie Gault, Father and Mother of Gerald Francis Gault, a Minor, Appellants.
No. 116.
Argued Dec. 6, 1966.
Decided May 15, 1967.
[Syllabus from pages 1-3 intentionally omitted]
Norman Dorsen, New York City, for appellants.
Frank A. Parks, Phoenix, Ariz., for appellee, pro hac vice, by special leave of Court.
Merritt W. Gren, Toledo, Ohio, for Ohio Ass'n of Juvenile Court Judges, as amicus curiae.
Mr. Justice FORTAS delivered the opinion of the Court.
1
This is an appeal under 28 U.S.C. § 1257 (2) from a judgment of the Supreme Court of Arizona affirming the dismissal of a petition for a writ of habeas corpus. 99 Ariz. 181, 407 P.2d 760 (1965). The petition sought the release of Gerald Francis Gault, appellants' 15-year-old son, who had been committed as a juvenile delinquent to the State Industrial School by the Juvenile Court of Gila County, Arizona. The Supreme Court of Arizona affirmed dismissal of the writ against various arguments which included an attack upon the constitutionality of the Arizona Juvenile Code because of its alleged denial of procedural due process rights to juveniles charged with being 'delinquents.' The court agreed that the constitutional guarantee of due process of law is applicable in such proceedings. It held that Arizona's Juvenile Code is to be read as 'impliedly' implementing the 'due process concept.' It then proceeded to identify and describe 'the particular elements which constitute due process in a juvenile hearing.' It concluded that the proceedings ending in commitment of Gerald Gault did not offend those requirements. We do not agree, and we reverse. We begin with a statement of the facts.
I.
2
On Monday, June 8, 1964, at about 10 a.m., Gerald Francis Gault and a friend, Ronald Lewis, were taken into custody by the Sheriff of Gila County. Gerald was then still subject to a six months' probation order which had been entered on February 25, 1964, as a result of his having been in the company of another boy who had stolen a wallet from a lady's purse. The police action on June 8 was taken as the result of a verbal complaint by a neighbor of the boys, Mrs. Cook, about a telephone call made to her in which the caller or callers made lewd or indecent remarks. It will suffice for purposes of this opinion to say that the remarks or questions put to her were of the irritatingly offensive, adolescent, sex variety.
3
At the time Gerald was picked up, his mother and father were both at work. No notice that Gerald was being taken into custody was left at the home. No other steps were taken to advise them that their son had, in effect, been arrested. Gerald was taken to the Children's Detention Home. When his mother arrived home at about 6 o'clock, Gerald was not there. Gerald's older brother was sent to look for him at the trailer home of the Lewis family. He apparently learned then that Gerald was in custody. He so informed his mother. The two of them went to the Detention Home. The deputy probation officer, Flagg, who was also superintendent of the Detention Home, told Mrs. Gault 'why Jerry was there' and said that a hearing would be held in Juvenile Court at 3 o'clock the following day, June 9.
4
Officer Flagg filed a petition with the court on the hearing day, June 9, 1964. It was not served on the Gaults. Indeed, none of them saw this petition until the habeas corpus hearing on August 17, 1964. The petition was entirely formal. It made no reference to any factual basis for the judicial action which it initiated. It recited only that 'said minor is under the age of eighteen years, and is in need of the protection of this Honorable Court; (and that) said minor is a delinquent minor.' It prayed for a hearing and an order regarding 'the care and custody of said minor.' Officer Flagg executed a formal affidavit in support of the petition.
5
On June 9, Gerald, his mother, his older brother, and Probation Officers Flagg and Henderson appeared before the Juvenile Judge in chambers. Gerald's father was not there. He was at work out of the city. Mrs. Cook, the complainant, was not there. No one was sworn at this hearing. No transcript or recording was made. No memorandum or record of the substance of the proceedings was prepared. Our information about the proceedings and the subsequent hearing on June 15, derives entirel f rom the testimony of the Juvenile Court Judge,1 Mr. and Mrs. Gault and Officer Flagg at the habeas corpus proceeding conducted two months later. From this, it appears that at the June 9 hearing Gerald was questioned by the judge about the telephone call. There was conflict as to what he said. His mother recalled that Gerald said he only dialed Mrs. Cook's number and handed the telephone to his friend, Ronald. Officer Flagg recalled that Gerald had admitted making the lewd remarks. Judge McGhee testified that Gerald 'admitted making one of these (lewd) statements.' At the conclusion of the hearing, the judge said he would 'think about it.' Gerald was taken back to the Detention Home. He was not sent to his own home with his parents. On June 11 or 12, after having been detained since June 8, Gerald was released and driven home.2 There is no explanation in the record as to why he was kept in the Detention Home or why he was released. At 5 p.m. on the day of Gerald's release, Mrs. Gault received a note signed by Officer Flagg. It was on plain paper, not letterhead. Its entire text was as follows:
6
'Mrs. Gault:
7
'Judge McGHEE has set Monday June 15, 1964 at 11:00 A.M. as the date and time for further Hearings on Gerald's delinquency
8
'/s/ Flagg' At the appointed time on Monday, June 15, Gerald, his father and mother, Ronald Lewis and his father, and Officers Flagg and Henderson were present before Judge McGhee. Witnesses at the habeas corpus proceeding differed in their recollections of Gerald's testimony at the June 15 hearing. Mr. and Mrs. Gault recalled that Gerald again testified that he had only dialed the number and that the other boy had made the remarks. Officer Flagg agreed that at this hearing Gerald did not admit making the lewd remarks.3 But Judge McGhee recalled that 'there was some admission again of some of the lewd statements. He—he didn't admit any of the more serious lewd statements.'4 Again, the complainant, Mrs. Cook, was not present. Mrs. Gault asked that Mrs. Cook be present 'so she could see which boy that done the talking, the dirty talking over the phone.' The Juvenile Judge said 'she didn't have to be present at that hearing.' The judge did not speak to Mrs. Cook or communicate with her at any time. Probation Officer Flagg had talked to her once—over the telephone on June 9.
9
At this June 15 hearing a 'referral report' made by the probation officers was filed with the court, although not disclosed to Gerald or his parents. This listed the charge as 'Lewd Phone Calls.' At the conclusion of the hearing, the judge committed Gerald as a juvenile delinquent to the State Industrial School 'for the period of his minority (that is, until 21), unless sooner discharged by due process of law.' An order to that effect was entered. It recites that 'after a full hearing and due deliberation the Court finds that said minor is a delinquent child, and that said minor is of the age of 15 years.'
10
No appal is permitted by Arizona law in juvenile cases. On August 3, 1964, a petition for a writ of habeas corpus was filed with the Supreme Court of Arizona and referred by it to the Superior Court for hearing.
11
At the habeas corpus hearing on August 17, Judge McGhee was vigorously cross-examined as to the basis for his actions. He testified that he had taken into account the fact that Gerald was on probation. He was asked 'under what section of * * * the code you found the boy delinquent?'
12
His answer is set forth in the margin.5 In substance, he concluded that Gerald came within ARS § 8—201, subsec. 6(a), which specifies that a 'delinquent child' includes one 'who has violated a law of the state or an ordinance or regulation of a political subdivision thereof.' The law which Gerald was found to have violated is ARS § 13—377. This section of the Arizona Criminal Code provides that a person who 'in the presence or hearing of any woman or child * * * uses vulgar, abusive or obscene language, is guilty of a misdemeanor * * *.' The penalty specified in the Criminal Code, which would apply to an adult, is $5 to $50, or imprisonment for not more than two months. The judge also testified that he acted under ARS § 8 201, subsec. 6(d) which includes in the definition of a 'delinquent child' one who, as the judge phrased it, is 'habitually involved in immoral matters.'6
13
Asked about the basis for his conclusion that Gerald was 'habitually involved in immoral matters,' the judge testified, somewhat vaguely, that two years earlier, on July 2, 1962, a 'referral' was made concerning Gerald, 'where the boy had stolen a baseball glove from another boy and lied to the Police Department about it.' The judge said there was 'no hearing,' and 'no accusation' relating to this incident, 'because of lack of material foundation.' But it seems to have remained in his mind as a relevant factor. The judge also testified that Gerald had admitted making other nuisance phone calls in the past which, as the judge recalled the boy's testimony, were 'silly calls, or funny calls, or something like that.'
14
The Superior Court dismissed the writ, and appellants sought review in the Arizona Supreme Court. That court stated that it considered appellants' assignments of error as urging (1) that the Juvenile Code, ARS § 8—201 to § 8—239, is unconstitutional because it does not require that parents and children be apprised of the specific charges, does not require proper notice of a hearing, and does not provide for an appeal; and (2) that the proceedings and order relating to Gerald constituted a denial of due process of law because of the absence of adequate notice of the charge and the hearing; failure to notify appellants of certain constitutional rights including th r ights to counsel and to confrontation, and the privilege against self-incrimination; the use of unsworn hearsay testimony; and the failure to make a record of the proceedings. Appellants further asserted that it was error for the Juvenile Court to remove Gerald from the custody of his parents without a showing and finding of their unsuitability, and alleged a miscellany of other errors under state law.
15
The Supreme Court handed down an elaborate and wide-ranging opinion affirming dismissal of the writ and stating the court's conclusions as to the issues raised by appellants and other aspects of the juvenile process. In their jurisdictional statement and brief in this Court, appellants do not urge upon us all of the points passed upon by the Supreme Court of Arizona. They urge that we hold the Juvenile Code of Arizona invalid on its face or as applied in this case because, contrary to the Due Process Clause of the Fourteenth Amendment, the juvenile is taken from the custody of his parents and committed to a state institution pursuant to proceedings in which the Juvenile Court has virtually unlimited discretion, and in which the following basic rights are denied:
16
1. Notice of the charges;
17
2. Right to counsel;
18
3. Right to confrontation and cross-examination;
19
4. Privilege against self-incrimination;
20
5. Right to a transcript of the proceedings; and
21
6. Right to appellate review.
22
We shall not consider other issues which were passed upon by the Supreme Court of Arizona. We emphasize that we indicate no opinion as to whether the decision of that court with respect to such other issues does or does not conflict with requirements of the Federal Constitution.7
II.
23
The Supreme Court of Arizona held that due process of law is requisite to the constitutional validity of proceedings in which a court reaches the conclusion that a juvenile has been at fault, has engaged in conduct prohibited by law, or has otherwise misbehaved with the consequence that he is committed to an institution in which his freedom is curtailed. This conclusion is in accord with the decisions of a number of courts under both federal and state constitutions.8
24
This Court has not heretofore decided the precise question. In Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), we considered the requirements for a valid waiver of the 'exclusive' jurisdiction of the Juvenile Court of the District of Columbia so that a juvenile could be tried in the adult criminal court of the District. Although our decision turned upon the language of the statute, we emphasized the necessity that 'the basic requirements of due process and fairness' he satisfied in such proceedings.9 Haley v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948), involved the admissibility, in a state criminal court of general jurisdiction, of a confession by a 15-year-old boy. The Court held that the Fourteenth Amendment applied to prohibit the use of the coerced confession. Mr. Justice Douglas said, 'Neither man nor child can be allowed to stand condemned by methods which flout constitutional requirements of due process of law.'10 To the same effect is Gallegos v. State of Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962). Accordingly, while these cases relate only to restricted aspects of the subject, they unmistakably indicate that, whatever may be their precise impact, neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.
25
We do not in this opinion consider the impact of these constitutional provisions upon the totality of the relationship of the juvenile and the state. We do not even consider the entire process relating to juvenile 'delinquents.' For example, we are not here concerned with the procedures or constitutional rights applicable to the pre-judicial stages of the juvenile process, nor do we direct our attention to the post-adjudicative or dispositional process. See note 48, infra. We consider only the problems presented to us by this case. These relate to the proceedings by which a determination is made as to whether a juvenile is a 'delinquent' as a result of alleged misconduct on his part, with the consequence that he may be committed to a state institution. As to these proceedings, there appears to be little current dissent from the proposition that the Due Process Clause has a role to play.11 The problem is to ascertain the precise impact of the due process requirement upon such proceedings.
26
From the inception of the juvenile court system, wide differences have been tolerated—indeed insisted upon—between the procedural rights accorded to adults and those of juveniles. In practically all jurisdictions, there are rights granted to adults which are withheld from juveniles. In addition to the specific problems involved in the present case, for example, it has been held that the juvenile is not entitled to bail, to indictment by grand jury, to a public trial or to trial by jury.12 It is frequent practice that rules governing the arrest and interrogation of adults by the police are not observed in the case of juveniles.13
27
The history and theory underlying this development are well-known, but a recapitulation is necessary for purposes of this opinion. The Juvenile Court movement began in this country at the end of the last century. From the juvenile court statute adopted in Illinois in 1899, the system has spread to every State in the Union, the District of Columbia, and Puerto Rico.14 The constitutionality of juvenile court laws has been sustained in over 40 jurisdictions against a variety of attacks.15
28
The early reformers were appalled by adult procedures and penalties, and by the fact that children could be given long prison sentences and mixed in jails with hardened criminals. They were profoundly convinced that society's duty to the child could not be confined by the concept of justice alone. They believed that society's role was not to ascertain whether the child was 'guilty' or 'innocent,' but 'What is he, how has he become what he is, and what had best be done in his interest and in the interest of the state to save him from a downward career.'16 The child essentially good, as they saw it—was to be made 'to feel that he is the object of (the state's) care and solicitude,'17 not that he was under arrest or on trial. The rules of criminal procedure were therefore altogether inapplicable. The apparent rigidities, ec hnicalities, and harshness which they observed in both substantive and procedural criminal law were therefore to be discarded. The idea of crime and punishment was to be abandoned. The child was to be 'treated' and 'rehabilitated' and the procedures, from apprehension through institutionalization, were to be 'clinical' rather than punitive.
29
These results were to be achieved, without coming to conceptual and constitutional grief, by insisting that the proceedings were not adversary, but that the state was proceeding as parens patriae.18 The Latin phrase proved to be a great help to those who sought to rationalize the exclusion of juveniles from the constitutional scheme; but its meaning is murky and its historic credentials are of dubious relevance. The phrase was taken from chancery practice, where, however, it was used to describe the power of the state to act in loco parentis for the purpose of protecting the property interests and the person of the child.19 But there is no trace of the doctrine in the history of criminal jurisprudence. At common law, children under seven were considered incapable of possessing criminal intent. Beyond that age, they were subjected to arrest, trial, and in theory to punishment like adult offenders.20 In these old days, the state was not deemed to have authority to accord them fewer procedural rights than adults.
30
The right of the state, as parens patriae, to deny to the child procedural rights available to his elders was elaborated by the assertion that a child, unlike an adult, has a right 'not to liberty but to custody.' He can be made to attorn to his parents, to go to school, etc. If his parents default in effectively performing their custodial functions—that is, if the child is 'delinquent'—the state may intervene. In doing so, it does not deprive the child of any rights, because he has none. It merely provides the 'custody' to which the child is entitled.21 On this basis, proceedings involving juveniles were described as 'civil' not 'criminal' and therefore not subject to the requirements which restrict the state when it seeks to deprive a person of his liberty.22
31
Accordingly, the highest motives and most enlightened impulses led to a peculiar system for juveniles, unknown to our law in any comparable context. The constitutional and theoretical basis for this peculiar system is—to say the least—debatable. And in practice, as we remarked in the Kent case, supra, the results have not been entirely satisfactory.23 Juvenile Court history has again demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure. In 1937, Dean Pound wrote: 'The powers of the Star Chamber were a trifle in comparison with those of our juvenile courts * * *.'24 The absence of substantive standards has not necessarily meant that children receive careful, compassionate, individualized treatment. The absence of procedural rules based upon constitutional principle has not always produced fair, efficient, and effective procedures. Departures from established principles of due process have frequently resulted not in enlightened procedure, but in arbitrariness. The Chairman of the Pennsylvania Council of Juvenile Court Judges has recently observed: 'Unfortunately, loose procedures, high-handed methods and crowded court calendars, either singly or in combination, all too often, have resulted in depriving some juveniles of fundamental rights that have resulted in a denial of due process.'25
32
Failure to observe the fundamental requirements of due process has resulted in instances, which might have been avoided, of unfairness to individuals and inadequate or inaccurate findings of fact and unfortunate prescriptions of remedy. Due process of law is the primary and indispensable foundation of individual freedom. It is the basic and essential term in the social compact which defines the rights of the individual and delimits the powers which the state may exercise.26 As Mr. Justice Frankfurter has said: 'The history of American freedom is, in no small measure, the history of procedure.'27 But, in addition, the procedural rules which have been fashioned from the generality of due process are our best instruments for the distillation and evaluation of essential facts from the conflicting welter of data that life and our adversary methods present. It is these instruments of due process which enhance the possibility that truth will emerge from the confrontation of opposing versions and conflicting data. 'Procedure is to law what 'scientific method' is to science.'28
33
It is claimed that juveniles obtain benefits from the special procedures applicable to them which more than offset the disadvantages of denial of the substance of normal due process. As we shall discuss, the observance of due process standards, intelligently and not ruthlessly administered, will not compel the States to abandon or displace any of the substantive benefits of the juvenile process.29 But it is important, we think, that the claimed benefits of the juvenile process should be candidly appraised. Neither sentiment nor folklore should cause us to shut our eyes, for example, to such startling findings as that reported in an exceptionally reliable study of repeaters or recidivism conducted by the Standford Research Institute for the President's Commission on Crime in the District of Columbia. This Commission's Report states:
34
'In fiscal 1966 approximately 66 percent of the 16- and 17-year-old juveniles referred to the court by the Youth Aid Division had been before the court previously. In 1965, 56 percent of those in the Receiving Home were repeaters. The SRI study revealed that 61 percent of the sample Juvenile Court referrals in 1965 had been previously referred at least once and that 42 percent had been referred at least twice before.' Id., at 773.
35
Certainly, these figures and the high crime rates among juveniles to which we have referred (supra, n. 26), could not lead us to conclude that the absence of constitutional protections reduces crime, or that the juvenile system, functioning free of constitutional inhibitions as it has largely done, is effective to reduce crime or rehabilitate offenders. We do not mean by this to denigrate the juvenile court process or to suggest that there are not aspects of the juvenile system relating to offenders which are valuable. But the features of the juvenile system which its proponents have asserted are of unique benefit will not be impaired by constitutional domestication. For example, the commendable principles relating to the processing and treatment of juveniles separately from adults are in no way involved or affected by the procedural issues under discussion.30 Further, we are told that one of the important benefits of the special juvenile court procedures is that they avoid classifying the juvenile as a 'criminal.' The juvenile offender is now classed as a 'delinquent.' There is, of course, no reason why this should not continue. It is disconcerting, however, that this term has come to involve only slightly less stigma than the term 'criminal' applied to adults.31 It is also emphasized that in practically all jurisdictions, statutes provide that an adjudication of the child as a delinquent shall not operate as a civil disbi lity or disqualify him for civil service appointment.32 There is no reason why the application of due process requirements should interfere with such provisions.
36
Beyond this, it is frequently said that juveniles are protected by the process from disclosure of their deviational behavior. As the Supreme Court of Arizona phrased it in the present case, the summary procedures of Juvenile Courts are sometimes defended by a statement that it is the law's policy 'to hide youthful errors from the full gaze of the public and bury them in the graveyard of the forgotten past.' This claim of secrecy, however, is more rhetoric than reality. Disclosure of court records is discretionary with the judge in most jurisdictions. Statutory restrictions almost invariably apply only to the court records, and even as to those the evidence is that many courts routinely furnish information to the FBI and the military, and on request to government agencies and even to private employers.33 Of more importance are police records. In most States the police keep a complete file of juvenile 'police contacts' and have complete discretion as to disclosure of juvenile records. Police departments receive requests for information from the FBI and other law-enforcement agencies, the Armed Forces, and social service agencies, and most of them generally comply.34 Private employers word their application forms to produce information concerning juvenile arrests and court proceedings, and in some jurisdictions information concerning juvenile police contacts is furnished private employers as well as government agencies.35
37
In any event, there is no reason why, consistently with due process, a State cannot continue if it deems it appropriate, to provide and to improve provision for the confidentiality of records of police contacts and court action relating to juveniles. It is interesting to note, however, that the Arizona Supreme Court used the confidentiality argument as a justification for the type of notice which is here attacked as inadequate for due process purposes. The parents were given merely general notice that their child was charged with 'delinquency.' No facts were specified. The Arizona court held, however, as we shall discuss, that in addition to this general 'notice,' the child and his parents must be advised 'of the facts involved in the case' no later than the initial hearing by the judge. Obviously, this does not 'bury' the word about the child's transgressions. It merely defers the time of disclosure to a point when it is of limited use to the child or his parents in preparing his defense or explanation.
38
Further, it is urged that the juvenile benefits from informal proceedings in the court. The early conception of the Juvenile Court proceeding was one in which a fatherly judge touched the heart and conscience of the erring youth by talking over his problems, by paternal advice and admonition, and in which, in extreme situations, benevolent and wise institutions of the State provided guidance and help 'to save him from downward career.'36 Then, as now, goodwill and compassion were admirably prevalent. But recent studies have, with surprising unanimity, entered sharp dissent as to the validity of this gentle conception. They suggest that the appearance as well as the actuality of fairness, impartiality and orderliness—in short, the essentials of due process—may be a more impressive and more therapeutic attitude so far as the juvenile is concerned. For example, in a recent study, the sociologists Wheeler and Cottrell observe that when the procedural laxness of the 'parens patriae' attitude is followed by stern disciplining, the contrast may have an adverse effect upon the child, who feels that he has been deceived or enticed. They conclude as follows: 'Unless appropriate due process of law is followed, even the juvenile who has violated the law may not feel that he is being fairly treated and may therefore resist the rehabilitative efforts of court personnel.'37 Of course, it is not suggested that juvenile court judges should fail appropriately to take account, in their demeanor and conduct, of the emotional and psychological attitude of the juveniles with whom they are confronted. While due process requirements will, in some instances, introduce a degree of order and regularity to Juvenile Court proceedings to determine delinquency, and in contested cases will introduce some elements of the adversary system, nothing will require that the conception of the kindly juvenile judge be replaced by its opposite,no r do we here rule upon the question whether ordinary due process requirements must be observed with respect to hearings to determine the disposition of the delinquent child.
39
Ultimately, however, we confront the reality of that portion of the Juvenile Court process with which we deal in this case. A boy is charged with misconduct. The boy is committed to an institution where he may be restrained of liberty for years. It is of no constitutional consequence—and of limited practical meaning that the institution to which he is committed is called an Industrial School. The fact of the matter is that, however euphemistic the title, a 'receiving home' or an 'industrial school' for juveniles is an institution of confinement in which the child is incarcerated for a greater or lesser time. His world becomes 'a building with whitewashed walls, regimented routine and institutional hours * * *.'38 Instead of mother and father and sisters and brothers and friends and classmates, his world is peopled by guards, custodians, state employees, and 'delinquents' confined with him for anything from waywardness39 to rape and homicide.
40
In view of this, it would be extraordinary if our Constitution did not require the procedural regularity and the exercise of care implied in the phrase 'due process.' Under our Constitution, the condition of being a boy does not justify a kangaroo court. The traditional ideas of Juvenile Court procedure, indeed, contemplated that time would be available and care would be used to establish precisely what the juvenile did and why he did it—was it a prank of adolescence or a brutal act threatening serious consequences to himself or society unless corrected?40 Under traditional notions, one would assume that in a case like that of Gerald Gault, where the juvenile appears to have a home, a working mother and father, and an older brother, the Juvenile Judge would have made a careful inquiry and judgment as to the possibility that the boy could be disciplined and dealt with at home, despite his previous transgressions.41 Indeed, so far as appears in the record before us, except for some conversation with Gerald about his school work and his 'wanting to go to * * * Grand Canyon with his father,' the points to which the judge directed his attention were little different from those that would be involved in determining any charge of violation of a penal statute.42 The essential difference between Gerald's case and a normal criminal case is that safeguards available to adults were discarded in Gerald's case. The summary procedure as well as the long commitment was possible because Gerald was 15 years of age instead of over 18.
41
If Gerald had been over 18, he would not have been subject to Juvenile Court proceedings.43 For the particular offense immediately involved, the maximum punishment would have been a fine of $5 to $50, or imprisonment in jail for not more than two months. Instead, he was committed to custody for a maximum of six years. If he had been over 18 and had committed an offense to which such a sentence might apply, he would have been entitled to substantial rights under the Constitution of the United States as well as under Arizona's laws and constitution. The United States Constitution would guarantee him rights and protections with respect to arrest, search, and seizure, and pretrial interrogation. It would assure him of specific notice of the charges and adequate time to decide his course of action and to prepare his defense. He would be entitled to clear advice that he could be represented by counsel, and, at least if a felony were involved, the State would be required to provide counsel if his parents were unable to afford it. If the court acted on the basis of his confession, careful procedures would be required to assure its voluntariness. If the case went to trial, confrontation and opportunity for cross-examination would be guaranteed. So wide a gulf between the State's treatment of the adult and of the child requires a bridge sturdier than mere verbiage, and reasons more persuasive than cliche can provide. As Wheeler and Cottrell have put it, 'The rhetoric of the juvenile court movement has developed without any necessarily close correspondence to the realities of court and institutional routines.'44
42
In Kent v. United States, supra, we stated that the Juvenile Court Judge's exercise of the power of the state as parens patriae was not unlimited. We said that 'the admonition to function in a 'parental' relationship is not an invitation to procedural arbitrariness.'45 With respect to the waiver by the Juvenile Court to the adult court of jurisdiction over an offense committed by a youth, we said that 'there is no place in our system of law for reaching a result of such tremendous consequences without ceremony without hearing, without effective assistance of counsel, without a statement of reasons.'46 We announced with respect to such waiver proceedings that while 'We do not mean * * * to indicate that the hearing to be held must conform with all of the requirements of a criminal trial or even of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment.'47 We reiterate this view, here in connection with a juvenile court adjudication of 'delinquency,' as a requirement which is part of the Due Process Clause of the Fourteenth Amendment of our Constitution.48
43
We now turn to the specific issues which are presented to us in the present case.
III.
44
NOTICE OF CHARGES.
45
Appellants allege that the Arizona Juvenile Code is unconstitutional or alternatively that the proceedings before the Juvenile Court were constitutionally defective because of failure to provide adequate notice of the hearings. No notice was given to Gerald's parents when he was taken into custody on Monday, June 8. On that night, when Mrs. Gault went to the Detention Home, she was orally informed that there would be a hearing the next afternoon and was told the reason why Gerald was in custody. The only written notice Gerald's parents received at any time was a note on plain paper from Officer Flagg delivered on Thursday or Friday, June 11 or 12, to the effect that the judge had set Monday, June 15, 'for further Hearings on Gerald's delinquency.'
46
A 'petition' was filed with the court on June 9 by Officer Flagg, reciting only that he was informed and believed that 'said minor is a delinquent minor and that it is necessary that some order be made by the Honorable Court for said minor's welfare.' The applicable Arizona statute provides for a petition to be filed in Juvenile Court, alleging in general terms that the child is 'neglected, dependent or delinquent.' The statute explicitly states that such a general allegation is sufficient, 'without alleging the facts.'49 There is no requirement that the petition be served and it was not served upon, given to, or shown to Gerald or his parents.50
47
The Supreme Court of Arizona rejected appellants' claim that due process was denied because of inadequate notice. It stated that 'Mrs. Gault knew the exact nature of the charge against Gerald from the day he was taken to the detention home.' The court also pointed out that the Gaults appeared at the two hearings 'without objection.' The court held that because 'the policy of the juvenile law is to hide youthful errors from the full gaze of the public and bury them in the graveyard of the forgotten past,' advanc n otice of the specific charges or basis for taking the juvenile into custody and for the hearing is not necessary. It held that the appropriate rule is that 'the infant and his parents or guardian will receive a petition only reciting a conclusion of delinquency.51 But no later than the initial hearing by the judge, they must be advised of the facts involved in the case. If the charges are denied, they must be given a reasonable period of time to prepare.'
48
We cannot agree with the court's conclusion that adequate notice was given in this case. Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must 'set forth the alleged misconduct with particularity.'52 It is obvious, as we have discussed above, that no purpose of shielding the child from the public stigma of knowledge of his having been taken into custody and scheduled for hearing is served by the procedure approved by the court below. The 'initial hearing' in the present case was a hearing on the merits. Notice at that time is not timely; and even if there were a conceivable purpose served by the deferral proposed by the court below, it would have to yield to the requirements that the child and his parents or guardian be notified, in writing, of the specific charge or factual allegations to be considered at the hearing, and that such written notice be given at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation. Due process of law requires notice of the sort we have described—that is, notice which would be deemed constitutionally adequate in a civil or criminal proceeding.53 It does not allow a hearing to be held in which a youth's freedom and his parents' right to his custody are at stake without giving them timely notice, in advance of the hearing, of the specific issues that they must meet. Nor, in the circumstances of this case, can it reasonably be said that the requirement of notice was waived.54
IV.
RIGHT TO COUNSEL
49
Appellants charge that the Juvenile Court proceedings were fatally defective because the court did not advise Gerald or his parents of their right to counsel, and proceeded with the hearing, the adjudication of delinquency and the order of commitment in the absence of counsel for the child and his parents or an express waiver of the right thereto. The Supreme Court of Arizona pointed out that '(t)here is disagreement (among the various jurisdictions) as to whether the court must advise the infant that he has a right to counsel.'55 It noted its own decision in Arizona State Dept. of Public Welfare v. Barlow, 80 Ariz. 249, 296 P.2d 298 (1956), to the effect 'that the parents of an infant in a juvenile proceeding cannot be denied representation by counsel of their choosing.' (Emphasis added.) It referred to a provision of the Juvenile Code which it characterized as requiring 'that the probation officer shall look after the interests of neglected, delinquent and dependent children,' including representing their interests in court.56 The court argued that 'The parent and the probation officer may be relied upon to protect the infant's interests.' Accordingly it rejected the proposition that 'due process requires that an infant have a right to counsel.' It said that juvenile courts have the discretion, but not the duty, to allow such representation; it referred specifically to the situation in which the Juvenile Court discerns conflict between the child and his parents as an instance in which this discretion might be exercised. We do not agree. Probation officers, in the Arizona scheme, are also arresting officers. They initiate proceedings and file petitions which they verify, as here, alleging the delinquency of the child; and they testify, as here, against the child. And here the probation officer was also superintendent of the Detention Home. The probation officer cannot act as counsel for the child. His role in the adjudicatory hearing, by statute and in fact, is as arresting officer and witness against the child. Nor can the judge represent the child. There is no material difference in this respect between adult and juvenile proceedings of the sort here involved. In adult proceedings, this contention has been foreclosed by decisions of this Court.57 A proceeding where the issue is whether the child will be found to be 'delinquent' and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution. The juvenile needs the assistance of counsel to cope with problems of law,58 to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child 'requires the guiding hand of counsel at every step in the proceedings against him.'59 Just as in Kent v. United States, supra, 383 U.S., at 561—562, 86 S.Ct., at 1057—1058, we indicated our agreement with the United States Court of Appeals for the District of Columbia Circuit that the assistance of counsel is essential for purposes of waiver proceedings, so we hold now that it is equally essential for the determination of delinquency, carrying with it the awesome prospect of incarceration in a state institution until the juvenile reaches the age of 21.60
50
During the last decade, court decisions,61 experts,62 and legislatures63 have demonstrated increasing recognition of this view. In at least one-third of the States, statutes now provide for the right of representation by retained counsel in juvenile delinquency proceedings, notice of the right, or assignment of counsel, or a combination of these. In other States, court rules have similar provisions.64
51
The President's Crime Commission has recently recommended that in order to assure 'procedural justice for the child,' it is necessary that 'Counsel * * * be appointed as a matter of course wherever coercive action is a possibility, without requiring any affirmative choice by child or parent.'65 As stated by the authoritative 'Standards
52
z for Juvenile and Family Courts,' published by the Children's Bureau of the United States Department of Health, Education, and Welfare:
53
'As a component part of a fair hearing required by due process guaranteed under the 14th amendment, notice of the right to counsel should be required at all hearings and counsel provided upon request when the family is financially unable to employ counsel.' Standards, p. 57.
54
This statement was 'reviewed' by the National Council of Juvenile Court Judges at its 1965 Convention and they 'found no fault' with it.66 The New York Family Court Act contains the following statement:
55
'This act declares that minors have a right to the assistance of counsel of their own choosing or of law guardians67 in neglect proceedings under article three and in proceedings to determine juvenile delinquency and whether a person is in need of supervision under article seven. This declaration is based on a finding that counsel is often indispensable to a practical realization of due process of law and may be helpful in making reasoned determinations of fact and proper orders of disposition.'68
56
The Act provides that 'At the commencement of any hearing' under the delinquency article of the statute, the juvenile and his parent shall be advised of the juvenile's 'right to be represented by counsel chosen by him or his parent * * * or by a law guardian assigned by the court * * *.'69 The California Act (1961) also requires appointment of counsel.70
57
We conclude that the Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile's freedom is curtailed, the child and his parents must be notified of the child's right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child.
58
At the habeas corpus proceeding, Mrs. Gault testified that she knew that she could have appeared with counsel at the juvenile hearing. This knowledge is not a waiver of the right to counsel which she and her juvenile son had, as we have defined it. They had a right expressly to be advised that they might retain counsel and to be confronted with the need for specific consideration of whether they did or did not choose to waive the right. If they were unable to afford to employ counsel, they were entitled in view of the seriousness of the charge and the potential commitment, to appointed counsel, unless they chose waiver. Mrs. Gault's knowledge that she could employ counsel was not an 'intentional relinquishment or abandonment' of a fully known right.71
V.
59
CONFRONTATION, SELF-INCRIMINATION, CROSS-EXAMINATION
60
Appellants urge that the writ of habeas corpus should have been granted because of the denial of the rights of confrontation and cross-examination in the Juvenile Court hearings, and because the privilege against self-incrimination was not observed. The Juvenile Court Judge testified at the habeas corpus hearing that he had proceeded on the basis of Gerald's admissions at the two hearings. Appellants attack this on the ground that the admissions were obtained in disregard of the privilege against self-incrimination.72 If the confession is disregarded, appellants argue that the delinquency conclusion, since it was fundamentally based on a finding that Gerald had made lewd remarks during the phone call to Mrs. Cook, is fatally defective for failure to accord the rights of confrontation and cross-examination which the Due Process Clause of the Fourteenth Amendment of the Federal Constitution guarantees in state proceedings generally.73
61
Our first question, then, is whether Gerald's admission was improperly obtained and relied on as the basis of decision, in conflict with the Federal Constitution. For this purpose, it is necessary briefly to recall the relevant facts.
62
Mrs. Cook, the complainant, and the recipient of the alleged telephone call, was not called as a witness. Gerald's mother asked the Juvenile Court Judge why Mrs. Cook was not present and the judge replied that 'she didn't have to be present.' So far as appears, Mrs. Cook was spoken to only once, by Officer Flagg, and this was by telephone. The judge did not speak with her on any occasion. Gerald had been questioned by the probation officer after having been taken into custody. The exact circumstances of this questioning do not appear but any admissions Gerald may have made at this time do not appear in the record.74 Gerad was also questioned by the Juvenile Court Judge at each of the two hearings. The judge testified in the habeas corpus proceeding that Gerald admitted making 'some of the lewd statements * * * (but not) any of the more serious lewd statements.' There was conflict and uncertainty among the witnesses at the habeas corpus proceeding—the Juvenile Court Judge, Mr. and Mrs. Gault, and the probation officer—as to what Gerald did or did not admit.
63
We shall assume that Gerald made admissions of the sort described by the Juvenile Court Judge, as quoted avove. Neither Gerald nor his parents were advised that he did not have to testify or make a statement, or that an incriminating statement might result in his commitment as a 'delinquent.'
64
The Arizona Supreme Court rejected appellants' contention that Gerald had a right to be advised that he need not incriminate himself. It said: 'We think the necessary flexibility for individualized treatment will be enhanced by a rule which does not require the judge to advise the infant of a privilege against self-incrimination.'
65
In reviewing this conclusion of Arizona's Supreme Court, we emphasize again that we are here concerned only with a proceeding to determine whether a minor is a 'delinquent' and which may result in commitment to a state institution. Specifically, the question is whether, in such a proceeding, an admission by the juvenile may be used against him in the absence of clear and unequivocal evidence that the admission was made with knowledge that he was not obliged to speak and would not be penalized for remaining silent. In light of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), we must also consider whether, if the privilege against self-incrimination is available, it can effectively be waived unless counsel is present or the right to counsel has been waived.
66
It has long been recognized that the eliciting and use of confessions or admissions require careful scrutiny. Dean Wigmore states:
67
'The ground of distruct of confessions made in certain situations is, in a rough and indefinite way, judicial experience. There has been no careful collection of statistics of untrue confessions, nor has any great number of instances been even loosely reported * * * but enough have been verified to fortify the conclusion, based on ordinary observation of human conduct, that under certain stresses a person, especially one of defective mentality or peculiar temperament, may falsely acknowledge guilt. This possibility arises wherever the innocent person is placed in such a situation that the untrue acknowledgment of guilt is at the time the more promising of two alternatives between which he is obliged to choose; that is, he chooses any risk that may be in falsely acknowledging guilt, in preference to some worse alternative associated with silence.
68
'The principle, then, upon which a confession may be excluded is that it is, under certain conditions, testimonially untrustworthy * * *. (T)he essential feature is that the principle of exclusion is a testimonial one, analogous to the other principles which exclude narrations as untrustworthy * * *.'75
69
This Court has emphasized that admissions and confessions of juveniles require special caution. In Haley v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224, where this Court reversed the conviction of a 15-year-old boy for murder, Mr. Justice Douglas said:
70
'What transpired would make us pause for careful inquiry if a mature man were involved. And when, as here, a mere child—an easy victim of the law—is before us, special care in scrutinizing the record must be used. Age 15 is a tender and difficult age for a boy of any race. He cannot be judged by themo re exacting standards of maturity. That which would leave a man could and unimpressed can overawe and overwhelm a lad in his early teens. This is the period of great instability which the crisis of adolescence produces. A 15-year-old lad, questioned through the dead of night by relays of police, is a ready victim of the inquisition. Mature men possibly might stand the ordeal from midnight to 5 a.m. But we cannot believe that a lad of tender years is a match for the police in such a contest. He needs counsel and support if he is not to become the victim first of fear, then of panic. He needs someone on whom to lean lest the overpowering presence of the law, as he knows it, crush him. No friend stood at the side of this 15-year-old boy as the police, working in relays, questioned him hour after hour, from midnight until dawn. No lawyer stood guard to make sure that the police went so far and no farther, to see to it that they stopped short of the point where he became the victim of coercion. No counsel or friend was called during the critical hours of questioning.'76
71
In Haley, as we have discussed, the boy was convicted in an adult court, and not a juvenile court. In notable decisions, the New York Court of Appeals and the Supreme Court of New Jersey have recently considered decisions of Juvenile Courts in which boys have been adjudged 'delinquent' on the basis of confessions obtained in circumstances comparable to those in Haley. In both instances, the State contended before its highest tribunal that constitutional requirements governing inculpatory statements applicable in adult courts do not apply to juvenile proceedings. In each case, the State's contention was rejected, and the juvenile court's determination of delinquency was set aside on the grounds of inadmissibility of the confession. In Matters of W. and S., 19 N.Y.2d 55, 277 N.Y.S.2d 675, 224 N.E.2d 102 (1966) (opinion by Keating, J.), and In Interests of Carlo and Stasilowicz, 48 N.J. 224, 225 A.2d 110 (1966) (opinion by Proctor, J.).
72
The privilege against self-incrimination is, of course, related to the question of the safeguards necessary to assure that admissions or confessions are reasonably trustworthy, that they are not the mere fruits of fear or coercion, but are reliable expressions of the truth. The roots of the privilege are, however, far deeper. They tap the basic stream of religious and political principle because the privilege reflects the limits of the individual's attornment to the state and—in a philosophical sense insists upon the equality of the individual and the state.77 In other words, the privilege has a broader and deeper thrust than the rule which prevents the use of confessions which are the product of coercion because coercion is thought to carry with it the danger of unreliability. One of its purposes is to prevent the state, whether by force or by psychological domination, from overcoming the mind and will of the person under investigation and depriving him of the freedom to decide whether to assist the state in securing his conviction.78
73
It would indeed be surprising if the privilege against self-incrimination were available to hardened criminals but not to children. The language of the Fifth Amendment, applicable to the States by operation of the Fourteenth Amendment, is unequivocal and without exception. And the scope of the privilege is comprehensive. As Mr. Justice White, concrr ing, stated in Murphy v. Waterfront Commission, 378 U.S. 52, 94, 84 S.Ct. 1594, 1611, 12 L.Ed.2d 678 (1964):
74
'The privilege can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory. * * * it protects any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used.'79 (Emphasis added.)
75
With respect to juveniles, both common observation and expert opinion emphasize that the 'distrust of confessions made in certain situations' to which Dean Wigmore referred in the passage quoted supra, at 44-45, is imperative in the case of children from an early age through adolescence. In New York, for example, the recently enacted Family Court Act provides that the juvenile and his parents must be advised at the start of the hearing of his right to remain silent.80 The New York statute also provides that the police must attempt to communicate with the juvenile's parents before questioning him,81 and that absent 'special circumstances' a confession may not be obtained from a child prior to notifying his parents or relatives and releasing the child either to them or to the Family Court.82 In In Matters of W. and S., referred to above, the New York Court of Appeals held that the privilege against self-incrimination applies in juvenile delinquency cases and requires the exclusion of involuntary confessions, and that People v. Lewis, 260 N.Y. 171, 183 N.E. 353, 86 A.L.R. 1001 (1932), holding the contrary, had been specifically overruled by statute.
76
The authoritative 'Standards for Juvenile and Family Courts' concludes that, 'Whether or not transfer to the criminal court is a possibility, certain procedures should always be followed. Before being interviewed (by the police), the child and his parents should be informed of his right to have legal counsel present and to refuse to answer questions or be fingerprinted83 if he should so decide.'84
77
Against the application to juveniles of the right to silence, it is argued that juvenile proceedings are 'civil' and not 'criminal,' and therefore the privilege should not apply. It is true that the statement of the privilege in the Fifth Amendment, which is applicable to the States by reason of the Fourteenth Amendment, is that no person 'shall be compelled in any criminal case to be a witness against himself.' However, it is also clear that the availability of the privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites. The privilege may, for example, be claimed in a civil or administrative proceeding, if the statement is or may be inculpatory.85
78
It would be entirely unrealistic to carve out of the Fifth Amendment all statements by juveniles on the ground that these cannot lead to 'criminal' involvement. In the first place, juvenile proceedings to determine'd elinquency,' which may lead to commitment to a state institution, must be regarded as 'criminal' for purposes of the privilege against self-incrimination. To hold otherwise would be to disregard substance because of the feeble enticement of the 'civil' label-of-convenience which has been attached to juvenile proceedings. Indeed, in over half of the States, there is not even assurance that the juvenile will be kept in separate institutions, apart from adult 'criminals.' In those States juveniles may be placed in or transferred to adult penal institutions86 after having been found 'delinquent' by a juvenile court. For this purpose, at least, commitment is a deprivation of liberty. It is incarceration against one's will, whether it is called 'criminal' or 'civil.' And our Constitution guarantees that no person shall be 'compelled' to be a witness against himself when he is threatened with deprivation of his liberty—a command which this Court has broadly applied and generously implemented in accordance with the teaching of the history of the privilege and its great office in mankind's battle for freedom.87
79
In addition, apart from the equivalence for this purpose of exposure to commitment as a juvenile delinquent and exposure to imprisonment as an adult offender, the fact of the matter is that there is little or no assurance in Arizona, as in most if not all of the States, that a juvenile apprehended and interrogated by the police or even by the Juvenile Court itself will remain outside of the reach of adult courts as a consequence of the offense for which he has been taken into custody. In Arizona, as in other States, provision is made for Juvenile Courts to relinquish or waive jurisdiction to the ordinary criminal courts.88 In the present case, when Gerald Gault was interrogated concerning violation of a section of the Arizona Criminal Code, it could not be certain that the Juvenile Court Judge would decide to 'suspend' criminal prosecution in court for adults by proceeding to an adjudication in Juvenile Court.89
80
It is also urged, as the Supreme Court of Arizona here asserted, that the juvenile and presumably his parents should not be advised of the juvenile's right to silence because confession is good for the child as the commencement of the assumed therapy of the juvenile court process, and he should be encouraged to assume an attitude of trust and confidence toward the officials of the juvenile process. This proposition has been subjected to widespread challenge on the basis of current reappraisals of the rhetoric and realities of the handling of juvenile offenders.
81
In fact, evidence is accumulating that confessions by juveniles do not aid in 'individualized treatment,' as the court below put it, and that compelling the child to answer questions, without warning or advice as to his right to remainsi lent, does not serve this or any other good purpose. In light of the observations of Wheeler and Cottrell,90 and others, it seems probable that where children are induced to confess by 'paternal' urgings on the part of officials and the confession is then followed by disciplinary action, the child's reaction is likely to be hostile and adverse—the child may well feel that he has been led or tricked into confession and that despite his confession, he is being punished.91
82
Further, authoritative opinion has cast formidable doubt upon the reliability and trustworthiness of 'confessions' by children. This Court's observations in Haley v. State of Ohio are set forth above. The recent decision of the New York Court of Appeals referred to above, In Matters of W. and S. deals with a dramatic and, it is to be hoped, extreme example. Two 12-year-old Negro boys were taken into custody for the brutal assault and rape of two aged domestics, one of whom died as the result of the attack. One of the boys was schizophrenic and had been locked in the security ward of a mental institution at the time of the attacks. By a process that may best be described as bizarre, his confession was obtained by the police. A psychiatrist testified that the boy would admit 'whatever he thought was expected so that he could get out of the immediate situation.' The other 12-year-old also 'confessed.' Both confessions were in specific detail, albeit they contained various inconsistencies. The Court of Appeals, in an opinion by Keating, J., concluded that the confessions were products of the will of the police instead of the boys. The confessions were therefore held involuntary and the order of the Appellate Division affirming the order of the Family Court adjudging the defendants to be juvenile delinquents was reversed.
83
A similar and equally instructive case has recently been decided by the Supreme Court of New Jersey. In Interests of Carlo and Stasilowicz, supra. The body of a 10-year-old girl was found. She had been strangled. Neighborhood boys who knew the girl were questioned. The two appellants, aged 13 and 15, confessed to the police, with vivid detail and some inconsistencies. At the Juvenile Court hearing, both denied any complicity in the killing. They testified that their confessions were the product of fear and fatigue due to extensive police grilling. The Juvenile Court Judge found that the confessions were voluntary and admissible. On appeal, in an extensive opinion by Proctor, J., the Supreme Court of New Jersey reversed. It rejected the State's argument that the constitutional safeguard of voluntariness governing the use of confessions does not apply in proceedings before the Juvenile Court. It pointed out that under New Jersey court rules, juveniles under the age of 16 accused of committing a homicide are tried in a proceeding which 'has all of the appurtenances of a criminal trial,' including participation by the county prosecutor, and requirements that the juvenile be provided with counsel, that a stenographic record be made, etc. It also pointed out that under New Jersey law, the confinement of the boys after reaching age 21 could be extended until they had served the maximum sentence which could have been imposed on an adult for such a homicide, here found to be second-degree murder carrying up to 30 years' imprisonment.92 The court concluded that the confessions were involuntary, stressing that the boys, contrary to statute, were placed in the police station and there interrogated;93 that the parents of both boys were not allowed to see them while they were being interrogated;94 that inconsistencies appeared among the various statements of the boys and with the objective evidence of the crime; and that there were protracted periods of questioning. The court notedth e State's contention that both boys were advised of their constitutional rights before they made their statements, but it held that this should not be given 'significant weight in our determination of voluntariness.'95 Accordingly, the judgment of the Juvenile Court was reversed.
84
In a recent case before the Juvenile Court of the District of Columbia, Judge Ketcham rejected the proffer of evidence as to oral statements made at police headquarters by four juveniles who had been taken into custody for alleged involvement in an assault and attempted robbery. In the Matter of Four Youths, Nos. 28—776 J, 28—778—J, 28—783—J, 28—859—J, Juvenile Court of the District of Columbia, April 7, 1961. The court explicitly stated that it did not rest its decision on a showing that the statements were involuntary, but because they were untrustworthy. Judge Ketcham said:
85
'Simply stated, the Court's decision in this case rests upon the considered opinion—after nearly four busy years on the Juvenile Court bench during which the testimony of thousands of such juveniles has been heard—that the statements of adolescents under 18 years of age who are arrested and charged with violations of law are frequently untrustworthy and often distort the truth.'
86
We conclude that the constitutional privilege against self-incrimination is applicable in the case of juveniles as it is with respect to adults. We appreciate that special problems may arise with respect to waiver of the privilege by or on behalf of children, and that there may well be some differences in technique but not in principle—depending upon the age of the child and the presence and competence of parents. The participation of counsel will, of course, assist the police, Juvenile Courts and appellate tribunals in administering the privilege. If counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.96
87
The 'confession' of Gerald Gault was first obtained by Officer Flagg, out of the presence of Gerald's parents, without counsel and without advising him of his right to silence, as far as appears. The judgment of the Juvenile Court was stated by the judge to be based on Gerald's admissions in court. Neither 'admission' was reduced to writing, and, to say the least, the process by which the 'admissions,' were obtained and received must be characterized as lacking the certainty and order which are required of proceedings of such formidable consequences.97 Apart from the 'admission,' there was nothing upon which a judgment or finding might be based. There was no sworn testimony. Mrs. Cook, the complainant, was not present. The Arizona Supreme Court held that 'sworn testimony must be required of all witnesses including police officers, probation officers and others who are part of or officially related to the juvenile court structure.' We hold that this is not enough. No reason is suggested or appears for a different rule in respect of sworn testimony in juvenile courts than in adult tribunals. Absent a valid confession adequate to support the determination of the Juvenile Court, confrontation and sworn testimony by witnesses available for cross-examination were essential for a finding of 'delinquency' and an order committing Gerald to a state institution for a maximum of six years.
88
The recommendations in the Children's Bureau's 'Standards for Juvenile and Family Courts' are in general accord with our conclusions. They state that testimony should be under oath and that only competent, material and relevant evidence under rules applicable to civil cases should be admitted in evidence.98 The New York Family Court Act contains a similar provision.99
89
As we said in Kent v. United States, 383 U.S. 541, 554, 86 S.Ct. 1045, 1053, 16 L.Ed.2d 84 (1966), with respect to waiver proceedings, 'there is no place in our system of law of reaching a result of such tremendous consequences without ceremony * * *.' We now hold that, absent a valid confession, a determination of delinquency and an order of commitment to a state institution cannot be sustained in the absence of sworn testimony subjected to the opportunity for cross-examination in accordance with our law and constitutional requirements.
VI.
90
APPELLATE REVIEW AND TRANSCRIPT OF PROCEEDINGS.
91
Appellants ure that the Arizona statute is unconstitutional under the Due Process Clause because, as construed by its Supreme Court, 'there is no right of appeal from a juvenile court order * * *.' The court held that there is no right to a transcript because there is no right to appeal and because the proceedings are confidential and any record must be destroyed after a prescribed period of time.100 Whether a transcript or other recording is made, it held, is a matter for the discretion of the juvenile court.
92
This Court has not held that a State is required by the Federal Constitution 'to provide appellate courts or a right to appellate review at all.'101 In view of the fact that we must reverse the Supreme Court of Arizona's affirmance of the dismissal of the writ of habeas corpus for other reasons, we need not rule on this question in the present case or upon the failure to provide a transcript or recording of the hearings—or, indeed, the failure of the Juvenile Judge to state the grounds for his conclusion. Cf. Kent v. United States, supra, 383 U.S., at 561, 86 S.Ct., at 1057, where we said, in the context of a decision of the juvenile court waiving jurisdiction to the adult court, which by local law, was permissible: '* * * it is incumbent upon the Juvenile Court to accompany its waiver order with a statement of the reasons or considerations therefor.' As the present case illustrates, the consequences of failure to provide an appeal, to record the proceedings, or to make findings or state the grounds for the juvenile court's conclusion may be to throw a burden upon the machinery for habeas corpus, to saddle the reviewing process with the burden of attempting to reconstruct a record, and to impose upon the Juvenile Judge the unseemly duty of testifying under cross-examination as to the events that transpired in the hearings before him.102
93
For the reasons stated, the judgment of the Supreme Court of Arizona is reversed and the cause remanded for further proceedings not inconsistent with this opinion. It is so ordered.
94
Judgment reversed and cause remanded with directions.
95
Mr. Justice BLACK, concurring.
96
The juvenile court laws of Arizona and other States, as the Court points out, are the result of plans promoted by humane and forward-looking people to provide a system of courts, procedures, and sanctions deemed to be less harmful and more lenient to children than to adults. For this reason such state laws generally provide less formal and less public methods for the trial of children. In line with this policy, both courts and legislators have shrunk back from labeling these laws as 'criminal' and have preferred to call them 'civil.' This, in part, was to prevent the full application to juvenile court cases of the Bill of Rights safeguards, including notice as provided in the Sixth Amendment,1 the right to counsel guaranteed by the Sixth,2 the right against selfincrimination guaranteed by the Fifth,3 and the right to confrontation guarantee b y the Sixth.4 The Court here holds, however, that these four Bill of Rights safeguards apply to protect a juvenile accused in a juvenile court on a charge under which he can be imprisoned for a term of years. This holding strikes a well-nigh fatal blow to much that is unique about the juvenile courts in the Nation. For this reason, there is much to be said for the position of my Brother STEWART that we should not pass on all these issues until they are more squarely presented. But since the majority of the Court chooses to decide all of these questions, I must either do the same or leave my views unexpressed on the important issues determined. In these circumstances, I feel impelled to express my views.
97
The juvenile court planners envisaged a system that would practically immunize juveniles from 'punishment' for 'crimes' in an effort to save them from youthful indiscretions and stigmas due to criminal charges or convictions. I agree with the Court, however, that this exalted ideal has failed of achievement since the beginning of the system. Indeed, the state laws from the first one on contained provisions, written in emphatic terms, for arresting and charging juveniles with violations of state criminal laws, as well as for taking juveniles by force of law away from their parents and turning them over to different individuals or groups or for confinement within some state school or institution for a number of years. The latter occurred in this case. Young Gault was arrested and detained on a charge of violating an Arizona penal law by using vile and offensive language to a lady on the telephone. If an adult, he could only have been fined or imprisoned for two months for his conduct. As a juvenile, however, he was put through a more or less secret, informal hearing by the court, after which he was ordered, or more realistically, 'sentenced,' to confinement in Arizona's Industrial School until he reaches 21 years of age. Thus, in a juvenile system designed to lighten or avoid punishment for criminality, he was ordered by the State to six years' confinement in what is in all but name a penitentiary or jail.
98
Where a person, infant or adult, can be seized by the State, charged, and convicted for violating a state criminal law, and then ordered by the State to be confined for six years, I think the Constitution requires that he be tried in accordance with the guarantees of all the provisions of the Bill of Rights made applicable to the States by the Fourteenth Amendment. Undoubtedly this would be true of an adult defendant, and it would be a plain denial of equal protection of the laws—an invidious discrimination to hold that others subject to heavier punishments could, because they are children, be denied these same constitutional safeguards. I consequently agree with the Court that the Arizona law as applied here denied to the parents and their son the right of notice, right to counsel, right against self-incrimination, and right to confront the witnesses against young Gault. Appellants are entitled to these rights, not because 'fairness, impartiality and orderliness—in short, the essentials of due process'—require them and not because they are 'the procedural rules which have been fashioned from the generality of due process,' but because they are specifically and unequivocally granted by provisions of the Fifth and Sixth Amendments which the Fourteenth Amendment makes applicable to the States.
99
A few words should be added because of the opinion of my Brother HARLAN who rests his concurrence and dissent on the Due Process Clause alone. He reads that clause alone as allowing this Court 'to determine what forms of procedural protection are necessary to guarantee the fundamental fairness of juvenile proceedings' 'in a fashion consistent with the 'traditions and conscience of our people." Cf. Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183. He believes that the Due Process Clause gives this Court the power, upon weighing a 'compelling public interest,' to impose on the States only those specific constitutional rights which the Court deems 'imperative' and 'necessary' to comport with the Court's notions of 'fundamental fairness.'
100
I cannot subscribe to any such interpretation of the Due Process Clause. Nothing in its words or its history permits it, and 'fair distillations of relevant judicial history' are no substitute for the words and history of the clause itself. The phrase 'due process of law' has through the years evolved as the successor in purpose and meaning to the words 'law of the land' in Magna Charta which more plainly intended to call for a trial according to the existing law of the land in effect at the time an alleged offense had been committed. That provision in Magna Charta was designed to prevent defendants from being tried according to criminal laws or proclamations specifically promulgated to fit particular cases or to attach new consequences to old conduct. Nothing done since Magna Charta can be pointed to as intimating that the Due Process Clause gives courts power to fashion laws in order to meet new conditions, to fit the 'decencies' of changed conditions, or to keep their consciences from being shocked by legislation, state or federal.
101
And, of course, the existence of such awesome judicial power cannot be buttressed or created by relying on the word 'procedural.' Whether labeled as 'procedural' or 'substantive,' the Bill of Rights safeguards, far from being mere 'tools with which' other unspecified 'rights could be fully vindicated,' are the very vitals of a sound constitutional legal system designed to protect and safeguard the most cherished liberties of a free people. These safeguards were written into our Constitution not by judges but by Constitution makers. Freedom in this Nation will be far less secure the very moment that it is decided that judges can determine which of these safeguards 'should' or 'should not be imposed' according to their notions of what constitutional provisions are consistent with the 'traditions and conscience of our people.' Judges with such power, even though they profess to 'proceed with restraint,' will be above the Constitution, with power to write it, not merely to interpret it, which I believe to be the only power constitutionally committed to judges.
102
There is one ominous sentence, if not more, in my Brother HARLAN's opinion which bodes ill, in my judgment, both for legislative programs and constitutional commands. Speaking of procedural safeguards in the Bill of Rights, he says:
103
'These factors in combination suggest that legislatures may properly expect only a cautious deference for their procedural judgments, but that, conversely, courts must exercise their special responsibility for procedural guarantees with care to permit ample scope for achieving the purposes of legislative programs. * * * (T)he court should necessarily proceed with restraint.'
104
It is to be noted here that this case concerns Bill of Rights Amendments; that the 'procedure' power my Brother HARLAN claims for the Court here relates solely to Bill of Rights safeguards; and that he is here claiming for the Court a supreme power to fashion new Bill of Rights safeguards according to the Court's notions of what fits tradition and conscience. I do not believe that the Constitutin vests any such power in judges, either in the Due Process Clause or anywhere else. Consequently, I do not vote to invalidate this Arizona law on the ground that it is 'unfair' but solely on the ground that it violates the Fifth and Sixth Amendments made obligatory on the States by the Fourteenth Amendment. Cf. Pointer v. State of Texas, 380 U.S. 400, 412, 85 S.Ct. 1065, 1072, 13 L.Ed.2d 923 (Goldberg, J., concurring). It is enough for me that the Arizona law as here applied collides head-on with the Fifth and Sixth Amendments in the four respects mentioned. The only relevance to me of the Due Process Clause is that it would, of course, violate due process or the 'law of the land' to enforce a law that collides with the Bill of Rights.
105
Mr. Justice WHITE, concurring.
106
I join the Court's opinion except for Part V. I also agree that the privilege against compelled self-incrimination applies at the adjudicatory stage of juvenile court proceedings. I do not, however, find an adequate basis in the record for determination whether that privilege was violated in this case. The Fifth Amendment protects a person from being 'compelled' in any criminal proceeding to be a witness against himself. Compulsion is essential to a violation. It may be that when a judge, armed with the authority he has or which people think he has, asks questions of a party or a witness in an adjudicatory hearing, that person, especially if a minor, would feel compelled to answer, absent a warning to the contrary or similar information from some other source. The difficulty is that the record made at the habeas corpus hearing, which is the only information we have concerning the proceedings in the juvenile court, does not directly inform us whether Gerald Gault or his parents were told of Gerald's right to remain silent; nor does it reveal whether the parties were aware of the privilege from some other source, just as they were already aware that they had the right to have the help of counsel and to have witnesses on their behalf. The petition for habeas corpus did not raise the Fifth Amendment issue nor did any of the witnesses focus on it.
107
I have previously recorded my views with respect to what I have deemed unsound applications of the Fifth Amendment. See, for example, Miranda v. State of Arizona, 384 U.S. 436, 526, 86 S.Ct. 1602, 1654, 16 L.Ed.2d 694, and Malloy v. Hogan, 378 U.S. 1, 33, 84 S.Ct. 1489, 1506, 12 L.Ed.2d 653, dissenting opinions. These views, of course, have not prevailed. But I do hope that the Court will proceed with some care in extending the privilege, with all its vigor, to proceedings in juvenile court, particularly the nonadjudicatory stages of those proceedings.
108
In any event, I would not reach the Fifth Amendment issue here. I think the Court is clearly ill-advised to review this case on the basis of Miranda v. State of Arizona, since the adjudication of delinquency took place in 1964, long before the Miranda decision. See Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. Under these circumstances, this case is a poor vehicle for resolving a difficult problem. Moreover, no prejudice to appellants is at stake in this regard. The judgment below must be reversed on other grounds and in the event further proceedings are to be had, Gerald Gault will have counsel available to advise him.
109
For somewhat similar reasons, I would not reach the questions of confrontation and cross-examination which are also dealt with in Part V of the opinion.
110
Mr. Justice HARLAN, concurring in part and dissenting in part.
111
Each of the 50 States has created a system of juvenile or family courts, in which distinctive rules are employed and special consequences imposed. The jurisdiction of these courts commonly extends both to cases which the States have withdrawn from the ordinary processes of criminal justice, and to cases which involve acts that, if performed by an adult, would not be penalized as criminal. Such courts re denominated civil, not criminal, and are characteristically said not to administer criminal penalties. One consequence of these systems, at least as Arizona construes its own, is that certain of the rights guaranteed to criminal defendants by the Constitution are withheld from juveniles. This case brings before this Court for the first time the question of what limitations the the Constitution places upon the operation of such tribunals.1 For reasons which follow, I have concluded that the Court has gone too far in some respects, and fallen short in others, in assessing the procedural requirements demanded by the Fourteenth Amendment.
I.
112
I must first acknowledge that I am unable to determine with any certainty by what standards the Court decides that Arizona's juvenile courts do not satisfy the obligations of due process. The Court's premise, itself the product of reasoning which is not described, is that the 'constitutional and theoretical basis' of state systems of juvenile and family courts is 'debatable'; it buttresses these doubts by marshaling a body of opinion which suggests that the accomplishments of these courts have often fallen short of expectations.2 The Court does not indicate at what points or for what purposes such views, held either by it or by other observers, might be pertinent to the present issues. Its failure to provide any discernible standard for the measurement of due process in relation to juvenile proceedings unfortunately might be understood to mean that the Court is concerned principally with the wisdom of having such courts at all.
113
If this is the source of the Court's dissatisfaction, I cannot share it. I should have supposed that the constitutionality of juvenile courts was beyond proper question under the standards now employed to assess the substantive validity of state legislation under the Due Process Clause of the Fourteenth Amendment. It can scarcely be doubted that it is within the State's competence to adopt measures reasonably calculated to meet more effectively the persistent problems of juvenile delinquency; as the opinion for the Court makes abundantly plain, these are among the most vexing and ominous of the concerns which now face communities throughout the country.
114
The proper issue here is, however, not whether the State may constitutionally treat juvenile offenders through a system of specialized courts, but whether the proceedings in Arizona's juvenile courts include procedural guarantees which satisfy the requirements of the Fourteenth Amendment. Among the first premises of our constitutional system is the obligation to conduct any proceeding in which an individual may be deprived of liberty or property in a fashion consistent with the 'traditions and conscience of our people.' Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674. The importance of these procedural guarantees is doubly intensified here. First, many of the problems with which Arizona is concerned are among those traditionally confined to the processes of criminal justice; their disposition necessarily affects in the most direct and substantial manner the liberty of individual citizens. Quite obviously, systems of specialized penal justice might permit erosion, or even evasion, of the limitations placed by the Cns titution upon state criminal proceedings. Second, we must recognize that the character and consequences of many juvenile court proceedings have in fact closely resembled those of ordinary criminal trials. Nothing before us suggests that juvenile courts were intended as a device to escape constitutional constraints, but I entirely agree with the Court that we are nonetheless obliged to examine with circumspection the procedural guarantees the State has provided.
115
The central issue here, and the principal one upon which I am divided from the Court, is the method by which the procedural requirements of due process should be measured. It must at the outset be emphasized that the protections necessary here cannot be determined by resort to any classification of juvenile proceedings either as criminal or as civil, whether made by the State or by this Court. Both formulae are simply too imprecise to permit reasoned analysis of these difficult constitutional issues. The Court should instead measure the requirements of due process by reference both to the problems which confront the State and to the actual character of the procedural system which the State has created. The Court has for such purposes chiefly examined three connected sources: first, the 'settled usages and modes of proceeding,' Den ex dem. Murray v. Hoboken Land & Improvement Co., 18 How. 272, 277, 15 L.Ed. 372; second, the 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions'. Hebert v. State of Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270 and third, the character and requirements of the circumstances presented in each situation. FCC v. WJR, The Goodwill Station, 337 U.S. 265, 277, 69 S.Ct. 1097, 1104, 93 L.Ed. 1353; Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834. See, further, my dissenting opinion in Poe v. Ullman, 367 U.S. 497, 522, 81 S.Ct. 1752, 1765, 6 L.Ed.2d 989, and compare my opinion concurring in the result in Pointer v. State of Texas, 380 U.S. 400, 408, 85 S.Ct. 1065, 1070. Each of these factors is relevant to the issues here, but it is the last which demands particular examination.
116
The Court has repeatedly emphasized that determination of the constitutionally required procedural safeguards in any situation requires recognition both of the 'interests affected' and of the 'circumstances involved.' FCC v. WJR, The Goodwill Station, supra, 337 U.S. at 277, 69 S.Ct. at 1104. In particular, a 'compelling public interest' must, under our cases, be taken fully into account in assessing the validity under the due process clauses of state or federal legislation and its application. See, e.g., Yakus v. United States, supra, 321 U.S. at 442, 64 S.Ct. at 675; Bowles v. Willingham, 321 U.S. 503, 520, 64 S.Ct. 641, 650, 88 L.Ed. 892; Miller v. Schoene, 276 U.S. 272, 279, 48 S.Ct. 246, 247, 72 L.Ed. 568. Such interests would never warrant arbitrariness or the diminution of any specifically assured constitutional right, Home Bldg. & Loan Assn. v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 235, 78 L.Ed. 413, but they are an essential element of the context through which the legislation and proceedings under it must be read and evaluated.
117
No more evidence of the importance of the public interests at stake here is required than that furnished by the opinion of the Court; it indicates that 'some 601,000 children under 18, or 2% of all children between 10 and 17, came before juvenile courts' in 1965, and that 'about one-fifth of all arrests for serious crimes' in 1965 were of juveniles. The Court adds that the rate of juvenile crime is steadily rising. All this, as the Court suggests, indicates the importance of these due process issues, but it mirrors no less vividly that state authorities are confronted by formidable and immediate problems involving the most fundamental social values. The state legislatures have determined that the most hopeful solution for these problems is to be found in speciaiz ed courts, organized under their own rules and imposing distinctive consequences. The terms and limitations of these systems are not identical, nor are the procedural arrangements which they include, but the States are uniform in their insistence that the ordinary processes of criminal justice are inappropriate, and that relatively informal proceedings, dedicated to premises and purposes only imperfectly reflected in the criminal law, are instead necessary.
118
It is well settled that the Court must give the widest deference to legislative judgments that concern the character and urgency of the problems with which the State is confronted. Legislatures are, as this Court has often acknowledged, the 'main guardian' of the public interest, and, within their constitutional competence, their understanding of that interest must be accepted as 'wellnigh' conclusive. Berman v. Parker, 348 U.S. 26, 32, 75 S.Ct. 98, 102, 99 L.Ed. 27. This principle does not, however, reach all the questions essential to the resolution of this case. The legislative judgments at issue here embrace assessments of the necessity and wisdom of procedural guarantees; these are questions which the Constitution has entrusted at least in part to courts, and upon which courts have been understood to possess particular competence. The fundamental issue here is, therefore, in what measure and fashion the Court must defer to legislative determinations which encompass constitutional issues of procedural protection.
119
It suffices for present purposes to summarize the factors which I believe to be pertinent. It must first be emphasized that the deference given to legislators upon substantive issues must realistically extend in part to ancillary procedural questions. Procedure at once reflects and creates substantive rights, and every effort of courts since the beginnings of the common law to separate the two has proved essentially futile. The distinction between them is particularly inadequate here, where the legislature's substantive preferences directly and unavoidably require judgments about procedural issues. The procedural framework is here a principal element of the substantive legislative system; meaningful deference to the latter must include a portion of deference to the former. The substantive-procedural dichotomy is, nonetheless, an indispensable tool of analysis, for it stems from fundamental limitations upon judicial authority under the Constitution. Its premise is ultimately that courts may not substitute for the judgments of legislators their own understanding of the public welfare, but must instead concern themselves with the validity under the Constitution of the methods which the legislature has selected. See e.g., McLean v. State of Arkansas, 211 U.S. 539, 547, 29 S.Ct. 206, 208, 53 L.Ed. 315; Olsen v. State of Nebraska, 313 U.S. 236, 246—247, 61 S.Ct. 862, 865, 85 L.Ed. 1305. The Constitution has in this manner created for courts and legislators areas of primary responsibility which are essentially congruent to their areas of special competence. Courts are thus obliged both by constitutional command and by their distinctive functions to bear particular responsibility for the measurement of procedural due process. These factors in combination suggest that legislatures may properly expect only a cautious deference for their procedural judgments, but that, conversely, courts must exercise their special responsibility for procedural guarantees with care to permit ample scope for achieving the purposes of legislative programs. Plainly, courts can exercise such care only if they have in each case first studied thoroughly the objectives and implementation of the program at stake; if, upon completion of those studies, the effect of extensive procedural restrictions upon valid legislative purposes cannot be assessed with reasonable certainty, the court should necessarily proceed with restraint.
120
The foregoing considerations, which I believe to be fair distillations of relevant judicial history, suggest three criteria by which the procedural requirements of due process should be measured here: first, no more restrictions should be imposed than are imperative to assure the proceedings' fundamental fairness; second, the restrictions which are imposed should be those which preserve, so far as possible, the essential elements of the State's purpose; and finally, restrictions should be chosen which will later permit the orderly selection of any additional protections which may ultimately prove necessary. In this way, the Court may guarantee the fundamental fairness of the proceeding, and yet permit the State to continue development of an effective response to the problems of juvenile crime.
II.
121
Measured by these criteria, only three procedural requirements should, in my opinion, now be deemed required of state juvenile courts by the Due Process Clause of the Fourteenth Amendment: first, timely notice must be provided to parents and children of the nature and terms of any juvenile court proceeding in which a determination affecting their rights or interests may be made; second, unequivocal and timely notice must be given that counsel may appear in any such proceeding in behalf of the child and its parents, and that in cases in which the child may be confined in an institution, counsel may, in circumstances of indigency, be appointed for them; and third, the court must maintain a written record, or its equivalent, adequate to permit effective review on appeal or in collateral proceedings. These requirements would guarantee to juveniles the tools with which their rights could be fully vindicated, and yet permit the States to pursue without unnecessary hindrance the purposes which they believe imperative in this field. Further, their imposition now would later permit more intelligent assessment of the necessity under the Fourteenth Amendment of additional requirements, by creating suitable records from which the character and deficiencies of juvenile proceedings could be accurately judged. I turn to consider each of these three requirements.
122
The Court has consistently made plain that adequate and timely notice is the fulcrum of due process, whatever the purposes of the proceeding. See, e.g., Roller v. Holly, 176 U.S. 398, 409, 20 S.Ct. 410, 413, 44 L.Ed. 520; Coe v. Armour Fertilizer Works, 237 U.S. 413, 424, 35 S.Ct. 625, 628, 59 L.Ed. 1027. Notice is ordinarily the prerequisite to effective assertion of any constitutional or other rights; without it, vindication of those rights must be essentially fortuitous. So fundamental a protection can neither be spared here nor left to the 'favor or grace' of state authorities. Central of Georgia Ry. v. Wright, 207 U.S. 127, 138, 28 S.Ct. 47, 51, 52 L.Ed. 134; Coe v. Armour Fertilizer Works, supra, 237 U.S. at 425, 35 S.Ct. at 628.
123
Provision of counsel and of a record, like adequate notice, would permit the juvenile to assert very much more effectively his rights and defenses, both in the juvenile proceedings and upon direct or collateral review. The Court has frequently emphasized their importance in proceedings in which an individual may be deprived of his liberty, see Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, and Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; this reasoning must include with special force those who are commonly inexperienced and immature. See Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158. The facts of this case illustrate poignantly the difficulties of review without either an adequate record or the participation of counsel in the proceeding's initial stages. At the same time, these requirements should not cause any substantial modification in the character of juvenile court proceedings: counsel, although now present in only a small percentage of juvenile cases, have apparently already appeared without incident in virtually all juvenile courts;3 and the maintenance of a record should not appreciably alter the conduct of these proceedings.
124
The question remains whether certain additional requirements, among them the privilege against self-incrimination, confrontation, and cross-examination, must now, as the Court holds, also be imposed. I share in part the views expressed in my Brother WHITE'S concurring opinion, but believe that there are other, and more deep-seated, reasons to defer, at least for the present, the imposition of such requirements.
125
Initially, I must vouchsafe that I cannot determine with certainty the reasoning by which the Court concludes that these further requirements are now imperative. The Court begins from the premise, to which it gives force at several points, that juvenile courts need not satisfy 'all of the requirements of a criminal trial.' It therefore scarcely suffices to explain the selection of these particular procedural requirements for the Court to declare that juvenile court proceedings are essentially criminal, and thereupon to recall that these are requisites for a criminal trial. Nor does the Court's voucher of 'authoritative opinion,' which consists of four extraordinary juvenile cases, contribute materially to the solution of these issues. The Court has, even under its own permises, asked the wrong questions: the problem here is to determine what forms of procedural protection are necessary to guarantee the fundamental fairness of juvenile proceedings, and not which of the procedures now employed in criminal trials should be transplanted intact to proceedings in these specialized courts.
126
In my view, the Court should approach this question in terms of the criteria, described above, which emerge from the history of due process adjudication. Measured by them, there are compelling reasons at least to defer imposition of these additional requirements. First, quite unlike notice, counsel, and a record, these requirements might radically alter the character of juvenile court proceedings. The evidence from which the Court reasons that they would not is inconclusive,4 and other available evidence suggests that they very likely would.5 At the least, it is plain that these additional requirements would contribute materially to the creation in these proceedings of the atmosphere of an ordinary criminal trial, and would, even if they do no more, thereby largely frustrate a central purpose of these specialized courts. Further, these are restrictions intended to conform to the demands of an intensely adversary system of criminal justice; the broad purposes which they represent might be served in juvenile courts with equal effectiveness by procedural devices more consistent with the premises of proceedings in those courts. As the Court apparently acknowledges, the hazards of self-accusation, for example, might be avoided in juvenile proceedings without the imposition of all the requirements and limitations which surround the privilege against self-incrimination. The guarantee of adequate notice, counsel, and a record would create conditions in which suitable alternative procedures could be devised; but, unfortunately, the Court's haste to impose restrictions taken intact from criminal procedure may well seriously hamper the development of such alternatives. Surely this illustrates that prudence and the principles of the Fourteenth Amendment alike require that the Court should now impose no more procedural restrictions than are imperative to assure fundamental fairness, and that the States should instead be permitted additional opportunities to develop without unnecessary hindrance their systems of juvenile courts.
127
I find confirmation for these views in two ancillary considerations. First, it is clear that an uncertain, but very substantial number of the cases brought to juvenile courts involve children who are not in any sense guilty of criminal misconduct. Many of these children have simply the misfortune to be in some manner distressed; others have engaged in conduct, such as truancy, which is plainly not criminal.6 Efforts are now being made to develop effective, and entirely noncriminal, methods of treatment for these children.7 In such cases, the state authorities are in the most literal sense acting in loco parentis; they are, by any standard, concerned with the child's protection, and not with his punishment. I do not question that the methods employed in such cases must be consistent with the constitutional obligation to act in accordance with due process, but certainly the Fourteenth Amendment does not demand that they be constricted by the procedural guarantees devised for ordinary criminal prosecutions. Cf. State of Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744. It must be remembered that the various classifications of juvenile court proceedings are, as the vagaries of the available statistics illustrate, often arbitrary or ambiguous; it would therefore be imprudent, at the least, to build upon these classifications rigid systems of procedural requirements which would be applicable, or not, in accordance with the descriptive label given to the particular proceeding. It is better, it seems to me, to begin by now requiring the essential elements of fundamental fairness in juvenile courts, whatever the label given by the State to the proceedings; in this way the Court could avoid imposing unnecessarily rigid restrictions, and yet escape dependence upon classifications which may often prove to be illusory. Further, the provision of notice, counsel, and a record would permit orderly efforts to determine later whether more satisfactory classifications can be devised, and if they can, whether additional procedural requirements are necessary for them under the Fourteenth Amendment.
128
Second, it should not be forgotten that juvenile crime and juvenile courts are both now under earnest study throughout the country. I very much fear that this Court, by imposing these rigid procedural requirements, may inadvertently have served to discourage these efforts to find more satisfactory solutions for the problems of juvenile crime, and may thus now hamper enlightened development of the ys tems of juvenile courts. It is appropriate to recall that the Fourteenth Amendment does not compel the law to remain passive in the midst of change; to demand otherwise denies 'every quality of the law but its age'. Hurtado v. People of State of California, 110 U.S. 516, 529, 4 S.Ct. 111, 117, 28 L.Ed. 232.
III.
129
Finally, I turn to assess the validity of this juvenile court proceeding under the criteria discussed in this opinion. Measured by them, the judgment below must, in my opinion, fall. Gerald Gault and his parents were not provided adequate notice of the terms and purposes of the proceedings in which he was adjudged delinquent; they were not advised of their rights to be represented by counsel; and no record in any form was maintained of the proceedings. It follows, for the reasons given in this opinion, that Gerald Gault was deprived of his liberty without due process of law, and I therefore concur in the judgment of the Court.
130
Mr. Justice STEWART, dissenting.
131
The Court today uses an obscure Arizona case as a vehicle to impose upon thousands of juvenile courts throughout the Nation restrictions that the Constitution made applicable to adversary criminal trials.1 I believe the Court's decision is wholly unsound as a matter of constitutional law, and sadly unwise as a matter of judicial policy.
132
Juvenile proceedings are not criminal trials. They are not civil trials. They are simply not adversary proceedings. Whether treating with a delinquent child, a neglected child, a defective child, or a dependent child, a juvenile proceeding's whole purpose and mission is the very opposite of the mission and purpose of a prosecution in a criminal court. The object of the one is correction of a condition. The object of the other is conviction and punishment for a criminal act.
133
In the last 70 years many dedicated men and women have devoted their professional lives to the enlightened task of bringing us out of the dark world of Charles Dickens in meeting our responsibilities to the child in our society. The result has been the creation in this century of a system of juvenile and family courts in each of the 50 States. There can be no denying that in many areas the performance of these agencies has fallen disappointingly short of the hopes and dreams of the courageous pioneers who first conceived them. For a variety of reasons, the reality has sometimes not even approached the ideal, and much remains to be accomplished in the administration of public juvenile and family agencies—in personnel, in planning, in financing, perhaps in the formulation of wholly new approaches.
134
I possess neither the specialized experience nor the expert knowledge to predict with any certainty where may lie the brightest hope for progress in dealing with the serious problems of juvenile delinquency. But I am certain that the answer does not lie in the Court's opinion in this case, which serves to convert a juvenile proceeding into a criminal prosecution.
135
The inflexible restrictions that the Constitution so wisely made applicable to adversary criminal trials have no inevitable place in the proceedings of those public social agencies known as juvenile or family courts. And to impose the Court's long catalog of requirements upon juvenile proceedings in every area of the country is to invite a long step backwards into the nineteenth century. In that era there were no juvenile proceedings, and a child was tried in a conventional criminal court will all the trappings of a conventional criminal trial. So it was that a 12-year-old boy named James Guild was tried in New Jersey for killing Catharine Beakes. A jury found him guilty of murder, and he was sentenced to death by hanging. The sentence was executed. It was all very constitutional.2
136
A State in all its dealings must, of course, accord every person due process of law. And due process may require that some of the same restrictions which the Constitution has placed upon criminal trials must be imposed upon juvenile proceedings. For example, I suppose that all would agree that a brutally coerced confession could not constitutionally be considered in a juvenile court hearing. But it surely does not follow that the testimonial privilege against self-incrimination is applicable in all juvenile proceedings.3 Similarly, due process clearly requires timely notice of the purpose and scope of any proceedings affecting the relationship of parent and child. Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62. But it certainly does not follow that notice of a juvenile hearing must be framed with all the technical niceties of a criminal indictment. See Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240.
137
In any event, there is no reason to deal with issues such as these in the present case. The Supreme Court of Arizona found that the parents of Gerald Gault 'knew of their right to counsel, to subpoena and cross examine witnesses, of the right to confront the witnesses against Gerald and the possible consequences of a finding of delinquency.' 99 Ariz. 181, 185, 407 P.2d 760, 763. It further found that 'Mrs. Gault knew the exact nature of the charge against Gerald from the day he was taken to the detention home.' 99 Ariz., at 193, 407 P.2d, at 768. And, as Mr. Justice WHITE correctly points out, pp. 64-65, ante, no issue of compulsory self-incrimination is presented by this case.
138
I would dismiss the appeal.
1
Under Arizona law, juvenile hearings are conducted by a judge of the Superior Court, designated by his colleagues on the Superior Court to serve as Juvenile Court Judge. Arizona Const., Art. 6, § 15, A.R.S.; Arizona Revised Statutes (hereinafter ARS) §§ 8—201, 8—202.
2
There is a conflict between the recollection of Mrs. Gault and that of Officer Flagg. Mrs. Gault testified that Gerald was released on Friday, June 12, Officer Flagg that it had been on Thursday, June 11. This was from memory; he had no record, and the note hereafter referred to was undated.
3
Officer Flagg also testified that Gerald had not, when questioned at the Detention Home, admitted having made any of the lewd statements, but that each boy had sought to put the blame on the other. There was conflicting testimony as to whether Ronald had accused Gerald of making the lewd statements during the June 15 hearing.
4
Judge McGhee also testified that Gerald had not denied 'certain statements' made to him at the hearing by Officer Henderson.
5
'Q. All right. Now, Judge, would you tell me under what section of the law or tell me under what section of—of the code you found the boy delinquent?
'A. Well, there is a—I think it amounts to disturbing the peace. I can't give you the section, but I can tell you the law, that when one person uses lewd language in the presence of another person, that it can amount to—and I consider that when a person makes it over the phone, that it is considered in the presence, I might be wrong, that is one section. The other section upon which I consider the boy delinquent is Section 8—201, Subsection (d), habitually involved in immoral matters.'
6
ARS § 8—201, subsec. 6, the section of the Arizona Juvenile Code which defines a delinquent child, reads:
"Delinquent child' includes:
'(a) A child who has violated a law of the state or an ordinance or regulation of a political subdivision thereof.
'(b) A child who, by reason of being incorrigible, wayward or habitually disobedient, is uncontrolled by his parent, guardian or custodian.
'(c) A child who is habitually truant from school or home.
'(d) A child who habitually so deports himself as to injure or endanger the morals or health of himself or others.'
7
For example, the laws of Arizona allow arrest for a misdemeanor only if a warrant is obtained or if it is committed in the presence of the officer. ARS § 13—1403. The Supreme Court of Arizona held that this is inapplicable in the case of juveniles. See ARS § 8—221 which relates specifically to juveniles. But compare Two Brothers and a Case of Liquor, Juv.Ct.D.C., Nos. 66 2652—J, 66—2653—J, December 28, 1966 (opinion of Judge Ketcham); Standards for Juvenile and Family Courts, Children's Bureau Pub. No. 437—1966, p. 47 (hereinafter cited as Standards); New York Family Court Act § 721 (1963) (hereinafter cited as N.Y.Family Court Act).
The court also held that the judge may consider hearsay if it is 'of a kind on which reasonable men are accustomed to rely in serious affairs.' But compare Note, Juvenile Delinquents: The Police, State Courts, and Individualized Justice, 79 Harv.L.Rev. 775, 794—795 (1966) (hereinafter cited as Harvard Law Review Note):
'The informality of juvenile court hearings frequently leads to the admission of hearsay and unsworn testimony. It is said that 'close adherence to the strict rules of evidence might prevent the court from obtaining important facts as to the child's character and condition which could only be to the child's detriment.' The assumption is that the judge will give normally inadmissible evidence only its proper weight. It is also declared in support of these evidentiary practices that the juvenile court is not a criminal court, that the importance of the hearsay rule has been overestimated, and that allowing an attorney to make 'technical objections' would disrupt the desired informality of the proceedings. But to the extent that the rules of evidence are not merely technical or historical, but like the hearsay rule have a sound basis in human experience, they should not be rejected in any judicial inquiry. Juvenile court judges in Los Angeles, Tucson, and Wisconsin Rapids, Wisconsin report that they are satisfied with the operation of their courts despite application of unrelaxed rules of evidence.' (Footnote omitted.)
It ruled that the correct burden of proof is that 'the juvenile judge must be persuaded by clear and convincing evidence that the infant has committed the alleged delinquent act.' Compare the 'preponderance of the evidence' test, .Y .Family Court Act § 744 (where maximum commitment is three years, §§ 753, 758). Cf. Harvard Law Review Note, p. 795.
8
See, e.g., In Matters of W. and S., 19 N.Y.2d 55, 277 N.Y.S.2d 675, 224 N.E.2d 102 (1966); In Interests of Carlo and Stasilowicz, 48 N.J. 224, 225 A.2d 110 (1966); People v. Dotson, 46 Cal.2d 891, 299 P.2d 875 (1956); Pee v. United States, 107 U.S.App.D.C., 47, 274 F.2d 556 (1959); Wissenburg v. Bradley, 209 Iowa 813, 229 N.W. 205, 67 A.L.R. 1075 (1930); Bryant v. Brown, 151 Miss. 398, 118 So. 184, 60 A.L.R. 1325 (1928); Dendy v. Wilson, 142 Tex. 460, 179 S.W.2d 269, 151 A.L.R. 1217 (1944); Application of Johnson, 178 F.Supp. 155 (D.C.N.J.1957).
9
383 U.S., at 553, 86 S.Ct., at 1053.
10
332 U.S., at 601, 68 S.Ct., at 304 (opinion for four Justices).
11
See Report by the President's Commission on Law Enforcement and Administration of Justice, 'The Challenge of Crime in a Free Society' (1967) (hereinafter cited as Nat'l Crime Comm'n Report), pp. 81, 85—86; Standards, p. 71; Gardner, The Kent Case and the Juvenile Court: A Challenge to Lawyers, 52 A.B.A.J. 923 (1966); Paulsen, Fairness to the Juvenile Offender, 41 Minn.L.Rev. 547 19 57); Ketcham, The Legal Renaissance in the Juvenile Court, 60 Nw.U.L.Rev. 585 (1965); Allen, The Borderland of Criminal Justice (1964), pp. 19—23; Harvard Law Review Note, p. 791; Note, Rights and Rehabilitation in the Juvenile Courts, 67 Col.L.Rev. 281 (1967); Comment, Criminal Offenders in the Juvenile Court: More Brickbats and Another Proposal, 114 U.Pa.L.Rev. 1171 (1966).
12
See Kent v. United States, 383 U.S. 541, 555, 86 S.Ct. 1045, 1054 and n. 22 (1966).
13
See n. 7, supra.
14
See National Council of Juvenile Court Judges, Directory and Manual (1964), p. 1. The number of Juvenile Judges as of 1964 is listed as 2,987, of whom 213 are full-time Juvenile Court Judges. Id., at 305. The Nat'l Crime Comm'n Report indicates that half of these judges have no undergraduate degree, a fifth have no college education at all, a fifth are not members of the bar, and three-quarters devote less than one-quarter of their time to juvenile matters. See also McCune, Profile of the Nation's Juvenile Court Judges (monograph, George Washington University, Center for the Behavioral Sciences, 1965), which is a detailed statistical study of Juvenile Court Judges, and indicates additionally that about a quarter of these judges have no law school training at all. About one-third of all judges have no probation and social work staff available to them; between eighty and ninety percent have no available psychologist or psychiatrist. Ibid. It has been observed that while 'good will, compassion, and similar virtues are * * * admirably prevalent throughout the system * * * expertise, the keystone of the whole venture, is lacking.' Harvard Law Review Note, p. 809. In 1965, over 697,000 delinquency cases (excluding traffic) were disposed of in these courts, involving some 601,000 children, or 2% of all children between 10 and 17. Juvenile Court Statistics—1965, Children's Bureau Statistical Series No. 85 (1966), p. 2.
15
See Paulsen, Kent v. United States: The Constitutional Context of Juvenile Cases, 1966 Sup.Ct.Review 167, 174.
16
Julian Mack, The Juvenile Court, 23 Harv.L.Rev. 104, 119 120 (1909).
17
Id., at 120.
18
Id., at 109; Paulsen, op. cit. supra, n. 15, at 173—174. There seems to have been little early constitutional objection to the special procedures of juvenile courts. But see Waite, How Far Can Court Procedure Be Socialized Without Impairing Individual Rights, 12 J.Crim.L. & Criminology 339, 340 (1922): 'The court which must direct its procedure even apparently to do something to a child because of what he has done, is parted from the court which is avowedly concerned only with doing something for a child because of what he is and needs, by a gulf too wide to be bridged by any humanity which the judge may introduce into his hearings, or by the habitual use of corrective rather than punitive methods after conviction.'
19
Paulsen, op. cit. supra, n. 15, at 173; Hurley, Origin of the Illinois Juvenile Court Law, in The Child, The Clinic, and the Court (1925), pp. 320, 328.
20
Julian Mack, The Chancery Procedure in the Juvenile Court, in The Child, The Clinic, and the Court (1925), p. 310.
21
See, e.g., Shears, Legal Problems Peculiar to Children's Courts, 48 A.B.A.J. 719, 720 (1962) ('The basic right of a juvenile is not to liberty but to custody. He has the right to have someone take care of him, and if his parents do not afford him this custodial privilege, the law must do so.'); Ex parte Crouse, 4 Whart. 9, 11 (Sup.Ct.Pa.1839); Petition of Ferrier, 103 Ill. 367, 371—373 (1882).
22
The Appendix to the opinion of Judge Prettyman in Pee v. United States, 107 U.S.App.D.C. 47, 274 F.2d 556 (1959), lists authority in 51 jurisdictions to this effect. Even rules required by due process in civil proceedings, however, have not generally been deemed compulsory as to proceedings affecting juveniles. For example, constituton al requirements as to notice of issues, which would commonly apply in civil cases, are commonly disregarded in juvenile proceedings, as this case illustrates.
23
'There is evidence * * * that there may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.' 383 U.S., at 556, 86 S.Ct., at 1054, citing Handler, The Juvenile Court and the Adversary System: Problems of Function and Form, 1965 Wis.L.Rev. 7; Harvard Law Review Note; and various congressional materials set forth in 383 U.S., at 546, 86 S.Ct., at 1050, n. 5.
On the other hand, while this opinion and much recent writing concentrate upon the failures of the Juvenile Court system to live up to the expectations of its founders, the observation of the Nat'l Crime Comm'n Report should be kept in mind:
'Although its shortcomings are many and its results too often disappointing, the juvenile justice system in many cities is operated by people who are better educated and more highly skilled, can call on more and better facilities and services, and has more ancillary agencies to which to refer its clientele than its adult counterpart.' Id., at 78.
24
Foreword to Young, Social Treatment in Probation and Delinquency (1937), p. xxvii. The 1965 Report of the United States Commission on Civil Rights, 'Law Enforcement—A Report on Equal Protection in the South,' pp. 80—83, documents numerous instances in which 'local authorities used the broad discretion afforded them by the absence of safeguards (in the juvenile process)' to punish, intimidate, and obstruct youthful participants in civil rights demonstrations. See also Paulsen, Juvenile Courts, Family Courts, and the Poor Man, 54 Calif.L.Rev. 694, 707—709 (1966).
25
Lehman, A Juvenile's Right to Counsel in a Delinquency Hearing, 17 Juvenile Court Judges Journal 53, 54 (1966).
Compare the observation of the late Arthur T. Vanderbilt, Chief Justice of the Supreme Court of New Jersey, in a foreword to Virtue, Basic Structure for Children's Services in Michigan (1953), p. x:
'In their zeal to care for children neither juvenile judges nor welfare workers can be permitted to violate the Constitution, especially the constitutional provisions as to due process that are involved in moving a child from its home. The indispensable elements of due process are: first, a tribunal with jurisdiction; second, notice of a hearing to the proper parties; and finally, a fair hearing. All three must be present if we are to treat the cil d as an individual human being and not to revert, in spite of good intentions, to the more primitive days when he was treated as a chattel.'
We are warned that the system must not 'degenerate into a star chamber proceeding with the judge imposing his own particular brand of culture and morals on indigent people * * *.' Judge Marion G. Woodward, letter reproduced in 18 Social Service Review 366, 368 (1944). Doctor Bovet, the Swiss psychiatrist, in his monograph for the World Health Organization, Psychiatric Aspects of Juvenile Delinquency (1951), p. 79, stated that: 'One of the most definite conclusions of this investigation is that few fields exist in which more serious coercive measures are applied, on such flimsy objective evidence, than in that of juvenile delinquency.' We are told that 'The judge as amateur psychologist, experimenting upon the unfortunate children who must appear before him, is neither an attractive nor a convincing figure.' Harvard Law Review Note, at 808.
26
The impact of denying fundamental procedural due process to juveniles involved in 'delinquency' charges is dramatized by the following considerations: (1) In 1965, persons under 18 accounted for about one-fifth of all arrests for serious crimes (Nat'l Crime Comm'n, Report, p. 55) and over half of all arrests for serious property offenses (id., at 56), and in the same year some 601,000 children under 18, or 2% of all children between 10 and 17, came before juvenile courts (Juvenile Court Statistics 1965, Children's Bureau Statistical Series No. 85 (1966) p. 2). About one out of nine youths will be referred to juvenile court in connection with a delinquent act (excluding traffic offenses) before he is 18 (Nat'l Crime Comm'n Report, p. 55). Cf. also Wheeler & Cottrell, Juvenile Delinquency—Its Prevention and Control (Russell Sage Foundation, 1965), p. 2; Report of the President's Commission on Crime in the District of Columbia (1966) (hereinafter cited as D.C.Crime Comm'n Report), p. 773. Furthermore, most juvenile crime apparently goes undetected or not formally punished. Wheeler & Cottrell, supra, observe that '(A)lmost all youngsters have committed at least one of the petty forms of theft and vandalism in the course of their adolescence.' Id., at 28—29. See also Nat'l Crime Comm'n Report, p. 55, where it is stated that 'self-report studies reveal that perhaps 90 percent of all young people have committed at least one act for which they could have been brought to juvenile court.' It seems that the rate of juvenile delinquency is also steadily rising. See Nat'l Crime Comm'n Report, p. 56; Juvenile Court Statistics, supra, pp. 2—3. (2) In New York, where most juveniles are represented by counsel (see n. 69, infra) and substantial procedural rights are afforded (see, e.g., nn. 80, 81, 99, infra), out of a fiscal year 1965—1966 total of 10,755 juvenile proceedings involving boys, 2,242 weredi smissed for failure of proof at the fact-finding hearing; for girls, the figures were 306 out of a total of 1,051. New York Judicial Conference, Twelfth Annual Report, pp. 314, 316 (1967). (3) In about one-half of the States, a juvenile may be transferred to an adult penal institution after a juvenile court has found him 'delinquent' (Delinquent Children in Penal Institutions, Children's Bureau Pub. No. 415—1964, p. 1). (4) In some jurisdictions a juvenile may be subjected to criminal prosecution for the same offense for which he has served under a juvenile court commitment. However, the Texas procedure to this effect has recently been held unconstitutional by a federal district court judge, in a habeas corpus action. Sawyer v. Hauck, 245 F.Supp. 55 (D.C.W.D.Tex.1965). (5) In most of the States the juvenile may end in criminal court through waiver (Harvard Law Review Note, p. 793).
27
Malinski v. People of State of New York, 324 U.S. 401, 414, 65 S.Ct. 781, 787, 89 L.Ed. 1029 (1945) (separate opinion).
28
Foster, Social Work, the Law, and Social Action, in Social Casework, July 1964, pp. 383, 386.
29
See Note, Rights and Rehabilitation in the Juvenile Courts, 67 Col.L.Rev. 281, 321, and passim (1967).
30
Here again, however, there is substantial question as to whether fact and pretension, with respect to the separate handling and treatment of children, coincide. See generally infra.
While we are concerned only with procedure before the juvenile court in this case, it should be noted that to the extent that the special procedures for juveniles are thought to be justified by the
special consideration and treatment afforded them, there is reason to doubt that juveniles always receive the benefits of such a quid pro quo. As to the problem and importance of special care at the adjudicatory stage, cf. nn. 14 and 26, supra.
As to treatment, see Nat'l Crime Comm'n Report, pp. 80, 87; D.C.Crime Comm'n Report, pp. 665—676, 686—687 (at p. 687 the Report refers to the District's 'bankruptcy of dispositional resources'), 692—695, 700-718 (at p. 701 the Report observes that 'The Department of Public Welfare currently lacks even the rudiments of essential diagnostic and clinical services'); Wheeler & Cottrell, Juvenile Delinquency—Its Prevention and Control (Russell Sage Foundation, 1965), pp. 32—35; Harvard Law Review Note, p. 809; Paulsen, Juvenile Courts, Family Courts, and the Poor Man, 54 Calif.L.Rev. 694, 709—712 (1966); Polier, A View From the Bench (1964). Cf. Also, In the Matter of the Youth House, Inc., Report of the July 1966 'A' Term of the Bronx County Grand Jury, Supreme Court of New York, County of Bronx, Trial Term, Part XII, March 21, 1967 (cf. New York Times, March 23, 1967, p. 1, col. 8). The high rate of juvenile recidivism casts some doubt upon the adequacy of treatment afforded juveniles. See D.C.Crime Comm'n Report, p. 773; Nat'l Crime Comm'n Report, pp. 55, 78.
In fact, some courts have recently indicated that appropriate treatment is essential to the validity of juvenile custody, and therefore that a juvenile may challenge the validity of his custody on the ground that he is not in fact receiving any special treatment. See Creek v. Stone, 379 F.2d 106 (D.C.Cir. 1967); Kautter v. Reid, 183 F.Supp. 352 (D.C.D.C.1960); White v. Reid, 125 F.Supp. 647 (D.C.D.C.1954). See also Elmore v. Stone, 122 U.S.App.D.C. 416, 355 F.2d 841 (1966) (separate statement of Bazelon, C.J.); Clayton v. Stone, 123 U.S.App.D.C. 181, 358 F.2d 548 (1966) (separate statement of Bazelon, C.J.). Cf. Wheeler & Cottrell, supra, pp. 32, 35; In re Rich, 125 Vt. 373, 216 A.2d 266 (1966). Cf. also Rouse v. Cameron, 125 U.S.App.D.C. 366, 373 F.2d 451 (1966); Millard v. Cameron, 125 U.S.App.D.C. 383, 373 F.2d 468 (1966).
31
'(T)he word 'delinquent' has today developed such invidious connotations that the terminology is in the process of being altered; the new descriptive phrase is 'persons in need of supervision,' usually shortened to 'pins." Harvard Law Review Note, p. 799, n. 140. The N.Y. Family Court Act § 712 distinguishes between 'delinquents' and 'persons in need of supervision.'
32
See, e.g., the Arizona provision, ARS § 8—228.
33
Harvard Law Review Note, pp. 784—785, 800. Cf. Nat'l Crime Comm'n Report, pp. 87—88; Ketcham, The Unfulfilled Promise of the Juvenile Court, 7 Crime & Delin. 97, 102—103 (1961).
34
Harvard Law Review Note, pp. 785—787.
35
Id., at 785, 800. See also, with respect to the problem of confidentiality of records, Note, Rights and Rehabilitation in the Juvenile Courts, 67 Col.L.Rev. 281, 286—289 (1967). Even the privacy of the juvenile hearing itself is not always adequately protected. Id., at 285—286.
36
Mack, The Juvenile Court, 23 Harv.L.Rev. 104, 120 (1909).
37
Juvenile Delinquency—Its Prevention and Control (Russell Sage Foundation, 1966), p. 33. The conclusion of the Nat'l Crime Comm'n Report is similar: '(T)here is increasing evidence that the informal procedures, contrary to the original expectation, may themselves constitute a further obstacle to effective treatment of the delinquent to the extent that they engender in the child a sense of injustice provoked by seemingly all-powerful and challengeless exercise of authority by judges and probation officers.' Id., at 85. See also Allen, The Borderland of Criminal Justice (1964), p. 19.
38
Holmes' Appeal, 379 Pa. 599, 616, 109 A.2d 523, 530 (1954) (Musmanno, J., dissenting). See also The State (Sheerin) v. Governor, (1966) I.R. 379 (Supreme Court of Ireland); Trimble v. Stone, 187 F.Supp. 483, 485—486 (D.C.D.C.1960); Allen, The Borderland of Criminal Justice (1964), pp. 18, 52—56.
39
Cf. the Juvenile Code of Arizona, ARS § 8—201, subsec. 6.
40
Cf., however, the conclusions of the D.C. Crime Comm'n Report, pp. 692—693, concerning the inadequacy of the 'social study records' upon which the Juvenile Court Judge must make this determination and decide on appropriate treatment.
41
The Juvenile Judge's testimony at the habeas corus proceeding is devoid of any meaningful discussion of this. He appears to have centered his attention upon whethed Gerald made the phone call and used lewd words. He was impressed by the fact that Gerald was on six months' probation because he was with another boy who allegedly stole a purse—a different sort of offense, sharing the feature that Gerald was 'along'. And he even referred to a report which he said was not investigated because 'there was no accusation' 'because of lack of material foundation.'
With respect to the possible duty of a trial court to explore alternatives to involuntary commitment in a civil proceeding, cf. Lake v. Cameron, 124 U.S.App.D.C. 264, 364 F.2d 657 (1966), which arose under statutes relating to treatment of the mentally ill.
42
While appellee's brief suggests that the probation officer made some investigation of Gerald's home life, etc., there is not even a claim that the judge went beyond the point stated in the text.
43
ARS §§ 8—201, 8—202.
44
Juvenile Delinquency—Its Prevention and Control (Russell Sage Foundation, 1966), p. 35. The gap between rhetoric and reality is also emphasized in the Nat'l Crime Comm'n Report, pp. 80—81.
45
383 U.S, at 555, 86 S.Ct., at 1054.
46
383 U.S., at 554, 86 S.Ct., at 1053. The Chief Justice stated in a recent speech to a conference of the National Council of Juvenile Court Judges, that a juvenile court 'must function within the framework of law and * * * in the attainment of its objectives it cannot act with unbridled caprice.' Equal Justice for Juveniles, 15 Juvenile Court Judges Journal, No. 3, pp. 14, 15 (1964).
47
383 U.S., at 562, 86 S.Ct., at 1057.
48
The Nat'l Crime Comm'n Report recommends that 'Juvenile courts should make fullest feasible use of preliminary conferences to dispose of cases short of adjudication.' Id., at 84. See also D.C.Crime Comm'n Report, pp. 662—665. Since this 'consent decree' procedure would involve neither adjudication of delinquency nor institutionalization, nothing we say in this opinion should be construed as expressing any views with respect to such procedure. The problems of pre-adjudication treatment of juveniles, and of post-adjudication disposition, are unique to the juvenile process; hence what we hold in this opinion with regard to the procedural requirements at the adjudicatory stage has no necessary applicability to other steps of the juvenile process.
49
ARS § 8—222, subsec. B.
50
Arizona's Juvenile Code does not provide for notice of any sort to be given at the commencement of the proceedings to the child or his parents. Its only notice provision is to the effect that if a person other than the parent or guardian is cited to appear, the parent or guardian shall be notified 'by personal service' of the time and place of hearing. ARS § 8—224. The procedure for initiating a proceeding, as specified by the statute, seems to require that after a preliminary inquiry by the court, a determination may be made 'that formal jurisdiction should be acquired.' Thereupon the court may authorize a petition to be filed. ARS § 8—222. It does not appear that this procedure was followed in the present case.
51
No such petition we served or supplied in the present case.
52
Nat'l Crime Comm'n Report, p. 87. The Commission observed that 'The unfairness of too much informality is * * * reflected in the inadequacy of notice to parents and juveniles about charges and hearings.' Ibid.
53
For application of the due process requirement of adequate notice in a criminal context, see, e.g., Cole v. State of Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948); In re Oliver, 333 U.S. 257, 273—278, 68 S.Ct. 499, 507—510, 92 L.Ed. 682 (1948). For application in a civil context, see, e.g., Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); Mullane v. Central Hanover Bank & Tr. Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Cf. also Chaloner v. Sherman, 242 U.S. 455, 37 S.Ct. 136, 61 L.Ed. 427 (1917). The Court's discussion in these cases of the right to timely and adequate notice forecloses any contention that the notice approved by the Arizona Supreme Court, or the notice actually given the Gaults, was constitutionally adequate. See also Antieau, Constitutional Rights in Juvenile Courts, 46 Cornell L.Q. 387, 395 (1961); Paulsen, Fairness to the Juvenile Offender, 41 Minn.L.Rev. 547, 557 (1957). Cf. Standards, pp. 63—65; Procedures and Evidence in the Juvenile Court, A Guidebook for Judges, prepared by the Advisory Council of Judges of the National Council on Crime and Delinquency (1962), pp. 9—23 (and see cases discussed therein).
54
Mrs. Gault's 'knowledge' of the charge against Gerald, and/or the asserted failure to object, does not excuse the lack of adequate notice. Indeed, one of the purposes of notice is to clarify the issues to be considered, and as our discussion of the facts, supra, shows, even the Juvenile Court Judge was uncertain as to the precise issues determined at the two 'hearings.' Since the Gaults had no counsel and were not told of their rightto counsel, we cannot consider their failure to object to the lack of constitutionally adequate notice as a waiver of their rights. Because of our conclusion that notice given only at the first hearing is inadequate, we need not reach the question whether the Gaults ever received adequately specific notice even at the June 9 hearing, in light of the fact they were never apprised of the charge of being habitually involved in immoral matters.
55
For recent cases in the District of Columbia holding that there must be advice of the right to counsel, and to have counsel appointed if necessary, see, e.g., Shioutakon v. District of Columbia, 98 U.S.App.D.C 3 71, 236 F.2d 666, 60 A.L.R.2d 686 (1956); Black v. United States, 122 U.S.App.D.C. 393, 355 F.2d 104 (1965); In re Poff, 135 F.Supp. 224 (D.C.D.C.1955). Cf. also In re Long, 184 So.2d 861, 862 (Sup.Ct.Miss., 1966); People v. Dotson, 46 Cal.2d 891, 299 P.2d 875 (1956).
56
The section cited by the court, ARS § 8—204, subsec. C, reads as follows:
'The probation officer shall have the authority of a peace officer. He shall:
'1. Look after the interests of neglected, delinquent and dependent children of the county.
'2. Make investigations and file petitions.
'3. Be present in court when cases are heard concerning children and represent their interests.
'4. Furnish the court information and assistance as it may require.
'5. Assist in the collection of sums ordered paid for the support of children.
'6. Perform other acts ordered by the court.'
57
Powell v. State of Alabama, 287 U.S. 45, 61, 53 S.Ct. 55, 61, 77 L.Ed. 158 (1932); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
58
In the present proceeding, for example, although the Juvenile Judge believed that Gerald's telephone conversation was within the condemnation of ARS § 13—377, he suggested some uncertainty because the statute prohibits the use of vulgar language 'in the presence or hearing of' a woman or child.
59
Powell v. State of Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64 (1932).
60
This means that the commitment, in virtually all cases, is for a minimum of three years since jurisdiction of juvenile courts is usually limited to age 18 and under.
61
See cases cited in n. 55, supra.
62
See, e.g., Schinitsky, 17 The Record 10 (N.Y. City Bar Assn. 1962); Paulsen, Fairness to the Juvenile Offender, 41 Minn.L.Rev. 547, 568—573 (1957); Antieau, Constitutional Rights in Juvenile Courts, 46 Cornell L.Q. 387, 404—407 (1961); Paulsen, Kent v. United States: The Constitutional Context of Juvenile Cases, 1966 Sup.Ct.Rev. 167, 187—189; Ketcham, The Legal Renaissance in the Juvenile Court, 60 Nw.U.L.Rev. 585 (1965); Elson, Juvenile Courts & Due Process, in Justice for the Child (Rosenheim ed.) 95, 103—105 (1962); Note, Rights and Rehabilitation in the Juvenile Courts, 67 Col.L.Rev. 281, 321—327 (1967). See also Nat'l Probation and Parole Assn., Standard Family Court Act (1959) § 19, and Standard Juvenile Court Act (1959) § 19, in 5 NPPA Journal 99, 137, 323, 367 (1959) (hereinafter cited as Standard Family Court Act and Standard Juvenile Court Act, respectively).
63
Only a few state statutes require advice of the right to counsel and to have counsel appointed. See N. Y. Family Court Act §§ 241, 249, 728, 741; Calif.Welf. & Inst'ns Code §§ 633, 634, 659, 700 (1966) (appointment is mandatory only if conduct would be a felony in the case of an adult); Minn.Stat.Ann. § 260.155(2) (1966 Supp.) (see Comment of Legislative Commission accompanying this section); District of Columbia Legal Aid Act, D.C.Code Ann. § 2—2202 (1961) (Legal Aid Agency 'shall make attorneys available to represent indigents * * * in proceedings before the juvenile court * * *.' See Black v. United States, 122 U.S.App.D.C. 393, 395—396, 355 F.2d 104, 106—107 (1965), construing this Act as providing a right to appointed counsel and to be informed of that right). Other state statutes allow appointment on request, or in some classes of cases, or in the discretion of the court, etc. The state statutes are collected and classified in Riederer, The Role of Counsel in the Juvenile Court, 2 J.Fam.Law 16, 19—20 (1962), which, however, does not treat the statutes cited above. See also Nte , Rights and Rehabilitation in the Juvenile Courts, 67 Col.L.Rev. 281, 321—322 (1967).
64
Skoler & Tenney, Attorney Representation in Juvenile Court, 4 J.Fam.Law 77, 95—96 (1964); Riederer, The Role of Counsel in the Juvenile Court, 2 J.Fam.Law 16 (1962).
Recognition of the right to counsel involves no necessary interference with the special purposes of juvenile court procedures; indeed, it seems that counsel can play an important role in the process of rehabilitation. See Note, Rights and Rehabilitation in the Juvenile Courts, 67 Col.L.Rev. 281, 324—327 (1967).
65
Nat'l Crime Comm'n Report, pp. 86—87. The Commission's statement of its position is very forceful:
'The Commission believes that no single action holds more potential for achieving procedural justice for the child in the juvenile court than provision of counsel. The presence of an independent legal representative of the child, or of his parent, is the keystone of the whole structure of guarantees that a minimum system of procedural justice requires. The rights to confront one's accusers, to cross-examine witnesses, to present evidence and testimony of one's own, to be unaffected by prejudicial and unreliable evidence, to participate meaningfully in the dispositional decision, to take an appeal have substantial meaning for the overwhelming majority of persons brought before the juvenile court only if they are provided with competent lawyers who can invoke those rights effectively. The most informal and well-intentioned of judicial proceedings are technical; few adults without legal training can influence or even understand them; certainly children cannot. Papers are drawn and charges expressed in legal language. Events follow one another in a manner that appears arbitrary and confusing to the uninitiated. Decisions, unexplained, appear too official to challenge. But with lawyers come records of proceedings; records make possible appeals
which, even if they do not occur, impart by their possibility a healthy atmosphere of accountability.
'Fears have been expressed that lawyers would make juvenile court proceedings adversary. No doubt this is partly true, but it is partly desirable. Informality is often abused. The juvenile courts deal with cases in which facts are disputed and in which, therefore, rules of evidence, confrontation of witnesses, and other adversary procedures are called for. They deal with many cases involving conduct that can lead to incarceration or close supervision for long periods, and therefore juveniles often need the same safeguards that are granted to adults. And in all cases children need advocates to speak for them and guard their interests, particularly when disposition decisions are made. It is the disposition stage at which the opportunity arises to offer individualized treatment plans and in which the danger inheres that the court's coercive power will be applied without adequate knowledge of the circumstances.
'Fears also have been expressed that the formality lawyers would bring into juvenile court would defeat the therapeutic aims of the court. But informality has no necessary connection with therapy; it is a devide that has been used to approach therapy, and it is not the only possible device. It is quite possible that in many instances lawyers, for all their commitment to formality, could do more to further therapy for their clients than can the small, overworked social staffs of the courts. * * *
'The Commission believes it is essential that counsel be appointed by the juvenile court for those who are unable to provide their own. Experience under the prevailing systems in which children are free to seek counsel of their choice reveals how empty of meaning the right is for those typically the subjects of juvenile court proceedings. Moreover, providing counsel only when the child is sophisticated
enough to be aware of his need and to ask for one or when he fails to waive his announced right (is) not enough, as experience in numerous jurisdictions reveals.
'The Commission recommends:
'COUNSEL SHOULD BE APPOINTED AS A MATTER OF COURSE WHEREVER COERCIVE ACTION IS A POSSIBILITY, WITHOUT REQUIRING ANY AFFIRMATIVE CHOICE BY CHILD OR PARENT.'
66
Lehman, A Juvenile's Right to Counsel in A Delinquency Hearing, 17 Juvenile Court Judge's Journal 53 (1966). In an interesting review of the 1966 edition of the Children's Bureau's 'Standards,' Rosenheim, Standards for Juvenile and Family Courts: Old Wine in a New Bottle, 1 Fam.L.Q. 25, 29 (1967), the author observes that 'The 'Standards' of 1966, just like the 'Standards' of 1954, are valuable precisely because they represent a diligent and thoughtful search for an accommodation between the aspirations of the founders of the juvenile court and the grim realities of life against which, in part, the due process of criminal and civil law offers us protection.'
67
These are lawyers designated, as provided by the statute, to represent minors. N.Y.Family Court Act § 242.
68
N.Y.Family Court Act § 241.
69
N.Y.Family Court Act § 741. For accounts of New York practice under the new procedures, see Isaacs, The Role of the Lawyer in Representing Minors in the New Family Court, 12 Buffalo L.Rev. 501 (1963); Dembitz, Ferment and Experiment in New York: Juvenile Cases in the New Family Court, 48 Cornell L.Q. 499, 508 512 (1963). Since introduction of the law guardian system in September of 1962, it is stated that attorneys are present in the great majority of cases. Harvard Law Review Note, p. 796. See New York Judicial Conference, Twelfth Annual Report, pp. 288—291 (1967), for detailed statistics on representation of juveniles in New York. For the situation before 1962, see Schinitsky, The Role of the Lawyer in Children's Court, 17 The Record 10 (N.Y. City Bar Assn. 1962). In the District of Columbia, where statute and court decisions require that a lawyer be appointed if the family is unable to retain counsel, see n. 63, supra, and where the juvenile and his parents are so informed at the initial hearing, about 85% to 90% do not choose to be represented and sign a written waiver form. D.C. Crime Comm'n Report, p. 646. The Commission recommend a doption in the District of Columbia of a 'law guardian' system similar to that of New York, with more effective notification of the right to appointed counsel, in order to eliminate the problems of procedural fairness, accuracy of factfinding, and appropriateness of disposition which the absence of counsel in so many juvenile court proceedings involves. Id., at 681—685.
70
See n. 63, supra.
71
Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); United States ex rel. Brown v. Fay, 242 F.Supp. 273 (D.C.S.D.N.Y.1965).
72
The privilege is applicable to state proceedings. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964).
73
Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Douglas v. State of Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965).
74
For this reason, we cannot consider the status of Gerald's alleged admissions to the probation officers. Cf., however, Comment, Miranda Guarantees in the California Juvenile Court, 7 Santa Clara Lawyer 114 (1966).
75
3 Wigmore, Evidence § 822 (3d ed. 1940).
76
332 U.S., at 599—600, 68 S.Ct., at 303 (opinion of Mr. Justice Douglas, joined by Justices Black, Murphy and Rutledge; Justice Frankfurter concurred in a separate opinion).
77
See Fortas, The Fifth Amendment, 25 Cleveland Bar Assn. Journal 91 (1954).
78
See 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) (opinion of Mr. Justice Frankfurter, joined by Mr. Justice Stewart); Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
79
See also Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L.Ed. 158 (1924).
80
N.Y.Family Court Act § 741.
81
N.Y.Family Court Act § 724(a). In In Matter of Williams, 49 Misc.2d 154, 267 N.Y.S.2d 91 (1966), the New York Family Court held that 'The failure of the police to notify this child's parents that he had been taken into custody, if not alone sufficient to render his confession inadmissible, is germane on the issue of its voluntary character * * *.' Id., at 165, 267 N.Y.S.2d, at 106. The confession was held involuntary and therefore inadmissible.
82
N.Y.Family Court Act § 724 (as amended 1963, see Supp.1966). See In Matter of Addison, 20 A.D.2d 90, 245 N.Y.S.2d 243 (1963).
83
The issues relating to fingerprinting of juveniles are not presented here, and we express no opinion concerning them.
84
Standards, p. 49.
85
See n. 79, supra, and accompanying text.
86
Delinquent Children in Penal Institutions, Children's Bureau Pub. No. 415—1964, p. 1.
87
See, e.g., Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Garrity v. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967); Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 636, 17 L.Ed.2d 574 (1967); Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Culombe v. State of Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); Rogers v. Richmond, 365 U.S. 534, 84 S.Ct. 735, 5 L.Ed.2d 760 (1961); Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).
88
Arizona Constitution, Art. 6. § 15 (as amended 1960); ARS §§ 8—223, 8—228, subsec. A; Harvard Law Review Note, p. 793. Because of this possibility that criminal jurisdiction may attach it is urged that '* * * all of the procedural safeguards in the criminal law should be followed.' Standards, p. 49. Cf. Harling v. United States, 111 U.S.App.D.C. 174, 295 F.2d 161 (1961).
89
ARS § 8—228, subsec. A.
90
Juvenile Delinquency—Its Prevention and Control (Russell Sage Foundation, 1966).
91
Id., at 33. See also the other materials cited in n. 37, supra.
92
N.J.Rev.Stat. § 2A:4—37(b)(2), N.J.S.A. (Supp.1966); N.J.Rev.Stat. 2A:113—4, N.J.S.A.
93
N.J.Rev.Stat. § 2A:4—32, 33, N.J.S.A. The court emphasized that the 'frightening atmosphere' of a police station is likely to have 'harmful effects on the mind and will of the boy,' citing In Matter of Rutane, 37 Misc.2d 234, 234 N.Y.S.2d 777 (Fam.Ct.Kings County, 1962).
94
The court held that this alone might be enough to show that the confessions were involuntary 'even though, as the police testified, the boys did not wish to see their parents' (citing Gallegos v. State of Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962)).
95
The court quoted the following passage from Haley v. State of Ohio, supra, 332 U.S., at 601, 68 S.Ct., at 304:
'But we are told that this boy was advised of his constitutional rights before he signed the confession and that, knowing them, he nevertheless confessed. That assumes, however, that a boy of fifteen, without aid of counsel, would have a full appreciation of that advice and that on the facts of this record he had a freedom of choice. We cannot indulge those assumptions. Moreover, we cannot give any weight to recitals which merely formalize constitutional requirements. Formulas of respect for constitutional safeguards cannot prevail over the facts of life which contradict them. They may not become a cloak for inquisitorial practices and make an empty form of the due process of law for which free men fought and died to obtain.'
96
The N.Y.Family Court Act § 744(b) provides that 'an uncorroborated confession made out of court by a respondent is not sufficient' to constitute the required 'preponderance of the evidence.'
See United States v. Morales, 233 F.Supp. 160 (D.C.Mont.1964), holding a confession inadmissible in proceedings under the Federal Juvenile Delinquency Act (18 U.S.C. § 5031 et seq.) because, i t he circumstances in which it was made, the District Court could not conclude that it 'was freely made while Morales was afforded all of the requisites of due process required in the case of a sixteen year old boy of his experience.' Id., at 170.
97
Cf. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 694 (1966).
98
Standards, pp. 72—73. The Nat'l Crime Comm'n Report concludes that 'the evidence admissible at the adjudicatory hearing should be so limited that findings are not dependent upon or influenced by hearsay, gossip, rumor, and other unreliable types of information. To minimize the danger that adjudication will be affected by inappropriate considerations, social investigation reports should not be made known to the judge in advance of adjudication.' Id., at 87 (bold face eliminated). See also Note, Rights and Rehabilitation in the Juvenile Courts, 67 Col.L.Rev. 281, 336 (1967): 'At the adjudication stage, the use of clearly incompetent evidence in order to prove the youth's involvement in the alleged misconduct * * * is not justifiable. Particularly in delinquency cases, where the issue of fact is the commission of a crime, the introduction of hearsay—such as the report of a policeman who did not witness the events—contravenes the purposes underlying the sixth amendment right of confrontation.' (Footnote omitted.)
99
N.Y.Family Court Act § 744(a). See also Harvard Law Review Note, p. 795. Cf. Willner v. Committee on Character, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963).
100
ARS § 8—238.
101
Griffin v. People of State of Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956).
102
'Standards for Juvenile and Family Courts' recommends 'written findings of fact, some form of record of the hearing' 'and the right to appeal.' Standards, p. 8. It recommends verbatim recording of the hearing by stenotypist or mechanical recording (p. 76) and urges that the judge make clear to the child and family their right to appeal (p. 78). See also, Standard Family Court Act §§ 19, 24, 28; Standard Juvenile Court Act §§ 19, 24, 28. The Harvard Law Review Note, p. 799, states that 'The result (of the infrequency of appeals due to absence of record, indigency, etc.) is that juvenile court proceedings are largely unsupervised.' The Nat'l Crime Comm'n Report observes, p. 86, that 'records make possible appeals which, even if they do not occur, impart by their possibility a healthy atmosphere of accountability.'
1
'In all criminal prosecutions, the accused shall enjoy the right * * * to be informed of the nature and cause of the accusation * * *.' Also requiring notice is the Fifth Amendment's provision that 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *.'
2
'In all criminal prosecutions, the accused shall * * * have the Assistance of Counsel in his defence.'
3
'No person * * * shall be compelled in any criminal case to be a witness against himself * * *.'
4
'In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * *.'
1
Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84, decided at the 1965 Term, did not purport to rest on constitutional grounds.
2
It is appropriate to observe that, whatever the relevance the Court may suppose that this criticism has to present issues, many of the critics have asserted that the deficiencies of juvenile courts have stemmed chiefly from the inadequacy of the personnel and resources available to those courts. See, e.g., Paulsen, Kent v. United States: The Constitutional Context of Juvenile Cases, 1966 Sup.Ct.Rev. 167, 191—192; Handler, The Juvenile Court and the Adversary System: Problems of Function and Form, 1965 Wis.L.Rev. 7, 46.
3
The statistical evidence here is incomplete, but see generally Skoler & Tenney, Attorney Representation in Juvenile Court, 4 J. Fam.Law 77. They indicate that some 91% of the juvenile court judges whom they polled favored representation by counsel in their courts. Id., at 88.
4
Indeed, my Brother BLACK candidly recognizes that such is apt to be the effect of today's decision, ante, p. 60. The Court itself is content merely to rely upon inapposite language from the recommendations of the Children's Bureau, plus the terms of a single statute.
5
The most cogent evidence of course consists of the steady rejection of these requirements by state legislatures and courts. The wide disagreement and uncertainty upon this question are also reflected in Paulsen, Kent v. United States: The Constitutional Context of Juvenile Cases, 1966 Sup.Ct.Rev. 167, 186, 191. See also Paulsen, Fairness to the Juvenile Offender, 41 Minn.L.Rev. 547, 561—562; McLean, An Answer to the Challenge of Kent, 53 A.B.A.J. 456, 457; Alexander, Constitutional Rights in Juvenile Court, 46 A.B.A.J. 1206; Shears, Legal Problems Peculiar to Children's Courts, 48 A.B.A.J. 719; Siler, The Need for Defense Counsel in the Juvenile Court, 11 Crime & Delin. 45, 57—58. Compare Handler, The Juvenile Court and the Adversary System: Problems of Function and Form, 1965 Wis.L.Rev. 7, 32.
6
Estimates of the number of children in this situation brought before juvenile courts range from 26% to some 48%; variation seems chiefly a product both of the inadequacy of records and of the difficulty of categorizing precisely the conduct with which juveniles are charged. See generally Sheridan, Juveniles Who Commit Noncriminal Acts: Why Treat in a Correctional System? 31 Fed.Probation 26, 27. By any standard, the number of juveniles involved is 'considerable.' Ibid.
7
Id., at 28—30.
1
I find it strange that a Court so intent upon fastening an absolute right to counsel upon nonadversary juvenile proceedings has not been willing even to consider whether the Constitution requires a lawyer's help in a criminal prosecution upon a misdemeanor charge. See Winters v. Beck, 385 U.S. 907, 87 S.Ct. 207, 17 L.Ed.2d 137; DeJoseph v. Connecticut, 385 U.S. 982, 87 S.Ct. 526, 17 L.Ed.2d 443.
2
State v. Guild, 5 Halst. 163, 10 N.J.L. 163, 18 Am.Dec. 404.
'Thus, also, in very modern times, a boy of ten years old was convicted on his own confession of murdering his bedfellow, there appearing in his whole behavior plain tokens of a mischievous discretion; and as the sparing this boy merely on account of his tender years might be of dangerous consequence to the public, by propagating a notion that children might commit such atrocious crimes with impunity, it was unanimously agreed by all the judges that he was a proper subject of capital punishment.' 4 Blackstone, stone, Commentaries 23 (Wendell ed. 1847).
3
Until June 13, 1966, it was clear that the Fourteenth Amendment's ban upon the use of a coerced confession is constitutionally quite a different thing from the Fifth Amendment's testimonal privilege against self-incrimination. See, for example, the Court's unanimous opinion in Brown v. State of Mississippi, 297 U.S. 278, at 285—286, 56 S.Ct. 461, 464—465, 80 L.Ed. 682, written by Chief Justice Hughes and joined by such distinguished members of this Court as Mr. Justice Brandeis, Mr. Justice Stone, and Mr. Justice Cardozo. See also Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453, decided January 19, 1966, where the Court emphasized the 'contrast' between 'the wrongful use of a coerced confession' and 'the Fifth Amendment's privilege against self-incrimination'. 382 U.S., at 416, 86 S.Ct., at 465. The complete confusion of these separate constitutional doctrines in Part V of the Court's opinion today stems, no doubt, from Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, a decision which I continue to believe was constitutionally erroneous.
| 12
|
387 U.S. 213
87 S.Ct. 1573
18 L.Ed.2d 726
NORTHEASTERN PENNSYLVANIA NATIONAL BANK & TRUST COMPANY, Petitioner,v.UNITED STATES.
No. 637.
Argued March 20, 1967.
Decided May 22, 1967.
Milton I. Baldinger, Washington, D.C., for petitioner.
Richard C. Pugh, Washington, D.C., for respondent.
Mr. Justice FORTAS delivered the opinion of the Court.
1
The issue in this case is whether a bequest in trust providing for the monthly payment to decedent's widow of a fixed amount can qualify for the estate tax marital deduction under § 2056(b)(5) of the Internal Revenue Code of 1954, 26 U.S.C. § 2056(b)(5). That section allows a marital deduction from a decedent's adjusted gross estate of up to one-half the value of the estate in respect to specified interests which pass to the surviving spouse. Among the interests which qualify is one in which the surviving spouse 'is entitled for life to * * * all the income from a specific portion (of the trust property), payable annually or at more frequent intervals, with power in the surviving spouse to appoint * * * such specific portion * * *.'1
2
At the date of decedent's death, the value of the trust corpus created by his will was $69,246. The will provided that his widow should receive $300 per month until decedent's youngest child reached 18, and $350 per month thereafter. If the trust income were insufficient, corpus could be invaded to make the specified payments; if income exceeded the monthly amount, it was to be accumulated.
3
The widow was given power to appoint the entire corpus by will.2
4
On decedent's estate tax return, his executor reported an adjusted gross estate of $199,750. The executor claimed the maximum marital deduction of one-half the gross estate, $99,875, on the ground that qualified interests passing to the wife exceeded that amount. The value of the property which passed to the widow outright was $41,751. To this the executor added the full value of the trust, $69,246. The Commissioner, however, determined that the trust did not qualify for the marital deduction because the widow's right to the income of the trust was not expressed as a 'fractional or percentile share' of the total trust income, as the Treasury Regulation, § 20.2056(b)—5(c), requires. Accordingly, the Commissioner reduced the amount of the allowable deduction to $41,751. The resulting deficiency in estate tax was paid, a claim for refund was disallowed, the executor sued in District Court for refund, and the District Judge gave summary judgment for the executor. On appeal, the Court of Appeals for the Third Circuit, 363 F.2d 476, sitting en banc, reversed, with three judges dissenting. Because of an acknowledged conflict between the decision of the Third Circuit in this case and that of the Seventh Circuit in Citizens National Bank of Evansville v. United States, 359 F.2d 817, petition for certiorari pending, No. 488, October Term, 1966,3 we granted certiorari. 385 U.S. 967, 87 S.Ct. 509, 17 L.Ed.2d 432. We reverse.
5
The basis for the Commissioner's disallowance lay in Treasury Regulation § 20.2056(b)—5(c). This interpretative Regulation purports to define 'specific portion' as it is used in § 2056(b)(5) of the Code: 'A partial interest in property is not treated as a specific portion of the entire interest unless the rights of the surviving spouse in income * * * constitute a fractional or percentile share of a property interest * * *.' The Regulation specifically provides that 'if the annual income of the spouse is limited to a specific sum * * * the interest is not a deductible interest.'4 If this Regulation properly implements the Code, the trust in this case plainly fails to qualify for the marital deduction. We hold, however, that in the context of this case the Regulation improperly restricts the scope of the congressionally granted deduction.
6
In the District Court, the executor initially claimed that the entire trust qualified for the marital deduction simply because, at the time of trial, the corpus had not yet produced an income in excess of $300 per month, and that the widow was therefore entitled 'to all the income from the entire interest.' The District Court rejected this contention, observing that the income from the corpus could exceed $330 per month, and in that event the excess would have to be accumulated. The executor's alternative claim, which the District Court accepted, was that the 'specific portion' of the trust corpus whose income would amount to $300 per month could be computed, and a deduction allowed for that amount.5
7
Resolution of the question in this case, whether a qualifying 'specific portion' an be computed from the monthly stipend specified in a decedent's will, is essentially a matter of discovering the intent of Congress. The general history of the marital deduction is well known. See United States v. Stapf, 375 U.S. 118, 128, 84 S.Ct. 248, 255, 11 L.Ed.2d 195 (1963). The deduction was enacted in 1948, and the underlying purpose was to equalize the incidence of the estate tax in community property and common-law jurisdictions. Under a community property system a surviving spouse takes outright ownership of half of the community property, which therefore is not included in the deceased spouse's estate. The marital deduction allows transfer of up to one-half of non-community property to the surviving spouse free of the estate tax. Congress, however, allowed the deduction even when the interest transferred is less than the outright ownership which community property affords. In 'recognition of one of the customary modes of transfer of property in common-law States,'6 the 1948 statute provided that a bequest in trust, with the surviving spouse 'entitled for life to all the income from the corpus of the trust, payable annually or at more frequent intervals, with power * * * to appoint the entire corpus'7 would qualify for the deduction.
8
The 1948 legislation required that the bequest in trust entitle the surviving spouse to 'all the income' from the trust corpus, and grant a power to appoint the 'entire corpus.' These requirements were held by several lower courts to disqualify for the deduction a single trust in which the surviving spouse was granted a right to receive half (for example) of the income and to appoint half of the corpus.8 Since there was no good reason to require a testator to create two separate trusts—one for his wife, the other for his children, for example—Congress in 1954 revised the marital deduction provision of the statute to allow the deduction where a decedent gives his surviving spouse 'all the income from the entire interest, or all the income from a specific portion thereof' and a power to 'appoint the entire interest, or such specific portion'. The House Report on this change states that 'The bill makes it clear that * * * a right to income plus a general power of appointment over only an undivided part of the property will qualify that part of the property for the marital deduction.'9 The Senate Report contains identical language.10 There is no indication in the legislative history of the change from which one could conclude that Congress—in using the words 'all the income from a specific portion' in the statute, or the equivalent words 'a right to income * * * over * * * an undivided part' in the committee reports—intended that the deduction afforded would be defeated merely because the 'specific portion' or the 'undivided part' was not expressed by the testator in terms of a 'fractional or percentile share' of the whole corpus.11
9
Congress' intent to afford a liberal 'estate-splitting' possibility to married couples, where the deductible half of the decedent's estate would ultimately—if not consumed—be taxable in the estate of the survivor, is unmistakable. Indeed, in § 93 of the Technical Amendments Act of 1958, 72 Stat. 1668, Congress made 'The more realistic rules of the 1954 Code' apply retroactively to the original enactment of the marital deduction in 1948, and opened the statute of limitations to allow refunds or credits for overpayments.12 Plainly such a provision should not be construed so as to impose unwarranted restrictions upon the availability of the deduction. Yet the Government insists that even where there are well-established principles for computing the principal required to produce the monthly stipend provided for in a trust, a 'specific portion' cannot be determined in that way. The 'specific portion' must, the Government urges, be expressed in the trust as a fractional or percentile share of the total corpus. The spouse of a testator whose will provides for a specific monthly stipend is deprived of any benefit from the marital deduction, according to the Government's view. But we can find no warrant for that narrow view, in common sense or in the statute and its history.
10
The Government puts most of its reliance upon a phrase which occurred once in the legislative history of the 1948 enactment. The Senate Report stated that the marital deduction would be available 'where the surviving spouse, by reason of her (sic) right to the income and a power of appointment, is the virtual owner of the property.'13 The Government's argument is that the deduction was intended only in cases where the equivalent of the outright ownership of a community property State was granted, and that this is what the Senate Report meant by the words 'virtual owner.' Actually, however, the words were not used in that context at all. The section of the Report from which those words derive deals with the rule that, with minor exceptions, the marital deduction does not apply where any person other than the surviving spouse has any power over the income or corpus of the trust. It is in this sense that the Report described the surviving spouse as a 'virtual owner.' Hence, the Government's argument that only a grant of the income from a fractional or percentile share subjects the surviving spouse to the vagaries and fluctuations of the economic performance of the corpus in the way an outright owner would be, is simply irrelevant. There is no indication whatsoever that Congress intended the deduction to be available only in such a situation, nor is there any apparent connection between the purposes of the deduction and such a limitation on its availability. Compare Gelb v. Commissioner of Internal Revenue, 298 F.2d 544, 550—551 (C.A.2d Cir. 1962). Obviously Congress did not intend the deduction to be available only with respect to interests equivalent to outright ownership, or trusts would not have been permitted to qualify at all.14
11
The Court of Appeals advanced a somewhat different argument in support of the Government's conclusion. Without relying upon the validity of the Regulation, the Court of Appeals maintained that a 'specific portion' can be found only where there is an acceptable method of computing it, and that no such method is available in a case of the present sort. The Court of Appeals noted that the computation must produce the'ratio between the maximum monthly income (producible by the whole corpus) and the monthly stipend (provided for in the trust).' 363 F.2d 476, 484. The following example was given:
12
'If the investment factors involved were constant and it could be determined that the maximum income that could be produced from the corpus in a month was, for example, $500 then the relationship between the $300 monthly stipend and the $500 maximum income would define 'specific portion' for marital deduction purposes, i.e.:
13
'$300 being 3/5 of $500 then 3/5 of $69,245.85 would be the 'specific portion' of the trust corpus from which the surviving spouse would be entitled to the entire income of $300 monthly under maximum production circumstances.
14
'Though in reality it might take the entire corpus to produce the monthly stipend, or even the necessity to invade corpus might be present, nevertheless * * * it could be said, after computing the theoretical maximum income, that the surviving spouse's income interest of $300 monthly represented the investment of 3/5 of the corpus. 'Specific portion' would then be accurately defined for marital deduction purposes.' (Italics in original.) 363 F.2d, at 484, n. 17.
15
The Court of Appeals concluded, however, that the computation could not be made because '(t)he market conditions for purposes of investment are unknown' and, therefore, there are no constant investment factors to use in computing the maximum possible monthly income of the whole corpus. 363 F.2d, at 484.
16
It is with this latter conclusion that we disagree. To be sure, perfect prediction of realistic future rates of return15 is not possible. However, the use of projected rates of return in the administration of the federal tax laws is hardly an innovation. Cf. Gelb v. Commissioner of Internal Revenue, 298 F.2d 544, 551, n. 7 (C.A.2d Cir. 1962). It should not be a difficult matter to settle on a rate of return available to a trustee under reasonable investment conditions, which could be used to compute the 'specific portion' of the corpus whose income is equal to the monthly stipend provided for in the trust. As the Court of Appeals for the Second Circuit observed in Gelb, supra, 'the use of actuarial tables for dealing with estate tax problems has been so widespread and of such long standing that we cannot assume Congress would have balked at it here; the United States is in business with enough different taxpayers so that the law of averages has ample opportunity to work.' 298 F.2d, at 551—552.
17
The Government concedes, as it must, that application of a projected rate of return to determine the 'specific portion' of the trust corpus whose income is equal to the monthly stipend allotted will not result in any of the combined marital estate escaping ultimate taxation in either the decedent's or the surviving spouse's estate. The Government argues, however, that if analogous actuarial methods were used to compute as a fixed dollar amount the 'specific portion' as to which a qualifying power of appointment is given, where the power in fact granted extends to the whole corpus but the corpus is subject to measurable invasions for the benefit, for example, of a child, the result, in some cases, would be to enable substantial avoidance of estate tax. Whether, properly viewed, the Government's claim holds true, and, if so, what effect that should have upon the qualification of such a trust, is a difficult matter. Needless to say nothing we hold in this opinion has reference to that quite different problem, which is not before us. Cf. Gelb v. Commissioner of Internal Revnu e, supra.
18
The District Court used an annuity-valuation approach to compute the 'specific portion.' This was incorrect. The question, as the Court of Appeals recognized, is to determine the amount of the corpus required to produce the fixed monthly stipend, not to compute the present value of the right to monthly payments over an actuarially computed life expectancy. Accordingly, we reverse and remand for further proceedings in conformity with this opinion.
19
Reversed and remanded.
20
Mr. Justice STEWART, whom Mr. Justice BLACK and Mr. Justice HARLAN join, dissenting.
21
'Resolution of the question in this case, whether a qualifying 'specific portion' can be computed from the monthly stipend specified in a decedent's will, is', says the Court, 'essentially a matter of discovering the intent of Congress.' Ante, p. 219. Substituting 'exclusively' for 'essentially,' I entirely agree with the Court's statement of the case. 'The deduction was enacted in 1948, and the underlying purpose was to equalize the incidence of the estate tax in community property and common-law jurisdictions.' Ante, p. 219. Again I agree. But I must differ with the Court in its determination that the intent of Congress leads to the result the Court today reaches. For allowing the trust before us to qualify for the marital deduction will inevitably lead to the ironic and unjustified result of giving common-law jurisdictions more favorable tax treatment than community property States.
22
The Court holds that the widow in this case had an interest in 'all the income from a specific portion' of the trust because the stream of payments to her could be capitalized by the use of assumed interest rates. This capitalized sum is then said to constitute the 'specific portion' which qualifies for the marital deduction. A corollary of the Court's theory is that a trust which gave the widow the right to the income from a fixed amount (in dollars) of corpus and the right to appoint the entire corpus would support a marital deduction.1 But if such a bequest qualifies, then one which limits her power of appointment to only that amount of corpus with respect to which she has income rights will also qualify for the marital deduction. For under the statute, the survivor must have only the right to 'all the income from a specific portion * * * with power in the surviving spouse to appoint * * * such specific portion.'2 (Emphasis added.) The way in which such an estate allows a tax avoidance scheme not available to a community-property couple can be easily illustrated.
23
Assume a trust estate of $200,000, with the widow receiving the right to the income from $100,000 of its corpus and a power of appointment over that $100,000, and the children of the testator receiving income from the balance of the corpus during the widow's life, their remainders to vest when she dies. Now suppose that when the widow dies the trust corpus has doubled in value to $400,000. The wife's power of appointment over $100,000 applies only to make $100,000 taxable to her estate.3 The remaining $300,000 passes tax free to the children. Contrast the situation in a community property State. The wife's 50% interest in the community property places $200,000 of the expanded assets in her estate and taxable as such; only $200,000, therefore, passes directly to the children. Thus, the Court's interpretation of 'specific portion' affords common-law estates a significant tax advantage that community property dispositions cannot obtain.
24
By changing 'specific portion' from the fractional share, which is both described in the Treasury Regulation and used as the basis for community property ownership, into a lump sum bearing no constant relation to the corpus, the Court allows capital appreciation to be transferred from the wife's to the children's interest in the estate without any tax consequence. Thus, today's decision is directly opposed to what we have previously recognized as the purpose of the marital deduction:
25
'The purpose * * * is only to permit a married couple's property to be taxed in two stages and not to allow a tax-exempt transfer of wealth into succeeding generations. Thus the marital deduction is generally restricted to the transfer of property interests that will be includible in the surviving spouse's gross estate.' United States v. Stapf, 375 U.S. 118, 128, 84 S.Ct. 248, 255, 11 L.Ed.2d 195.
26
The reference in the legislative history of the 1948 Act to the wife's 'virtual owner(ship)' of the interest qualifying for the deduction is explained by the purpose discerned in Stapf, supra.4 For only if she is the 'virtual owner,' will the wife's interest appreciate with the rest of the trust. Similarly, the congressional committee reports, in limiting their examples of 'specific portions' to fractional shares, manifest an understanding that no tax avoidance was to be allowed via the marital deduction.5 In no other manner could Congress have 'equalize(d) the incidence of the estate tax in community property and common-law jurisdictions,' as the Court so aptly puts it.
27
In ruling as it does today the Court not only frustrates the basic purposes of the marital deduction, it also ignores or brushes aside guideposts for deciding tax cases that have been carefully established in prior decisions of this Court. Thus, a 10-year-old interpretation of the statute contained in the Treasury Regulations is held invalid, although we have consistently given great weight to those regulations in the interpretation of tax statutes. See, e.g., United States v. Stapf, 375 U.S. 118, 127, n. 11, 84 S.Ct. 248, 255.
28
Of even greater importance is the sharp change of attitude toward the marital deduction which today's decision heralds. The Treasury's interpretation of 'specific portion' is held invalid because 'Congress' intent (was) to afford a liberal 'estate-splitting' possibility'. This finding of 'liberalism' in the marital deduction leads the Court to reason that '(p)lainly such a provision should not be construed so as to impose unwarranted restrictions upon the availability of the deduction.' Ante, p. 221. But we have previously construed the marital deduction to mean what it says and have not discerned a liberal intent that allows us o write new words into the statute, as the Court does here in changing 'specific portion' to 'ascertainable amount.' For example, in Jackson v. United States, 376 U.S. 503, 510, 84 S.Ct. 869, 873, 11 L.Ed.2d 871, eight members of the Court, speaking through MR. JUSTICE WHITE, declared that 'the marital deduction * * * was knowingly hedged with limitations' by Congress, and '(t)o the extent it was thought desirable to modify the rigors of (such limitations), exceptions * * * were written into the Code.' Thus, the lesson announced in Jackson, but ignored today, was that '(c) ourts should hesitate to provide (other exceptions) by straying so far from the statutory language.' Cf. Meyer v. United States, 364 U.S. 410, 81 S.Ct. 210, 5 L.Ed.2d 161. One looks in vain through the Jackson, Meyer, and Stapf opinions, supra, for the roots of the liberalism which the Court today finds bursting forth from the marital deduction.
29
With this change in approach, uncertainty is now introduced into one of the areas of the law where long-range reliance upon the meaning of a statute is essential. Estate planners and tax lawyers are technicians schooled to view the marital deduction as a tightly drawn, precise provision. They are now shown a totally new statute that is to be construed in the manner of a workman's compensation act. See Jackson v. Lykes Bros. Steamship Co., 386 U.S. 731, 87 S.Ct. 1419, 18 L.Ed.2d 488. Such a construction will hardly promote '(t)he achievement of the purposes of the marital deduction (which) is dependent to a great degree upon the careful drafting of wills'. Jackson v. United States, 376 U.S., at 511, 84 S.Ct. at 873.
30
Believing today's decision to be at odds with the statutory purpose and the consistent interpretation of the marital deduction, I respectfully dissent.
1
The section reads, in full:
'(5) Life estate with power of appointment in surviving spouse.—In the case of an interest in property passing from the decedent, if his surviving spouse is entitled for life to all the income from the entire interest, or all the income from a specific portion thereof, payable annually or at more frequent intervals, with power in the surviving spouse to appoint the entire interest, or such specific portion (exercisable in favor of such surviving spouse, or of the estate of such surviving spouse, or in favor of either, whether or not in each case the power is exercisable in favor of others), and with no power in any other person to appoint any part of the interest, or such specific portion, to any person other than the surviving spouse—
'(A) the interest or such portion thereof so passing shall, for purposes of subsection (a), be considered as passing to the surviving spouse, and
'(B) no part of the interest so passing shall, for purposes of paragraph (1) (A), be considered as passing to any person other than the surviving spouse.
'This paragraph shall apply only if such power in the surviving spouse to appoint the entire interest, or such specific portion thereof, whether exercisable by will or during life, is exercisable by such spouse alone and in all events.'
2
The trustee was also given discretion to invade up to $1,500 of corpus in the event of the widow's illness or financial emergency. The relevant part of the will is as follows:
'ITEM 6. I give, devise and bequeath one-half (1/2) of all the rest, residue and remainder of my estate, whatsoever and wheresoever the same be, both real and personal, to which I may be entitled, or which I may have power to dispose of at the time of my death, unto my Trustee hereinafter named and designated, to have and to hold the same in trust, nevertheless, as hereinafter provided.
'(a) I direct my Trustee to pay out of the said income and corpus of the said estate unto my wife, Beatrice O. Young, the sum of Three Hundred Dollars ($300.00) per month for and during the period until my youngest child reaches the age of eighteen years, and thereafter I direct my Trustee to pay to my wife, Beatrice O. Young, the sum of Three Hundred Fifty Dollars ($350.00) per month for and during the rest of her natural life.
'(b) If my wife survives me, she shall have the power, exercisable by Will, to appoint to her estate, or to others, any or all of the principal remaining at the time of her death. If my wife fails to appoint the entire principal to her estate or to others as above authorized, then upon her death (or if she predeceases me, then upon my death) any principal remaining at that time shall be paid over to my children on the same terms and conditions as under Item 7 of this my Will.'
3
In the Citizens National Bank case, decedent directed the trustee to pay the surviving wife $200 per month for the two years following his death, and thereafter $300 per month; the widow was the sole beneficiary. The District Director disallowed that part of the executorbank's claim to an estate tax marital deduction based upon the trust, and the bank sued for a refund. The District Court held in favor of the bank, and computed the allowable deduction by capitalizing the $200 monthly stipend at an assumed 3 1/2% rate of return. The Court of Appeals affirmed, one judge dissenting.
The decision of the Court of Appeals for the Third Circuit in the present case is also in apparent conflict with a decision of the Court of Appeals for the Second Circuit in Gelb v. Commissioner of Internal Revenue, 298 F.2d 544 (1962) (Friendly, J.). The surviving widow in Gelb was entitled to all the income from the trust. The trustees (of which the wife was one) were empowered to invade corpus up to $5,000 per year for the education and support of testator's youngest daughter, the payments to be made to the wife. The Court of Appeals held that the present worth of the maximum amount payable to the daughter could be computed actuarially, taking into account the joint expectancy of the widow and daughter, and could then be deducted from the total trust corpus to arrive at the 'specific portion' as to which the widow was given a power of appointment. The Court of Appeals observed that 'Congress spoke of a 'specific portion,' not of a 'fractional or percentile share * * *," 298 F.2d, at 550—551, and disapproved the Regulation 'insofar as it would limit a 'specific portion' to 'a fractional or percentile share." 298 F.2d, at 551.
4
The relevant part of the Regulation is as follows:
'(c) Definition of 'specific portion.' A partial interest in property is not treated as a specific portion of the entire interest unless the rights of the surviving spouse in income and as to the power constitute a fractional or percentile share of a property interest so that such interest or share in the surviving spouse reflects its proportionate share of the increment or decline in the whole of the property interest to which the income rights and the power relate. Thus, if the right of the spouse to income and the power extend to one-half or a specified percentage of the property, or the equivalent, the interest is considered as a specific portion. On the other hand, if the annual income of the spouse is limited to a specific sum, or if she has a power to appoint only a specific sum out of a larger fund, the interest is not a deductible interest.'
5
Because the marital deduction is computed as of the date of the deceased spouse's death, Jackson v. United States, 376 U.S. 503, 508, 84 S.Ct. 869, 872, 11 L.Ed.2d 871 (1964), the parties are agreed that the monthly stipend to be considered is $300 per month, not $350 per month.
6
S.Rep. No. 1013, 80th Cong., 2d Sess. (1948), p. 28, U.S.Code Cong.Service 1948, p. 1163.
7
Internal Revenue Code of 1939, § 812(e)(1)(F), as added by § 361 of the Revenue Act of 1948, c. 168, 62 Stat. 118.
8
See, e.g., Estate of Shedd v. Commissioner of Internal Revenue, 237 F.2d 345 (C.A. 9th Cir.), cert. denied, 352 U.S. 1024, 77 S.Ct. 590, 1 L.Ed.2d 596 (1957); Estate of Sweet (Tracy-Collins Trust Co. v. Commissioner of Internal Revenue), 234 F.2d 401 (C.A. 10th Cir.), cert. denied, 352 U.S. 878, 77 S.Ct. 100, 1 L.Ed.2d 79 (1956). See also S.Rep. No. 1983, 85th Cong., 2d Sess., (1958), pp. 240—241, U.S.Code Cong. & Admin.News 1958, p. 4791.
9
H.R.Rep. No. 1337, 83d Cong., 2d Sess. (1954), p. 92, U.S.Code Cong. & Admin.News 1954, p. 4017.
10
S.Rep. No. 1622, 83d Cong., 2d Sess. (1954), p. 125, U.S.Code Cong. & Admin.News 1954, p. 4629.
11
To be sure, the two reports do give an example of the simplest kind of trust covered by the change: 'For example, if the decedent in his will provided for the creation of a trust under the term of which the income from one-half of the trust property is payable to this surviving spouse with uncontrolled power in the spouse to appoint such one-half of the trust property by will, such interest will qualify. * * *' Reports, supra, nn. 9 and 10, at A319, 475, respectively. Obviously this example was not intended to limit the meaning of the new language.
12
S.Rep. No. 1983, 85th Cong., 2d Sess. (1958), p. 107.
13
S.Rep. No. 1013, 80th Cong., 2d Sess., pt. 2 (1948), p. 16.
14
Cf. Note, 19 Stan.L.Rev. 468, 470—472 (1967).
15
An estimated realistic rate of return which a trustee could be expected to obtain under reasonable investment conditions must be used—absent specific restrictions upon the trustee's investment powers—in order to isolate that 'part of the corpus which in (all) * * * reasonable event(s)' will produce no more than the monthly stipend, to paraphrase the court below. 363 F.2d, at 483.
1
The only difference between a trust which gives the wife income from a fixed amount of corpus and the one the Court has before it today is that the former does not require capitalizing a stream of payments into a lump sum, since it defines the sum at the outset. Neither of these trusts would qualify for the marital deduction under current Treasury Regulations:
'Definition of 'specific portion.' A partial interest in property is not treated as a specific portion of the entire interest unless the rights of the surviving spouse * * * constitute a fractional or percentile share of a property interest so that such interest or share * * * reflects its proportionate share of the increment or decline in the whole of the property interest * * *. (I)f the annual income of the spouse is limited to a specific sum, or if she has a power to appoint only a specific sum out of a larger fund, the interest is not a deductible interest.' Treas.Reg. § 20.2056(b)—5(c).
2
The Court describes the 'specific portion' over which the wife has a power of appointment as involving a 'quite different problem' from the question directly before us today. Ante, p. 225. But unless it could be held that 'such specific portion' does not refer to 'a specific portion' (and I do not see how such a holding is possible), the way in which the Court defines 'specific portion' with regard to the survivor's income rights will inevitably affect the meanng of 'specific portion' with regard to the power of appointment.
3
Section 2041 of the Internal Revenue Code of 1954.
4
S.Rep. No. 1013, 80th Cong., 2d Sess., pt. 2, p. 16 (1948).
5
H.R.Rep. No. 1337, 83d Cong., 2d Sess., p. A319 (1954); S.Rep. No. 1622, 83d Cong., 2d Sess., p. 475 (1954).
| 1112
|
387 U.S. 202
87 S.Ct. 1557
18 L.Ed.2d 673
SECURITIES AND EXCHANGE COMMISSION, Petitioner,v.UNITED BENEFIT LIFE INSURANCE COMPANY.
No. 428.
Argued April 10, 1967.
Decided May 22, 1967.
[Syllabus from pages 202-203 intentionally omitted]
ThurgoodMarshall, Sol. Gen., for petitioner.
Daniel J. McCauley, Jr., Philadelphia, Pa., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
This action was initiated by the Securities and Exchange Commission to enjoin respondent (United) from offering its 'Flexible Fund Annuity' contract without undertaking the registration required by § 5 of the Securities Act,1 and to compel United to register the 'Flexible Fund' itself as an 'investment company' pursuant to § 8 of the Investment Company Act of 1940.2
2
The 'Flexible Fund Annuity' is a deferred, or optional, annuity plan having characteristics somewhat similar to those of the variable annuities this Court held, in S.E.C. v. Variable Annuity Life Insurance Co., 359 U.S. 65, 79 S.Ct. 618, 3 L.Ed.2d 640 (VALIC), to be subject to the Securities Act. Like the variable annuity, it is a recent effort to meet the challenge of inflation by allowing the purchaser to reap the benefits of a professional investment program while at the same time gaining the security of an insurance annuity.3 There are, however, significant differences between the 'Flexible Fund' contract and the variable annuity, and it is claimed that these differences suffice to bring the 'Flexible Fund' contract within the 'optional annuity contract' exemption of § 3(a)(8) of the Securities Act4 and to bring the 'Flexible Fund' itself within the 'insurance company' exemption of § 3(c)(3) of the Investment Company Act, 54 Stat. 798, 15 U.S.C. § 80a—3(c)(3).
3
The purchaser of a 'Flexible Fund' annuity agrees to pay a fixed monthly premium for a number of years before a specified maturity date. That premium less a deduction for expenses (the net premium), is placed in a 'Flexible Fund' account which United maintains separately from its other funds, pursuant to Nebraska law. Neb.Rev.Stat. § 44—310.06 (1963 Cum.Supp). United undertakes to invest the 'Flexible Fund' with the object of producing capital gains as well as an interest return, and the major part of the fund is invested in common stocks. The purchasers, at all times before maturity, is entitled to his proportionate share of the total fund and may withdraw all or part of this interest. The purchaser is also entitled to an alternative cash value measured by a percentage of his net premiums which gradually increases from 50% of that sum in the first year to 100% after 10 years. Other feature, common to conventional annuity contracts, are also incorporated in United's plan.5
4
At maturity, the purchaser may elect to receive the cash value of his policy, measured either by his interest in the fund or by the net premium guarantee, whichever is larger. He may also choose to convert his interest into a life annuity under conditions specified in the 'Flexible Fund' contract. These conditions relate future benefits to dollars available at maturity so the dollar benefits to be received will vary with the cash value at maturity. However, the net premium guarantee is, because of this conversion system, also a guarantee that a certain amount of fixed-amount payment life annuity will be available at maturity.
5
After maturity the policyholder has no further interest in the 'Flexible Fund.' He has either received the value of his interest in cash, or converted to a fixed-payment annuity in which case his interest has been transferred from the 'Flexible Fund' to the general reserves of the company, and mingled, on equal terms per dollar of cash value, with the interests of holders of conventional deferred annuities.
6
Because of the termination of interest in the 'Flexible Fund' at maturity, the SEC contended that the portion of the 'Flexible Fund' contract which dealt with the pre-maturity period was separable and a 'security,' within the meaning of the Securities Act. It was agreed that the provisions dealing with the operation of the fixed-payment annuity were purely conventional insurance provisions, and thus beyond the purview of the SEC. The District Court held that the guarantee of a fixed-payment annuity of a substantial amount gave the entire contract the character of insurance. The Court of Appeals for the District of Columbia Circuit affirmed. 123 U.S.App.D.C. 305, 359 F.2d 619. That court rejected 'the SEC's basic premise that the contract should be fragmented and the risk during the deferred period only should be considered.' Considering the contract as a whole, it found, as the SEC had urged, that this Court's decision in VALIC, supra, was controlling. But it read that decision to hold only 'that a company must bear a substantial part of the investment risk associated with the contract * * * in order to qualify its products as 'insurance." 123 U.S.App.D.C., at 308, 359 F.2d, at 622. Because of the net premium guarantee and the conversion to payments which included an interest element during the fixed-payment period, the court concluded that the 'Flexible Fund' met this test. Because of the importance of the issue, and the need for clarifying the implications of the VALIC decision, we granted certiorari, 385 U.S. 918, 87 S.Ct. 228, 17 L.Ed.2d 142. We now reverse for reasons given below.
7
First, we do not agree with the Court of Appeals that the 'Flexible Fund' contract must be characterized in its entirety. Two entirely distinct promises are included in the contract and their operation is separated at a fixed point in time. In selling a deferred annuity contract of any type, United must first decide what amount of annuity payment is to be allowed for each dollar paid into the annuity fund at maturity.6 In making that calculation United must analyze expected mortality, interest, and expenses of administration. The outcome of that calculation is shown in the conversion table which is included in the 'Flexible Fund' contract.
8
The second problem United must face in a deferred annuity is to determine what amount will be available for the annuity fund at maturity. In a conventional annuity where a fixed amount of benefits is stipulated it is essential that the premiums both cover expenses and produce a fund sufficient to support the promised benefits.7 In fixing the necessary premium mortality experience is a subordinate factor and the planning problem is to decide what interest and expense rates may be expected. There is some shifting of risk from policyholder to insurer, but no pooling of risks among policyholders. In other words, the insurer is acting, in a role similar to that of a savings institution, and state regulation is adjusted to this role.8 The policyholder has no direct interest in the fund9 and the insurer has a dollar target to meet.
9
The 'Flexible Fund' program completely reverses the role of the insurer during the accumulation period. Instead of promising to the policyholder an accumulation to a fixed amount of savings at interest, the insurer promises to serve as an investment agency and allow the policyholder to share in its investment experience. The insurer is obligated to produce no more than the guaranteed minimum at maturity, and this amount is substantially less than that guaranteed by the same premiums in a conventional deferred annuity contract.10 The fixed-payment benefits are adjusted to reflect the number of dollars available, as opposed to the conventional annuity where the amount available is planned to reflect the promised benefits.
10
The insurer may plan to meet the minimum guarantee by split funding—that is, treating part of the net premium as it would a premium under a conventional deferred annuity contract with a cash value at maturity equal to the minimum guarantee and investing only the remainder11—or by setting the minimum low enough that the risk of not being able to meet it through investment is insignificant. The latter is the course United seems to have pursued.12 In either case the guarantee cannot be said to integrate the pre-maturity operation into the post-maturity benefit scheme. United could as easily attach a 'Flexible Fund' option to a deferred life insurance contract or any other benefit which could otherwise be provided by a single payment. And the annuity portion of the contract could be offered independently of the 'Flexible Fund.'13 We therefore conclude that we must assess independently the operation of the 'Flexible Fund' contract during the deferred period to determine whether that separable portion of the contract falls within the class of those exempted by Congress from the requirements of the Securities Act, and, if not, whether the contract constitutes a 'security' within § 2 of that Act, 48 Stat. 74, 15 U.S.C. § 77b.
11
The provisions to be examined are less difficult of classification than the ones presented to us in VALIC. There it was held that the entire plan under which benefits continued to fluctuate with the fortunes of the fund after maturity, was not a contract of insurance within the § 3(a) exemption. A pooling of mortality risk was operative during the payment period, and the contract was one of insurance under state law, but a majority of this Court held that 'the meaning of 'insurance' * * * under these Federal Acts is a federal question,' 359 U.S., at 69, 79 S.Ct., at 621, and 'that the concept of 'insurance' involves some investment risk-taking on the part of the company.' Id., at 71, 79 S.Ct., at 622. The argument 'that the existence of adequate state regulation was the basis for the exemption (the position taken by four dissenting Justices) * * * was conclusively rejected * * * in VALIC for the reason that variable annuities are 'securities' and involve considerations of investment not present in the conventional contract of insurance.' Prudential Insurance Co. v. S.E.C., 3 Cir., 326 F.2d 383, 388. It was implied in the majority opinion in VALIC and made explicit by the two concurring Justices,14 that the exemption was to be considered a congressional declaration 'that there then was a form of 'investment' known as insurance (including 'annuity contracts') which did not present very squarely the sort of problems that the Securities Act * * * (was) devised to deal with, and which were, in many details, subject to a form of state regulation of a sort which made the federal regulation even less relevant.' VALIC, 359 U.S., at 75, 79 S.Ct. at 624 (opinion of Brennan, J.). In considering VALIC to have turned solely on the absence of any substantial investment risk-taking on the part of the insurer there, we think that the Court of Appeals in the present case viewed that decision too narrowly.
12
Approaching the accumulation portion of this contract, in this light, we have little difficulty in concluding that it does not fall within the insurance exemption of s 3(a) of the Securities Act. 'Flexible Fund' arrangements require special modifications of state law, and are considered to appeal to the purchaser not on the usual insurance basis of stability and security but on the prospect of 'growth' through sound investment management.15 And while the guarantee of cash value based on net premiums reduces substantially the investment risk of the contract holder, the assumption of an investment risk cannot by itself create an insurance provision under the federal definition. Helvering v. Le Gierse, 312 U.S. 531, 542, 61 S.Ct. 646, 650, 85 L.Ed. 996. The basic difference between a contract which to some degree is insured and a contract of insurance must be recognized.
13
We find it equally clear that the accumulation provisions constitute an 'investment contract' within the terms of 2 of the Securities Act. As the Court said in S.E.C. v. C. M. Joiner Leasing Corp., 320 U.S. 344, 352—353, 64 S.Ct. 120, 124, 88 L.Ed. 88, 'The test * * * is what character the instrument is given in commerce by the terms of the offer, the plan of distribution, and the economic inducements held out to the prospect. In the enforcement of an act such as this it is not inappropriate that promoters' offering be judged as being what they were represented to be.' Contracts such as the 'Flexible Fund' offer important competition to mutual funds, see Johnson, The Variable Annuity Insurance, Investment, or Both?, 48 Geo.L.J. 641, and are pitched to the same consumer interest in growth through professionally managed investment. It seems eminently fair that a purchaser of such a plan be afforded the same advantages of disclosure which inure to a mutual fund purchaser under § 5 of the Securities Act. 'At the state level the Uniform Securities Act makes explicit what seems to be the view of the great majority of blue sky administrators to the effect that variable annuities are securities * * *.' 1 Loss, Securities Regulation 499. Given VALIC, we hold that for the purposes of the Securities Act these contracts are also to be considered nonexempt securities and cannot be offered to the public without conformity to the registration requirements of § 5.
14
Because the courts below considered the contract itself to be exempt, they did not reach the question whether the 'Flexible Fund' was an 'investment company' under the Investment Company Act of 1940. In VALIC the sole business of the insurer was the issuance of the contracts held to be securities, and thus the Court held the insurer to be an investment company. It is clear, however, that United in the main is an insurance company exempt from the requirements of the Investment Company Act. Moreover, the provisions of that Act are substantive and go well beyond the disclosure requirements of the Securities Act. Thus the question whether the fund may be separated from United's other activities and considered an investment company is difficult one. See Comment, 61 Mich.L.Rev. 1374; Note, Regulation of Variable Annuity Sales: The Aftermath of SEC v. VALIC, 1959 Wash.U.L.Q. 206. An investigation into the relationship between the 'Flexible Fund' and United's insurance business, as well as an investigation of the possible conflicts between state and federal regulation, is required for a proper resolution. The SEC has requested us to remand the case for further consideration of this issue, and in view of its complexity, we deem this the wisest course.
15
The judgment of the Court of Appeals for the District of Columbia Circuit is reversed and the case is remanded to that court for further proceedings consistent with this opinion.
16
It is so ordered.
17
Reversed and remanded.
1
48 Stat. 77, 15 U.S.C. § 77e.
2
54 Stat. 803, 15 U.S.C. § 80a—8.
3
United's sales brochure describes the plan as featuring 'a method of accumulation modernized to keep pace with today's living * * * and a chance to share in the growth of the country's economy.' At the same time it is claimed that the plan 'combines this new method of accumulation with the time-tested advantages of a lifetime annuity * * * a savings and accumulation plan that guarantees a lifetime income at maturity.'
4
48 Stat. 76, 15 U.S.C. § 77c(a)(8) exempts from the operation of the Securities Act 'Any insurance or endowment policy or annuity contract or optional annuity contract, issued by a corporation subject to the supervision of the insurance commissioner, bank commissioner, or any agency or officer performing like functions, of any State or Territory of the United States or the District of Columbia.'
5
For example a refund of premiums is provided in case of death before maturity. Deferred periods of varying duration may be chosen, and the purchaser may elect to turn his cash value into an annuity at a date before specified maturity. Standard incontestability clauses and assignment clauses are incorporated into the contract. The contract at issue in S.E.C. v. Variable Annuity Life Insurance Co., 359 U.S. 65, 79 S.Ct. 618, 3 L.Ed.2d 640, also had some ancillary features common to all standard annuity contracts. The Court did not find them determinative. Id., at 73, n. 15, 79 S.Ct. at 623.
6
Anui ties may indeed be purchased for a single premium, and it is the basic singlepremium calculation which controls the benefits of all deferred plans. See Johnson, The Variable Annuity Insurance, Investment, or Both?, 48 Geo.L.J. 641, 655; Mehr & Osler, Modern Life Insurance 79—102 (3d ed. 1961).
7
For such a calculation the return-of-premium provision can be considered to be a form of term insurance provided by the company and included within the expense arrangements.
8
See Huebner Black, Life Insurance 518—524 (5th ed. 1958).
9
See Johnson, supra, n. 6, at 673.
10
The table below compares the cash values of the 'Flexible Fund' contracts with those of United's standard deferred annuities:
Respondent's
Flexible Fund standard deferred
Years Paid in guarantee annuity
1........... 1,200. 300 624
5........... 6,000. 3,461 5,460
10........... 12,000. 10,374 12,504
20........... 24,000. 21,774 30,792
30........... 36,000. 33,174 54,828
40........... 48,000. 44,574 87,156
11
See O'Brien, Static Dollars? Dynamic Dollars? WhyNo t Have Both!, Apr. 25, 1960 Investment Dealers' Digest (Mutual Fund Supplement) 56. Cf. Spellacy v. American Life Ins. Assn., 144 Conn. 346, 131 A.2d 834.
12
The record shows that United set its guarantee by analyzing the performance of common stocks during the first half of the 20th century and adjusting the guarantee so that it would not have become operable under any prior conditions.
13
Advisers Fund, Inc., a mutual fund, sells shares on an installment plan and simultaneously guarantees that an affiliated insurance company will allow the proceeds on redemption to be applied to the purchase of an annuity at specified conversion rates.
14
Mr. Justice Brennan and Mr. Justice Stewart joined in a concurring opinion written by Mr. Justice Brennan and also joined in the opinion of the Court.
15
United's primary advertisement for the 'Flexible Fund' was headed 'New Opportunity for Financial Growth.' United's sales aid kit included displays emphasizing the possibility of investment return and the experience of United's management in professional investing.
| 78
|
387 U.S. 158
87 S.Ct. 1520
18 L.Ed.2d 697
The TOILET GOODS ASSOCIATION, Inc., et al., Petitioners,v.John W.GA RDNER, Secretary of Health, Education, and Welfare et al.
No. 336.
Argued Jan. 16, 1967.
Decided May 22, 1967.
Edward J. Ross, New York City, for petitioners.
Nathan Lewin, Washington, D.C., for respondents.
Mr. Justice HARLAN delivered the opinion of the Court.
1
Petitioners in this case are the Toilet Goods Association, an organization of cosmetics manufacturers accounting for some 90% of annual American sales in this field, and 39 individual cosmetics manufacturers and distributors. They brought this action in the United States District Court for the Southern District of New York seeking declaratory and injunctive relief against the Secretary of Health, Education, and Welfare and the Commissioner of Food and Drugs, on the ground that certain regulations promulgated by the Commissioner exceeded his statutory authority under the Color Additive Amendments to the Federal Food, Drug and Cosmetic Act, 74 Stat. 397, 21 U.S.C. §§ 321—376. The District Court held that the Act did not prohibit this type of preenforcement suit, that a case and controversy existed, that the issues presented were justiciable, and that no reasons had been presented by the Government to warrant declining jurisdiction on discretionary grounds. 235 F.Supp. 648. Recognizing that the subsequent decision of the Court of Appeals for the Third Circuit in Abbott Laboratories v. Celebrezze, 352 F.2d 286, appeared to conflict with its holding, the District Court reaffirmed its earlier rulings but certified the question of jurisdiction to the Court of Appeals for the Second Circuit under 28 U.S.C. § 1292(b). The Court of Appeals affirmed the judgment of the District Court that jurisdiction to hear the suit existed as to three of the challenged regulations, but sustained the Government's contention that judicial review was improper as to a fourth. 360 F.2d 677.
2
Each side below sought review here from the portions of the Court of Appeals' decision adverse to it, the Government as petitioner in Gardner v. Toilet Goods Assn., No. 438, 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704, and the Toilet Goods Association and other plaintiffs in the present case. We granted certiorari in both instances, 385 U.S. 813, 87 S.Ct. 96, 17 L.Ed.2d 53, as we did in Abbott Laboratories v. Gardner, No. 39, 383 U.S. 924, 86 S.Ct. 928, 15 L.Ed.2d 844, because of the apparent conflict between the Second and Third Circuits. The two Toilet Goods cases were set and argued together with Abbott Laboratories.
3
In our decisions reversing the judgment in Abbott Laboratories, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681, and affirming the judgment in Gardner v. Toilet Goods Assn., 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704, both decided today, we hold that nothing in the Food, Drug, and Cosmetic Act, 52 Stat. 1040, as amended, bars a pre-enforcement suit under the Administrative Procedure Act, 5 U.S.C. §§ 701—704 (1964 ed., Supp. II), and the Declaratory Judgment Act, 28 U.S.C. § 2201. We nevertheless agree with the Court of Appeals that judicial review of this particular regulation in this particular context is inappropriate at this stage because, applying the standards set forth in Abbott Laboratories v. Gardner, the controversy is not presently ripe for adjudication.
4
The regulation in issue here was promulgated under the Color Additive Amendments of 1960, 74 Stat. 397, 21 U.S.C. §§ 321—376, a statute that revised and somewhat broadened the authority of the Commissioner to control the ingredients added to foods, drugs, and cosmetics that impart color to them. The Commissioner of Food and Drugs, exercising power delegated by the Secretary, 22 Fed.Reg. 1051, 25 Fed.Reg. 8625, under statutory authority 'to promulgate regulations for the efficient enforcement' of the Act, § 701(a), 21 U.S.C. § 371(a), issued the following regulation after due public notice, 26 Fed.Reg. 679, and consideration of comments submitted by interested parties:
5
'(a) When t appears to the Commissioner that a person has:
6
'(4) Refused to permit duly authorized employees of the Food and Drug Administration free access to all manufacturing facilities, processes, and formulae involved in the manufacture of color additives and intermediates from which such color additives are derived; 'he may immediately suspend certification service to such person and may continue such suspension until adequate corrective action has been taken.' 28 Fed.Reg. 6445—6446; 21 CFR § 8.28.1
7
The petitioners maintain that this regulation is an impermissible exercise of authority, that the FDA has long sought congressional authorization for free access to facilities, processes, and formulae (see, e.g., the proposed 'Drug and Factory Inspection Amendments of 1962,' H.R. 11581, 87th Cong., 2d Sess.; Hearings before the House Committee on Interstate and Foreign Commerce on H.R. 11581 and H.R. 11582, 87th Cong., 2d Sess., 67 74; H.R. 6788, 88th Cong., 1st Sess.), but that Congress has always denied the agency this power except for prescription drugs. § 704, 21 U.S.C. § 374. Framed in this way, we agree with petitioners that a 'legal' issue is raised, but nevertheless we are not persuaded that the present suit is properly maintainable.
8
In determining whether a challenge to an administrative regulation is ripe for review a twofold inquiry must be made: first to determine whether the issues tendered are appropriate for judicial resolution, and second to assess the hardship to the parties if judicial relief is denied at that stage.
9
As to the first of these factors, we agree with the Court of Appeals that the legal issue as presently framed is not appropriate for judicial resolution. This is not because the regulation is not the agency's considered and formalized determination, for we are in agreement with petitioners that under this Court's decisions in Frozen Food Express v. United States, 351 U.S. 40, 76 S.Ct. 569, 100 L.Ed. 910, and United States v. Storer Broadcasting Co., 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081, there can be no question that this regulation—promulgated in a formal manner after notice and evaluation of submitted comments is a 'final agency action' under § 10 of the Administrative Procedure Act, 5 U.S.C. § 704. See Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681. Also, we recognize the force of petitioners' contention that the issue as they have framed it presents a purely legal question: whether the regulation is totally beyond the agency's power under the statute, the type of legal issue that courts have occasionally dealt with without requiring a specific attempt at enforcement, Columbia Broadcasting System v. United States, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563; cf. Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, or exhaustion of administrative remedies, Allen v. Grand Central Aircraft Co., 347 U.S. 535, 74 S.Ct. 745, 98 L.Ed. 933; Skinner & Eddy Corp. v. United States, 249 U.S. 557, 39 S.Ct. 375, 63 L.Ed. 772.
10
These points which support the appropriateness of judicial resolution are, however, outweighed by other considerations. The regulation serves notice only that the Commissioner may under certain circumstances order inspection of certain fail ities and data, and that further certification of additives may be refused to those who decline to permit a duly authorized inspection until they have complied in that regard. At this juncture we have no idea whether or when such an inspection will be ordered and what reasons the Commissioner will give to justify his order. The statutory authority asserted for the regulation is the power to promulgate regulations 'for the efficient enforcement' of the Act, § 701(a). Whether the regulation is justified thus depends not only, as petitioners appear to suggest, on whether Congress refused to include a specific section of the Act authorizing such inspections, although this factor is to be sure a highly relevant one, but also on whether the statutory scheme as a whole justified promulgation of the regulation. See Wong Yang Sung v. McGrath, 339 U.S. 33, 47, 70 S.Ct. 445, 94 L.Ed. 616. This will depend not merely on an inquiry into statutory purpose, but concurrently on an understanding of what types of enforcement problems are encountered by the FDA, the need for various sorts of supervision in order to effectuate the goals of the Act, and the safeguards devised to protect legitimate trade secrets (see 21 CFR § 130.14(c)). We believe that judicial appraisal of these factors is likely to stand on a much surer footing in the context of a specific application of this regulation than could be the case in the framework of the generalized challenge made here.
11
We are also led to this result by considerations of the effect on the petitioners of the regulation, for the test of ripeness, as we have noted, depends not only on how adequately a court can deal with the legal issue presented, but also on the degree and nature of the regulation's present effect on those seeking relief. The regulation challenged here is not analogous to those that were involved in Columbia Broadcasting System, supra, and Storer, supra, and those other color additive regulations with which we deal in Gardner v. Toilet Goods Assn., 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704, where the impact of the administrative action could be said to be felt immediately by those subject to it in conducting their day-to-day affairs. See also Federal Communications Comm'n v. American Broadcasting Co., 347 U.S. 284, 74 S.Ct. 593, 98 L.Ed. 699.
12
This is not a situation in which primary conduct is affected when contracts must be negotiated, ingredients tested or substituted, or special records compiled. This regulation merely states that the Commissioner may authorize inspectors to examine certain processes or formulae; no advance action is required of cosmetics manufacturers, who since the enactment of the 1938 Act have been under a statutory duty to permit reasonable inspection of a 'factory, warehouse, establishment, or vehicle and all pertinent equipment, finished and unfinished materials; containers, and labeling therein.' § 704(a). Moreover, no irremediable adverse consequences flow from requiring a later challenge to this regulation by a manufacturer who refuses to allow this type of inspection. Unlike the other regulations challenged in this action, in which seizure of goods, heavy fines, adverse publicity for distributing 'adulterated' goods, and possible criminal liability might penalize failure to comply, see Gardner v. Toilet Goods Assn., 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704, a refusal to admit an inspector here would at most lead only to a suspension of certification services to the particular party, a determination that can then be promptly challenged through an administrative procedure,2 which in turn is reviewable by a court.3 Such review will provide an adequate forum for testing the regulation in a concrete situation.
13
It is true that the administrative hearing will deal with the 'factual basis' of the suspension, from which petitioners infer that the Commissioner will not entertain and consider a challenge to his statutory authority to promulgate the regulation.4 Whether or not this assumption is correct, given the fact that only minimal, if any, adverse consequences will face petitioners if they challenge the regulation in this manner, we think it wiser to require them to exhaust this administrative process through which the factual basis of the inspection order will certainly be aired and where more light may be thrown on the Commissioner's statutory and practical justifications for the regulation. Compare Federal Security Adm'r v. Quaker Oats Co., 318 U.S. 218, 63 S.Ct. 589, 87 L.Ed. 724.5 Judicial review will then be available, and a court at that juncture will be in a better position to deal with the question of statutory authority. Administrative Procedure Act § 10(e)(B)(3), 5 U.S.C. § 706(2)(C).
14
For these reasons the judgment of the Court of Appeals is affirmed.
15
Affirmed.
16
Mr. Justice DOUGLAS dissents for the reasons stated by Judge Tyler of the District Court, 235 F.Supp. 648, 651—652.
17
Mr. Justice BRENNAN took no part in the consideration or decision of this case.
1
The Color Additive Amendments provide for listings of color additives by the Secretary 'if and to the extent that such additives are suitable and safe * * *.' § 706(b)(1), 21 U.S.C. § 376(b)(1). The Secretary is further authorized to provide 'for the certification, with safe diluents or without diluents, of batches of color additives * * *.' § 706(c), 21 U.S.C. § 376(c). A color additive is 'deemed unsafe' unless it is either from a certified batch or exempted from the certification requirement, § 706(a), 21 U.S.C. § 376(a). A cosmetic containing such an 'unsafe' additive is deemed to be adulterated, § 601(e), 21 U.S.C. § 361(e), and is prohibited from interstate commerce. § 301(a), 21 U.S.C. § 331(a).
2
See 21 CFR §§ 8.28(b), 130.14—130.26. We recognize that a denial of certification might under certain circumstances cause inconvenience and possibly hardship, depending upon such factors as how large a supply of certified additives the particular manuac turer may have, how rapidly the administrative hearing and judicial review are conducted, and what temporary remedial or protective provisions, such as compliance with a reservation pending litigation, might be available to a manufacturer testing the regulation. In the context of the present case we need only say that such inconvenience is speculative and we have been provided with no information that would support an assumption that much weight should be attached to this possibility.
3
The statute and regulations are not explicit as to whether review would lie, as Judge Friendly suggested, 2 Cir., 360 F.2d, at 687, to a court of appeals under §§ 701(f) and 706(d) of the Act, or to a district court as an appeal from the Commissioner's 'final order,' 21 CFR § 130.26, under § 10 of the Administrative Procedure Act. See 21 CFR § 130.31; compare § 505, 21 U.S.C. § 355. For purposes of this case it is only necessary to ascertain that judicial review would be available to challenge any specific order of the Commissioner denying certification services to a particular drug manufacturer, and we therefore need not decide the statutory question of which forum would be appropriate for such review.
4
Petitioners also cite the Commissioner's refusal, in the context of a public hearing on certain drug regulations, to entertain objections to his statutory authority to promulgate them on the ground that 'This is a question of law and cannot be resolved by the taking of evidence at a public hearing.' 31 Fed.Reg. 7174.
5
See 3 Davis, Administrative Law Treatise § 20.03 at 69 (1958).
| 89
|
387 U.S. 105
87 S.Ct. 1549
18 L.Ed.2d 650
James SAILORS et al., Appellants,v.BOARD OF EDUCATION OF the COUNTY OF KENT et al.
No. 430.
Argued April 17 and 18, 1967.
Decided May 22, 1967.
Wendell A. Miles, Grand Rapids, Mich., for appellants.
Paul O. Strawhecke, Grand Rapids, Mich., for appellees.
Francis X. Beytagh, Jr., Cleveland, Ohio, for the United States, as amicus curiae, pro hac vice, by special leave of Court.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Appellants, qualified and registered electors of Kent County, Michigan, brought this suit in the Federal District Court to enjoin the Board of Education of Kent County from detaching certain schools from the city of Grand Rapids and attaching them to Kent County, to declare the county board to be unconstitutionally constituted, and to enjoin further elections until the electoral system is redesigned. Attack is also made on the adequacy of the statutory standards governing decisions of the county board in light of the requirements of due process. We need not bother with the intricate problems of state law involved in the dispute. For the federal posture of the case is a very limited one. The people of Michigan (qualified school electors) elect the local school boards.1 No constitutional question is presented as respects those election. The alleged constitutional questions arise when it comes to the county school board. It is chosen, not be the electors of the county, but by delegates from the local boards. Each board sends a delegate to a biennial meeting and those delegates elect a county board of five members, who need not be members of the local boards,2 from candidates nominated by school electors. It is argued that this system of choosing county board members parallels the countyunit system which we invalidated under the Equal Protection Clause of the Fourteenth Amendment in Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 and violates the principle of 'one man, one vote' which we held in that case and in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, was constitutionally required in state elections. A vast array of facts is assembled showing alleged inequities in a system which gives one vote to every local school board (irrespective of population, wealth, etc.) in the selection of the county board. A three-judge court was convened, and it held by a divided vote that the method of constitution of the county board did not violate the Fourteenth Amendment. 254 F.Supp. 17. We noted probable jurisdiction, 385 U.S. 966, 87 S.Ct. 499, 17 L.Ed.2d 431.
2
We conclude that a three-judge court was properly convened, for unlike the situation in Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643, this is a case where the state statute that is challenged3 applies generally to all Michigan county school boards of the type described.
3
We start with what we said in Reynolds v. Sims, supra, at 575, 84 S.Ct. at 1388:
4
'Political subdivisions of States—counties, cities or whatever—never were and never have been considered as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the caryi ng out of state governmental function. As stated by the Court in Hunter v. City of Pittsburgh, 207 U.S. 161, 178, (28 S.Ct. 40, 52 L.Ed. 151,) these governmental units are 'created as convenient agencies for exercising such of the governmental powers of the state, as may be entrusted to them,' and the 'number, nature and duration of the powers conferred upon (them) * * * and the territory over which they shall be exercised rests in the absolute discretion of the state."
5
We find no constitutional reason why state or local officers of the nonlegislative character involved here may not be chosen by the governor, by the legislature, or by some other appointive means rather than by an election. Our cases have, in the main, dealt with elections for United States Senator or Congressman (Gray v. Sanders, supra; Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481) or for state officers4 (Gray v. Sanders, supra) or for state legislators. Reynolds v. Sims, supra; WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568; Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609; Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620; Lucas v. Forty-Fourth Gen. Assembly of State of Colo., 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632; Marshall v. Hare, 378 U.S. 561, 84 S.Ct. 1912, 12 L.Ed.2d 1036.
6
They were all cases where elections had been provided and cast no light on when a State must provide for the election of local officials.
7
A State cannot of course manipulate its political subdivisions so as to defeat a federally protected right, as for example, by realigning political subdivisions so as to deny a person his vote because of race.5 Gomillion v. Lightfoot, 364 U.S. 339, 345, 81 S.Ct. 125, 129, 5 L.Ed.2d 110. Yet as stated in Anderson v. Dunn, 6 Wheat. 204, 226, 5 L.Ed. 242:
8
'The science of government is the most abstruse of all sciences; if, indeed, that can be called a science which has but few fixed principles, and practically consists in little more than the exercise of a sound discretion applied to the exigencies of the state as they arise. It is the science of experiment.'
9
If we assume arguendo that where a State provides for an election of a local official or agency, the requirements of Gray v. Sanders and Reynolds v. Sims must be met, we are still short of an answer to the present problem and that is whether Michigan may allow its county school boards to be appointed.
10
When we stated '* * * the state legislatures have constitutional authority to experiment with new techniques' (Day-Brite Lighting, Inc. v. State of Missouri, 342 U.S. 421, 423, 72 S.Ct. 405, 407, 96 L.Ed. 469), we were talking about the Due Process Clause of the Fourteenth Amendment, as was Mr. Justice Holmes, dissenting in Lochner v. State of New York, 198 U.S. 45, 75, 25 S.Ct. 539, 546, 49 L.Ed. 937, when he said '* * * a constitution is not intended to embody * * * the organic relation of the citizen to the state * * *.' But as we indicated in Gomillion v. Lightfoot, supra, it is precisely that same approach that we have taken when it comes to municipal and county arrangements within the framework of a State. Save and unless the state, county, or municipal government runs afoul of a federally protected right, it has vast leeway in the management of its internal affairs.
11
The Michigan system for selecting members of the county school board is basically appointive rather than elective.6 We need not decie at the present time whether a State may constitute a local legislative body through the appointive rather than the elective process. We reserve that question for other cases such as Moody v. Flowers (Board of Supervisors v. Bianchi), 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643, which we have disposed of on jurisdictional grounds. We do not have that question here, as the County Board of Education performs essentially administrative functions;7 and while they are important, they are not legislative in the classical sense.
12
Viable local governments may need many innovations, numerous combinations of old and new devices, great flexibility in municipal arrangements to meet changing urban conditions. We see nothing in the Constitution to prevent experimentation. At least as respects nonlegislative officers, a State can appoint local officials or elect them or combine the elective and appointive systems as was done here. If we assume arguendo that where a State provides for an election of a local official or agency—whether administrative, legislative, or judicial—the requirements of Gray v. Sanders and Reynolds v. Sims must be met, no question of that character is presented. For while there was an election here for the local school board, no constitutional complaint is raised respecting that election. Since the choice of members of the county school board did not involve an election and since none was required for these nonlegislative offices, the principle of 'one man, one vote' has no relevancy.
13
Affirmed.
14
Mr. Justice HARLAN and Mr. Justice STEWART concur in the result.
1
In Michigan the members of the local school district's board are elected by popular vote of the residents of the district. See Mich.Stat.Ann. § 15.3023 (1959) Comp.Laws 1948, § 340.23 (P.A.1955, No. 269); Mich.Stat.Ann. §§ 15.3027, 15.3055, 15.3056, 15.3107, 15.3148, 15.3188, 15.3511 (Supp.1965), Comp.Laws 1948, §§ 340.27, 340.55, 340.56, 340.107, 340.148, 340.188, 340.511 (P.A.1955, No. 269).
2
Mich.Stat.Ann. §§ 15.3294(1), 15.3295(1) (Supp.1965). Comp.Laws 1948, §§ 340.294a, 340.295a (P.A.1962, No. 190). By Mich.Stat.Ann. §§ 15.3294(2)—15.3294(6) (Supp.1965), Comp.Laws 1948, §§ 340.294b—340.294f (P.A.1962, No. 190), members of the county board may be chosen at popular elections provided the board submits the matter to a referendum and the people approve. So far as we are advised, no such referendum has been held; and the membership of the county board, here challenged, was constituted by electors chosen by the local boards.
3
Mich.Stat.Ann. § 15.3294(1) (Supp.1965).
4
The officers in Gray v. Sanders were: U.S. Senator, Governor, Lieutenant Governor, Justice of the Supreme Court, Judge of the Court of Appeals, Secretary of State, Attorney General, Comptroller General, Commissioner of Labor, and Treasurer.
5
Nor can the restraints imposed by the Constitution on the States be circumvented by local bodies to whom the State delegates authority. Standard Computing Scale Co. v. Farrell, 240 U.S. 571, 577, 39 S.Ct. 380, 382, 63 L.Ed. 780; Cooper v. Aaron, 358 U.S. 1, 17, 78 S.Ct. 1401, 1409, 3 L.Ed.2d 5.
6
The delegates from the local school boards, not the school electors, select the members of the county school board. While the school electors elect the members of the local school boards and the local school boards, in turn, select delegates to attend the meeting at which the county board is selected, the delegates need not cast their votes in accord with the expressed preferences of the school electors. There is not even a formal method by which a delegate can determine the preferences of the people in his district. It is evident, therefore, that the membership of the county board is not determined, directly or indirectly, through an election in which the residents of the county participate. The 'electorate' under the Michigan system is composed not of the people of the county, but the delegates from the local school boards.
7
The authority of the county board includes the appointment of a county school superintendent (Mich.Stat.Ann. § 15.3298(1)(b) (Supp.1965)), preparation of an annual budget and levy of taxes (Mich.Stat.Ann. § 15.3298(1)(c) (Supp.1965)), distribution of delinquent taxes (Mich.Stat.Ann. § 15.3298(1)(d) (Supp.1965)), furnishing consulting or supervisory services to a constituent school district upon request (Mich.Stat.Ann. § 15.3298(1)(g) (Supp.1965)), conducting cooperative educational programs on behalf of constituent school districts which request such services (Mich.Stat.Ann. § 15.3298(1)(i) (Supp.1965)), and with other intermediate school districts (Mich.Stat.Ann. § 15.3298(1)(j) (Supp.1965)), employment of teachers for special educational programs (Mich.Stat.Ann. § 15.3298(1)(h) (Supp.1965)), and establishing, at the direction of the Board of Supervisors, a school for children in the juvenile homes (Mich.Stat.Ann. § 15.3298(1)(k) (Supp.1965)) Comp.Laws 1948, § 340.298a (P.A.1962, No. 190). One of the board's most sensitive functions, and the one giving rise to this litigation, is the power to transfer areas from one school district to another. Mich.Stat.Ann. § 15.3461 (1959), Comp.Laws 1948, § 340.461 (P.A.1955, No. 269).
| 12
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387 U.S. 118
87 S.Ct. 1563
18 L.Ed.2d 661
Clive Michael BOUTILIER, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE.
No. 440.
Argued March 14, 1967.
Decided May 22, 1967.
Blanch Freedman, New York City, for petitioner.
Nathan Lewin, Washington, D.C., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
The petitioner, an alien, has been ordered deported to Canada as one who upon entry into this country was a homosexual and therefore 'afflicted with psychopathic personality' and excludable under § 212(a)(4) of the Immigration and Nationality Act of 1952, 66 Stat. 182, 8 U.S.C. § 1182(a)(4).* Petitioner's appeal from the finding of the Special Inquiry Officer was dismissed by the Board of Immigration Appeals, without opinion, and his petition for review in the Court of Appeals was dismissed, with one judge dissenting. 2 Cir., 363 F.2d 488. It held that the term 'psychopathic personality,' as used by the Congress in § 212(a)(4), was a term of art intended to exclude homosexuals from entry into the United States. It further found that the term ws not void for vagueness and was, therefore, not repugnant to the Fifth Amendment's Due Process Clause. We granted certiorari, 385 U.S. 927, 87 S.Ct. 285, 17 L.Ed.2d 209, and now affirm.
I.
2
Petitioner, a Canadian national, was first admitted to this country on June 22, 1955, at the age of 21. His last entry was in 1959, at which time he was returning from a short trip to Canada. His mother and stepfather and three of his brothers and sisters live in the United States. In 1963 he applied for citizenship and submitted to the Naturalization Examiner an affidavit in which he admitted that he was arrested in New York in October 1959, on a charge of sodomy, which was later reduced to simple assault and thereafter dismissed on default of the complainant. In 1964, petitioner, at the request of the Government, submitted another affidavit which revealed the full history of his sexual deviate behavior. It stated that his first homosexual experience occurred when he was 14 years of age, some seven years before his entry into the United States. Petitioner was evidently a passive participant in this encounter. His next episode was at age 16 and occurred in a public park in Halifax, Nova Scotia. Petitioner was the active participant in this affair. During the next five years immediately preceding his first entry into the United States petitioner had homosexual relations on an average of three or four times a year. He also stated that prior to his entry he had engaged in heterosexual relations on three or four occasions. During the eight and one-half years immediately subsequent to his entry, and up to the time of his second statement, petitioner continued to have homosexual relations on an average of three or four times a year. Since 1959 petitioner had shared an apartment with a man with whom he had had homosexual relations.
3
The 1964 affidavit was submitted to the Public Health Service for its opinion as to whether petitioner was excludable for any reason at the time of his entry. The Public Health Service issued a certificate in 1964 stating that in the opinion of the subscribing physicians petitioner 'was afflicted with a class A condition, namely, psychopathic personality, sexual deviate' at the time of his admission. Deportation proceedings were then instituted. 'No serious question,' the Special Inquiry Officer found, 'has been raised either by the respondent (petitioner here), his counsel or the psychiatrists (employed by petitioner) who have submitted reports on the respondent as to his sexual deviation.' Indeed, the officer found that both of petitioner's psychiatrists 'concede that the respondent has been a homosexual for a number of years but conclude that by reason of such sexual deviation the respondent is not a psychopathic personality.' Finding against petitioner on the facts, the issue before the officer was reduced to the purely legal question of whether the term 'psychopathic personality' included homosexuals and if it suffered illegality because of vagueness.
II.
4
The legislative history of the Act indicates beyond a shadow of a doubt that the Congress intended the phrase 'psychopathic personality' to include homosexuals such as petitioner.
5
Prior to the 1952 Act the immigration law excluded 'persons of constitutional psychopathic inferiority.' 39 Stat. 875, as amended, 8 U.S.C. § 136(a) (1946 ed.). Begini ng in 1950, a subcommittee of the Senate Committee on the Judiciary conducted a comprehensive study of the immigration laws and in its report found 'that the purpose of the provision against 'persons with constitutional psychopathic inferiority' will be more adequately served by changing that term to 'persons afflicted with psychopathic personality,' and that the classes of mentally defectives should be enlarged to include homosexuals and other sex perverts.' S.Rep. No. 1515, 81st Cong., 2d Sess., p. 345. The resulting legislation was first introduced as S. 3455 and used the new phrase 'psychopathic personality.' The bill, however, contained an additional clause providing for the exclusion of aliens 'who are homosexuals or sex perverts.' As the legislation progressed (now S. 2550 in the 82d Congress), however, it omitted the latter clause 'who are homosexuals or sex perverts' and used only the phrase 'psychopathic personality.' The omission is explained by the Judiciary Committee Report on the bill:
6
'The provisio(n) of S. 716 (one of the earlier bills not enacted) which specifically excluded homosexuals and sex perverts as a separate excludable class does not appear in the instant bill. The Public Health Service has advised that the provision for the exclusion of aliens afflicted with psychopathic personality or a mental defect which appears in the instant bill is sufficiently broad to provide for the exclusion of homosexuals and sex perverts. This change of nomenclature is not to be construed in any way as modifying the intent to exclude all aliens who are sexual deviates.' (Emphasis supplied.) S.Rep. No. 1137, 82d Cong., 2d Sess., p. 9.
7
Likewise a House bill, H.R. 5678, adopted the position of the Public Health Service that the phrase 'psychopathic personality' excluded from entry homosexuals and sex perverts. The report that accompanied the bill shows clearly that the House Judiciary Committee adopted the recommendation of the Public Health Service that 'psychopathic personality' should be used in the Act as a phrase that would exclude from admission homosexuals and sex perverts. H.R. Rep. No. 1365, 82d Cong., 2d Sess., U.S.Code Cong. & Admin. News 1952, p. 1653. It quoted at length, and specifically adopted, the Public Health Service report which recommended that the term 'psychopathic personality' be used to 'specify such types of pathologic behavior as homosexuality or sexual perversion.' We, therefore, conclude that the Congress used the phrase 'psychopathic personality' not in the clinical sense, but to effectuate its purpose to exclude from entry all homosexuals and other sex perverts.
8
Petitioner stresses that only persons afflicted with psychopathic personality are excludable. This, he says, is 'a condition, physical or psychiatric, which may be manifested in different ways, including sexual behavior.' Petitioner's contention must fall by his own admissions. For over six years prior to his entry petitioner admittedly followed a continued course of homosexual conduct. The Public Health Service doctors found and certified that at the time of his entry petitioner 'was afflicted with a class A condition, namely, psychopathic personality, sexual deviate * * *.' It was stipulated that if these doctors were to appear in the case they would testify to this effect and that 'no useful purpose would be served by submitting this additional psychiatric material (furnished by petitioner's doctors) to the United States Public Health Service * * *.' The Government clearly established that petitioner was a homosexual at entry. Having substantial support in the record, we do not now disturb that finding, especially since petitioner admitted being a homosexual at the time of his entry. The existence of this condition over a continuous and uninterrupted period prior to and at the time of petitioner's entry clearly supports the ultimate finding upon which the order of deportation was based.
III.
9
Petitioner says, even so, the section as consru ed is constitutionally defective because it did not adequately warn him that his sexual affliction at the time of entry could lead to his deportation. It is true that this Court has held the 'void for vagueness' doctrine applicable to civil as well as criminal actions. See Small Co. v. American Sugar Ref. Co., 267 U.S. 233, 239, 45 S.Ct. 295, 297, 69 L.Ed. 589 (1925). However, this is where 'the exaction of obedience to a rule or standard * * * was so vague and indefinite as really to be no rule or standard at all. * * *' In short, the exaction must strip a participant of his rights to come within the principle of the cases. But the 'exaction' of § 212(a)(4) never applied to petitioner's conduct after entry. The section imposes neither regulation of nor sanction for conduct. In this situation, therefore, no necessity exists for guidance so that one may avoid the applicability of the law. The petitioner is not being deported for conduct engaged in after his entry into the United States, but rather for characteristics he possessed at the time of his entry. Here, when petitioner first presented himself at our border for entrance, he was already afflicted with homosexuality. The pattern was cut, and under it he was not admissible.
10
The constitutional requirement of fair warning has no applicability to standards such as are laid down in § 212(a)(4) for admission of aliens to the United States. It has long been held that the Congress has plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden. See The Chinese Exclusion Case (Chae Chan Ping v. United States), 130 U.S. 581, 9 S.Ct. 623, 32 L.Ed. 1068 (1889). Here Congress commanded that homosexuals not be allowed to enter. The petitioner was found to have that characteristic and was ordered deported. The basis of the deportation order was his affliction for a long period of time prior to entry, i.e., six and one-half years before his entry. It may be, as some claim, that 'psychopathic personality' is a medically ambiguous term, including several separate and distinct afflictions. Noyes, Modern Clinical Psychiatry 410 (3d ed. 1948). But the test here is what the Congress intended, not what differing psychiatrists may think. It was not laying down a clinical test, but an exclusionary standard which it declared to be inclusive of those having homosexual and perverted characteristics. It can hardly be disputed that the legislative history of § 212(a)(4) clearly shows that Congress so intended.
11
But petitioner says that he had no warning and that no interpretation of the section had come down at the time of his 1955 entry. Therefore, he argues, he was unaware of the fact that homosexual conduct engaged in after entry could lead to his deportation. We do not believe that petitioner's post-entry conduct is the basis for his deportation order. At the time of his first entry he had continuously been afflicted with homosexuality for over six years. To us the statute is clear. It fixes 'the time of entry' as the crucial date and the record shows that the findings of the Public Health Service doctors and the Special Inquiry Officer all were based on that date. We find no indication that the post-entry evidence was of any consequence in the ultimate decision of the doctors, the hearing officer or the court. Indeed, the proof was uncontradicted as to petitioner's characteristic at the time of entry and this brought him within the excludable class. A standard applicable solely to time of entry could hardly be vague as to post-entry conduct.
12
The petitioner raises other points, including the claim that an 'arriving alien' under the Act is entitled to medical examination. Since he is not an 'arriving alien' subject to exclusion, but a deportable alien within an excludable class—who through error was permitted entry—it is doubtful if the requirement would apply. But we need not go into the question since petitioner was twice offere e xamination and refused to submit himself. He can hardly be heard to complain now. The remaining contentions are likewise without merit.
13
Affirmed.
14
Mr. Justice BRENNAN dissents for the reasons stated by Judge Moore of the Court of Appeals, 2 Cir., 363 F.2d 488, 496—499.
15
Mr. Justice DOUGLAS, with whom Mr. Justice FORTAS concurs, dissenting.
16
The term 'psychopathic personality' is a treacherous one like 'communist' or in an earlier day 'Bolshevik.' A label of this kind when freely used may mean only an unpopular person. It is much too vague by constitutional standards for the imposition of penalties or punishment.
17
Cleckley defines 'psychopathic personality' as one who has the following characteristics:
18
(1) Superficial charm and good 'intelligence.' (2) Absence of delusions and other signs of irrational 'thinking.' (3) Absence of 'nervousness' or psychoneurotic manifestations. (4) Unreliability. (5) Untruthfulness and insincerity. (6) Lack of remorse or shame. (7) Inadequately motivated antisocial behavior. (8) Poor judgment and failure to learn by experience. (9) Pathologic egocentricity and incapacity for love. (10) General poverty in major affective reactions. (11) Specific loss of insight.
19
(12) Unresponsiveness in general interpersonal relations. (13) Fantastic and uninviting behavior with drink and sometimes without. (14) Suicide rarely carried out. (15) Sex life impersonal, trivial and poorly integrated. (16) Failure to follow any life plan. Cleckley, The Mask of Sanity 238—255 (1941).
20
The word 'psychopath' according to some means 'a sick mind.' Guttmacher & Weihofen 86, Psychiatry and the Law (1952):
21
'In the light of present knowledge, most of the individuals called psychopathic personalities should probably be considered as suffering from neurotic character disorders. They are, for the most part, unhappy persons harassed by tension and anxiety, who are struggling against unconscious conflicts which were created during the very early years of childhood. The nature and even the existence of these conflicts which drive them restlessly on are unknown to them. When the anxiety rises to a certain pitch, they seek relief through some antisocial act. The frequency with which this pattern recurs in the individual is dependent in part upon the intensity of the unconscious conflict, upon the tolerance for anxiety, and upon chance environmental situations which may heighten or decrease it. One of the chief diagnostic criteria of this type of neurotically determined delinquency is the repetitiveness of the pattern. The usual explanation, as for example, that the recidivistic check-writer has just 'got in the habit of writing bad checks' is meaningless.' Id., at 88—89.
22
Many experts think that it is a meaningless designation. 'Not yet is there any common agreement * * * as to classification or * * * etiology.' Noyes, Modern Clinical Psychiatry 410 (3d ed. 1948). 'The only conclusion that seems warrantable is that, at some time or other and by some reputable authority, the term psychopathic personality has been used to designate every conceivable type of abnormal character.' Curran & Mallinson, Psychopathic Personality, 90 J. Mental Sci. 266, 278. See also Guttmacher, Diagnosis and Etiology of Psychopathic Personalities as Perceived in Our Time, in Current Problems in Psychiatric Diagnosis 139, 154 (Hoch & Zubin ed. 1953); Tappan, Sexual Offences and the Treatment of Sexual Offenders in the United States, in Sexual Offences 500, 507 (Radzinowicz ed. 1957). It is much too treacherously vague a term to allow the high penalty of deportation to turn on it.
23
When it comes to sex, the problem is complex. Those 'who fail to reach sexual maturity (hetero-sexuality), and who remain at a narcissistic or homosexual stage' are the products 'of heredity, of glandular dysfunction, (or) of environmental circumstances.' Henderson, Psychopathic Constitution and Criminal Behaviour, in Mental Abnormality and Crime 105, 114 (Radzinowicz & Turner ed. 194).
24
The homosexual is one, who by some freak, is the product of an arrested development:
25
'All people have originally bisexual tendencies which are more or less developed and which in the course of time normally deviate either in the direction of male or female. This may indicate that a trace of homosexuality, no matter how weak it may be, exists in every human being. It is present in the adolescent stage, where there is a considerable amount of undifferentiated sexuality.' Abrahamsen, Crime and the Human Mind 117 (1944).
26
Many homosexuals become involved in violations of laws; many do not. Kinsey reported:
27
'It is not possible to insist that any departure from the sexual mores, or any participation in socially taboo activities, always, or even usually, involves a neurosis or psychosis, for the case histories abundantly demonstrate that most individuals who engage in taboo activities make satisfactory social adjustments. There are, in actuality, few adult males who are particularly disturbed over their sexual histories. Psychiatrists, clinical psychologists, and others who deal with cases of maladjustment, sometimes come to feel that most people find difficulty in adjusting their sexual lives; but a clinic is no place to secure incidence figures. The incidence of tuberculosis in a tuberculosis sanitarium is no measure of the incidence of tuberculosis in the population as a whole; and the incidence of disturbance over sexual activities, among the persons who come to a clinic, is no measure of the frequency of similar disturbances outside of clinics. The impression that such 'sexual irregularities' as 'excessive' masturbation, pre-marital intercourse, responsibility for a pre-marital pregnancy, extra-marital intercourse, mouth-genital contacts, homosexual activity, or animal intercourse, always produce psychoses and abnormal personalities is based upon the fact that the persons who go to professional sources for advice are upset by these things.
28
'It is unwarranted to believe that particular types of sexual behavior are always expressions of psychoses or neuroses. In actuality, they are more often expressions of what is biologically basic in mammalian and anthropoid behavior, and of a deliberate disregard for social convention. Many of the socially and intellectually most significant persons in our histories, successful scientists, educators, physicians, clergymen, business men, and persons of high position in governmental affairs, have socially taboo items in their sexual histories, and among them they have accepted nearly the whole range of so-called sexual abnormalities. Among the socially most successful and personally best adjusted persons who have contributed to the present study, there are some whose rates of outlet are as high as those in any case labelled nymphomania or satyriasis in the literature, or recognized as such in the clinic.' Kinsey, Sexual Behavior in the Human Male 201—202 (1948).
29
It is common knowledge that in this century homosexuals have risen high in our own public service—both in Congress and in the Executive Branch—and have served with distinction. It is therefore not credible that Congress wanted to deport everyone and anyone who was a sexual deviate, no matter how blameless his social conduct had been nor how creative his work nor how valuable his contribution to society. I agree with Judge Moore, dissenting below, that the legislative history should not be read as imputing to Congress a purpose to classify under the heading 'psychopathic personality' every person who had ever had a homosexual experience:
30
'Professor Kinsey estimated that 'at least 37 per cent' of the American male population has at least one homosexual experience, defined in terms of physical contact to the point of orgasm, between the beginning of adolescence and old age.1 Kinsey, Pomeroy & Martin, Sexual Behavior in the Human Male 623 (1948). Earlier estimates had ranged from one per centto 100 per cent. Id., at 616—622. The sponsors of Britain's current reform bill on homosexuality have indicated that one male in 25 is a homosexual in Britain.2 To label a group so large 'excludable aliens' would be tantamount to saying that Sappho, Leonardo da Vinci, Michelangelo, Andre Gide, and perhaps even Shakespeare, were they to come to life again, would be deemed unfit to visit our shores.3 Indeed, so broad a definition might well comprise more than a few members of legislative bodies.' 2 Cir., 363 F.2d 488, 497—498.
31
The Public Health Service, from whom Congress borrowed the term 'psychopathic personality' (H.R.Rep. No. 1365, 82d Cong., 2d Sess., 46—47, U.S.Code Cong. & Admin. News 1952, p. 1653) admits that the term is 'vague and indefinite.' Id., at 46.
32
If we are to hold, as the Court apparently does, that any acts of homosexuality suffice to deport the alien, whether or not they are part of a fabric of antisocial behavior, then we face a serious question of due process. By that construction a person is judged by a standard that is almost incapable of definition. I have already quoted from clinical experts to show what a wide range the term 'psychopathic personality' has. Another expert4 classifies such a person under three headings:
33
Acting: (1) inability to withstand tedium, (2) lack of a sense of responsibility, (3) a tendency to 'blow up' under pressure, (4) maladjustment to law and order, and (5) recidivism.
34
Feeling: they tend to (1) be emotionally deficient, narcissistic, callous, inconsiderate, and unremorseful, generally projecting blame on others, (2) have hair-trigger emotions, exaggerated display of emotion, and be irritable and impulsive, (3) be amoral (socially and sexually) and (4) worry, but do nothing about it.
35
Thinking: they display (1) defective judgment, living for the present rather than for the fuur e, and (2) inability to profit from experience, i.e., they are able to realize the consequences intelligently, but not to evaluate them.
36
We held in Jordan v. DeGeorge, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886, that the crime of a conspiracy to defraud the United States of taxes involved 'moral turpitude' and made the person subject to deportation. That, however, was a term that has 'deep roots in the law.' Id., at 227, 71 S.Ct. at 705. But the grab bag 'psychopathic personality'—has no 'deep roots' whatsoever.5 Caprice of judgment is almost certain under this broad definition. Anyone can be caught who is unpopular, who is off-beat, who is nonconformist.
37
Deportation is the equivalent to banishment or exile. Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L.Ed. 433. Though technically not criminal, it practically may be. The penalty is so severe that we have extended to the resident alien the protection of due process. Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616. Even apart from deportation cases, we look with suspicion at those delegations of power so broad as to allow the administrative staff the power to formulate the fundamental policy. See Watkins v. United States, 354 U.S. 178, 203—205, 77 S.Ct. 1173, 1187—1188, 1 L.Ed.2d 1273; Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204. In the Watkins case we were protecting important First Amendment rights. In the Kent case we were protecting the right to travel, an important ingredient of a person's 'liberty' within the meaning of the Fifth Amendment. We deal here also with an aspect of 'liberty' and the requirements of due process. They demand that the standard be sufficiently clear as to forewarn those who may otherwise be entrapped and to provide full opportunity to conform. 'Psychopathic personality' is so broad and vague as to be hardly more than an epithet. The Court seeks to avoid this question by saying that the standard being applied relates only to what petitioner had done prior to his entry, not to his postentry conduct. But at least half of the questioning of this petitioner related to his postentry conduct.
38
Moreover, the issue of deportability under § 212(a) of the Immigration and Nationality Act of 1952 turns on whether petitioner is 'afflicted with psychopathic personality.' On this I think he is entitled to a hearing to satisfy both the statute and the requirement of due process.
One psychiatrist reported:
39
'On psychiatric examination of Mr. Boutilier, there was no indication of delusional trend or hallucinatory phenomena. He is not psychotic. From his own account, he has a psychosexual problem but is beginning treatment for this disorder. Diagnostically, I would consider him as having a Character Neurosis, believe that the prognosis in therapy is reasonably good and do not think he represents any risk of decompensation into a dependent psychotic reaction nor any potential for frank criminal activity.'
40
Another submitted a long report ending as follows:
41
'The patient's present difficulties obviously weigh very heavily upon him. He feels as if he has made his life in this country and is deeply disturbed at the prospect of being cut off from the life he has created for himself. He talks frankly about himself. What emerged out of the interview was not a picture of a psychopath but that of a dependent, immature young man with a conscience, an awareness of the feelings of others and a sense of personal honesty. His sexual structure still appears fluid and immature so that he moves from homosexual to heterosexual interests as well as abstinence with almost equal facility. His homosexual orientation seems secondary to a very constricted, dependent personality pattern rather than occurring in the context of a psychopathic personality. My own feeling is that his own need to fit in and be accepted is so great that it far surpasse h is need for sex in any form.
42
'I do not believe that Mr. Boutilier is a psychopath.'
43
In light of these statements, I cannot say that it has been determined that petitioner was 'afflicted' in the statutory sense either at the time of entry or at present. 'Afflicted' means possessed or dominated by. Occasional acts would not seem sufficient. 'Afflicted' means a way of life, an accustomed pattern of conduct. Whatever disagreement there is as to the meaning of 'psychopathic personality,' it has generally been understood to refer to a consistent, lifelong pattern of behavior conflicting with social norms without accompanying guilt. Cleckley, supra, at 29.6 Nothing of that character was shown to exist at the time of entry. The fact that he presently has a problem, as one psychiatrist said, does not mean that he is or was necessarily 'afflicted' with homosexuality. His conduct is, of course, evidence material to the issue. But the informed judgment of experts is needed to make the required finding. We cruelly mutilate the Act when we hold otherwise. For we make the word of the bureaucrat supreme, when it was the expertise of the doctors and psychiatrists on which Congress wanted the administrative action to be dependent.
44
The bill which was finally enacted, H.R. 5678, provided for exclusion of '(a) liens afflicted with psychopathic personality,' but did not provide for exclusion of aliens who are homosexuals or sex perverts, as had its predecessors. The House Report, H.R.Rep. No. 1365, which accompanied the bill incorporated the full report of the Public Health Service (H.R.Rep. No. 1365, 82d Cong., 2d Sess., at 46—48) and indicated that the 'recommendations contained in the * * * report have been followed.' Id., at 48.
45
This legislative history indicates that the term 'afflicted with psychopathic personality' was used in a medical sense and was meant to refer to lifelong patterns of action that are pathologic and symptomatic of grave underlying neurosis or psychosis. Homosexuality and sex perversion, as a subclass, are limited to the same afflictions.
*
'SEC. 212. (a) Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:
'(4) Aliens afflicted with psychopathic personality, epilepsy, or a mental defect * * *.'
Section 241(a)(1) of the Immigration and Nationality Act, 66 Stat. 204, 8 U.S.C. § 1251(a)(1), provides that: 'Any alien in the United States * * * shall, upon the order of the Attorney General, be deported who—(1) at the time of entry was within one or more of the classes of aliens excludable by the law existing at the time of such entry * * *.'
1
'Homosexual activity in the human male is much more frequent than is ordinarily realized * * *. In the youngest unmarried group, more than a quarter (27.3%) of the males have some homosexual activity to the point of orgasm * * *. The incidence among these single males rises in successive age groups until it reaches a maximum of 38.7 per cent between 36 and 40 years of age.
'High frequencies do not occur as often in the homosexual as they do in some other kinds of sexual activity * * *. Populations are more homogeneous in regard to this outlet. This may reflect the difficulties involved in having frequent and regular relations in a socially taboo activity. Nevertheless, there are a few of the younger adolescent males who have homosexual frequencies of 7 or more per week, and between 26 and 30 the maximum frequencies run to 15 per week. By 50 years of age the most active individual is averaging only 5.0 per week.
'For single, active populations, the mean frequencies of homosexual contacts * * * rise more or less steadily from near once per week * * * for the younger adolescent boys to nearly twice as often * * * for males between the ages of 31 and 35. They stand above once a week through age 50.' Kinsey, Sexual Behavior in the Human Male 259—261 (1948).
2
Report, Committee on Homosexual Offenses and Prostitution (1957).
3
Sigmund Freud wrote in 1935:
'Homosexuality is assuredly no advantage, but it is nothing to be ashamed of, no vice, no degradation, it cannot be classified as an illness; we consider it to be a variation of the sexual function produced by a certain arrest of sexual development. Many highly respectable individuals of ancient and modern times have been homosexuals, several of the greatest men among them (Plato, Michelangelo, Leonardo da Vinci, etc.). It is a great injustice to persecute homosexuality as a crime, and cruelty too. If you do not believe me, read the books of Havelock Ellis.' Ruitenbeek, The Problem of Homosexuality in Modern Society 1 (1963).
4
Caldwell, Constitutional Psychopathic State (Psychopathic Personality) Studies of Soldiers in the U.S. Army, 3 J.Crim. Psychopathology 171—172 (1941).
5
See Lindman & McIntyre, The Mentally Disabled and the Law 299 (1961).
6
There is good indication that Congress intended the term 'afflicted with psychopathic personality' to refer only to those individuals demonstrating 'developmental defects or pathological trends in the personality structure manifest(ed) by lifelong patterns of action or behavior * * *.' U.S. Public Health Service, Report on Medical Aspects of H.R. 2379, U.S.Code Cong. & Admin. News 1700 (1952). The provision for exclusion of persons afflicted with psychopathic personality replaced the section of the 1917 Act, 39 Stat. 875, providing for the exclusion of 'persons of constitutional psychopathic inferiority.' The purpose of that clause was 'to keep out 'tainted blood,' that is, 'persons who have medical traits which would harm the people of the United States if those traits were introduced in this country, or if those possessing those traits were added to those in this country who unfortunately are so afflicted." The Immigration and Naturalization Systems of the United States, S.Rep. No. 1515, 81st Cong., 2d Sess., 343 (1950). The Senate subcommittee which had been charged with making an investigation of the immigration laws concluded that 'the exclusion of persons with 'constitutional psychopathic inferiority' was aimed at keeping out of the country aliens with a propensity to mental aberration, those with an inherent likelihood of becoming mental cases, as indicated by their case history.' Ibid. It concluded that 'the purpose of the provision against 'persons with constitutional psychopathic inferiority' will be more adequately served by changing that term to 'persons afflicted with psychopathic personality,' and that the classes of mentally defectives should be enlarged to include homosexuals and other sex perverts.' Id., at 345. Senate Report 1515 accompanied Senate bill 3455, which included among excludable aliens '(a)liens afflicted with psychopathic personality,' and '(a)liens who are homosexuals or sex perverts.' The bill was redrafted and became S. 716, with its counterpart in the House being H.R. 2379; the material provisions remained the same as in S. 3455. In response to the House's request for its opinion on the new provisions, the Public Health Service noted that:
'The conditions classified within the group of psychopathic personalities are, in effect, disorders of the personality. They are characterized by developmental defects or pathological trends in the personality structure manifest by lifelong patterns of action or behavior, rather than by mental or emotional symptoms. Individuals with such a disorder may manifest a disturbance of intrinsic personality patterns, exaggerated personality trends, or are persons ill primarily in terms of society and the prevailing culture. The latter or sociopathic reaction a re frequently symptomatic of a severe underlying neurosis of psychosis and frequently include those groups of individuals suffering from addiction or sexual deviation.' U.S.Code Cong. & Admin.News 1700 (1952).
The letter setting forth the views of the Public Health Service went on to say, with respect to the exclusion of 'homosexuals or sex perverts':
'Ordinarily, persons suffering from disturbances in sexuality are included within the classification of 'psychopathic personality with pathologic sexuality.' This classification will specify such types of pathologic behavior as homosexuality or sexual perversion which includes sexual sadism, fetishism, transvestism, pedophilia, etc.' Id., at 1701.
| 12
|
387 U.S. 97
87 S.Ct. 1544
18 L.Ed.2d 643
Earle C. MOODY et al., Appellants,v.Richmond M. FLOWERS et al. BOARD OF SUPERVISORS OF SUFFOLK COUNTY, NEW YORK et al., Appellants, v. I. William BIANCHI, Jr., et al.
Nos. 624, 491.
Argued April 17 and 18, 1967.
Decided May 22, 1967.
No. 624:
[Syllabus from pages 97-98 intentionally omitted]
Charles S. Rhyne, Washington, D.C., for appellants.
Truman Hobbs, Montgomery, Ala., for appellees.
No. 491:
Stanley S. Corwin, Greenport, N.Y., for appellants.
Frederick Block, Port Jefferson Station, N.Y., and Richard C. Cahn, Huntington, N.Y., for appellees.
Nos. 624, 491:
Francis X. Beytagh, Jr., Cleveland, Ohio, for the United States, as amicus curiae, pro hac vice, by special leave of Court.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
The threshold question in these cases is whether this Court has jurisdiction under 28 U.S.C. § 1253 on direct appeals from the decisions of the respective District Courts purportedly convened pursuant to 28 U.S.C. § 2281. The answer to that question in turn depends upon whether the three-judge courts in these cases were properly convened.
2
In No. 624, appellants attack the validity of an Alabama statute (Ala.Laws 1957, Act No. 9 p. 30) prescribing the apportionment and districting scheme for electing members of the Houston County Board of Revenue and Control. Under the statute, the Board consists of five members, each elected by the qualified electors of the district of which he is a resident. The challenged statute prescribes the areas constituting the various districts. The action is brought against the appellees, including some state officials, seeking a declaration that the statute is invalid and an injunction prohibiting its enforcement, and requesting that the court order at-large elections until the State Legislature redistricts and reapportions the Board on a population basis. The theory is that the apportionment and districting scheme results in the over representation of certain areas and the under-representation of others. The complaint also requested the convening of a three-judge court. A three-judge court was convened and the complaint was dismissed. D.C., 256 F.Supp. 195. We noted probable jurisdiction, 385 U.S. 966, 87 S.Ct. 499, 17 L.Ed.2d 431.
3
In No. 491, appellees brought an action against appellants, members of the Suffolk County Board of Supevi sors, seeking a declaration that so much of § 203 of the Suffolk County Charter (N.Y. Laws 1958, c. 278) as provides that each supervisor shall have one vote as a member of the Suffolk County Board of Supervisors violates the Fourteenth Amendment and an injunction prohibiting the appellants from acting as a Board of Supervisors unless and until a change in their voting strength is made, and requesting the convening of a three-judge court. The 10 towns of Suffolk County, New York, elect, by popular vote, a supervisor every two years. The supervisor is the town's representative on the Suffolk County Board of Supervisors. Suffolk County Charter § 201. And, each supervisor is entitled to one vote on the County Board of Supervisors. Suffolk County Charter § 203. Pursuant to Art. 9, §§ 1 and 2, of the New York Constitution, the State Legislature approved a charter for the county containing, inter alia, the above provisions. N.Y. Laws 1958, c. 278.
4
Appellees claim that granting each supervisor one vote regardless of the population of the town which elected him results in an over representation of the towns with small populations and underrepresentation of towns with large populations.
5
A three-judge court was convened and it declared § 203 of the Suffolk County Charter invalid because in conflict with the Equal Protection Clause of the Fourteenth Amendment, and ordered the Board to submit to the county electorate a plan for reconstruction of the Board so as to insure voter equality. D.C., 256 F.Supp. 617. We noted probable jurisdiction. Sailors v. Board of Education of County of Kent, 385 U.S. 966, 87 S.Ct. 499, 17 L.Ed.2d 431.
6
This Court has jurisdiction of these direct appeals under 28 U.S.C. § 1253 only if the respective actions were 'required * * * to be heard and determined by a district court of three judges.' Section 2281 of 28 U.S.C. requires that a three-judge court be convened in any case in which a preliminary or permanent injunction is sought to restrain 'the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute * * *.' The purpose of § 2281 is 'to prevent a single federal judge from being able to paralyze totally the operation of an entire regulatory scheme * * * by issuance of a broad injunctive order' (Kennedy v. Mendoza-Martinez, 372 U.S. 144, 154, 83 S.Ct. 554, 560, 9 L.Ed.2d 644) and to provide 'procedural protection against an improvident state-wide doom by a federal court of a state's legislative policy.' Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 483, 85 L.Ed. 800. In order for § 2281 to come into play the plaintiffs must seek to enjoin state statutes 'by whatever method they may be adopted, to which a State gives her sanction * * *.' American Federation of Labor v. Watson, 327 U.S. 582, 592—593, 66 S.Ct. 761, 766, 90 L.Ed.2d 873.
7
The Court has consistently construed the section as authorizing a three-judge court not merely because a state statute is involved but only when a state statute of general and statewide application is sought to be enjoined. See, e.g., Ex parte Collins, 277 U.S. 565, 48 S.Ct. 585, 72 L.Ed. 990; Ex parte Public National Bank, of New York, 278 U.S. 101, 49 S.Ct. 43, 73 L.Ed. 202; Rorick v. Board of Commissioners, of Everglades Drainage Dist., 307 U.S. 208, 59 S.Ct. 808, 83 L.Ed. 1242; City of Cleveland v. United States, 323 U.S. 329, 332, 65 S.Ct. 280, 281, 89 L.Ed. 274; Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 227—228, 84 S.Ct. 1226, 1231—1232, 12 L.Ed.2d 256. The term 'statute' in § 2281 does not encompass local ordinances or resolutions. The officer sought to be enjoined must be a state officer; a three-judge court need not be convened where the action seeks to enjoin a local officer (Ex parte Collins, supra; Rorick v. Board of Commissioners, supra) unless he is functioning pursuant to a statewide policy and performing a state function. Spielman Motor Sales Co. v. Dodge, 295 .S . 89, 55 S.Ct. 678, 79 L.Ed. 1322. Nor does the section come into operation where an action is brought against state officers performing matters of purely local concern. Rorick v. Board of Commissioners, supra. And, the requirement that the action seek to enjoin a state officer cannot be circumvented 'by joining, as nominal parties defendant, state officers whose action is not the effective means of the enforcement or execution of the challenged statute.' Wilentz v. Sovereign Camp, WOW, 306 U.S. 573, 579—580, 59 S.Ct. 709, 713, 83 L.Ed. 994.
8
In No. 624, the constitutional attack was directed to a state statute dealing with matters of local concern—the apportionment and districting for one county's governing board. The statute is not a statute of statewide application, but relates solely to the affairs of one county in the State. The fact that state officers were named as defendants cannot change the result.
9
It is said that there is enough similarity between this law and the laws governing other Alabama counties as to give this case a statewide interest. It is said that 29 counties having a city of consequence located within their borders have the same 'crazy quilt' of malapportionment to insure rural voters' control. It is said that 32 other counties provide for election of county board members at large but with a local residence requirement which insures rural control. It is said that six rural counties elect their governing bodies on an at-large basis with no local residence requirement. We indicate no views on the merits. But we suggest that even a variety of different devices, working perhaps to the same end, still leaves any one device local rather than statewide for purposes of the statutory three-judge court.
10
In No. 491, the constitutional attack is directed at provisions of a county charter providing that the county governing board shall be composed of the supervisors of the several towns and that each supervisor shall have one vote. The county charter is similar to a local ordinance, a challenge to which cannot support a three-judge court. The fact that the charter was enacted into state law does not change the result. The charter provisions plainly relate only to one county and the statute enacting the charter is similarly limited. It does not remotely resemble a state statute of general, statewide application. It is a statute dealing solely with matters of local concern. Nor was the action brought against 'state officers' within the meaning of the statute; it was brought to enjoin local officers acting solely with reference to local matters.
11
It is argued, however, that the alleged malapportionment reflected in the charter is also reflected in § 150 and § 153 of the New York County Law, McKinney's Consol.Laws c. 11, which does have a statewide application, and that the provisions of the charter here challenged are actually interchangeable with § 150 and § 153 of the County Law.1 It is also argued that to get rid of this alleged malapportionment the Court would have to declare unconstitutional not only the provisions of the charter but also § 150 and s 153 of the County Law. The complaint, however, challenges only the charter. It makes no challenge of any statewide law. And the three-judge court considered it as an attack only on the charter. D.C., 256 F.Supp. 617.2
12
We therefore do not accept the invitation to get into the niceties of the relationship between the provisions of the charter and the New York County Law, but take the complaint as we find it for purposes of the jurisdictional question, and conclude on the face of the complaint that we have only an alleged malapportionment under a county charter.
13
Since the 'statute' in each of these cases is one of limited application, concerning only a particular county involved in the litigation, a three-judge court was improperly convened. Appeals should, therefore, have been taken to the respective Courts of Appeals, not to this Court. Since the time for perfecting those appeals may have passed, we vacate the judgments and remand the causes to the court which heard each case so that they may enter a fresh decree from which appellants may, if they wish, perfect timely appeals to the respective Courts of Appeals. Phillips v. United States, supra, 312 at 254, 61 S.Ct. 480.
14
Decrees vacated.
1
Section 150 of the N.Y. County Law (1950) provides that '(t)he supervisors of the several cities and towns in each county * * * shall constitute the board of supervisors of the county' and § 153, subd. 4 provides for a majority vote of the supervisors with respect to actions of the Board of Supervisors where 'no proportion of the voting strength for such action is otherwise prescribed.' But § 2 of the N.Y. County Law provides that the provisions of the law shall not apply 'in so far as they are in conflict with or in limitation of a provision of any alternative form of county government * * * adopted by a county pursuant to section two of article nine of the constitution, or an * * * county government law or civil divisions act enacted by the legislature and applicable to such county * * *, or in conflict with any local law * * * adopted by a county under an optional or alternative form of county government * * * unless a contrary intent is expressly stated in (the law).'
2
And see Bianchi v. Griffing, D.C., 238 F.Supp. 997, where the three-judge court in this case denied the motion to dismiss and denied the motion for an injunction against the continued operation of the Board, pending legislative or other political action to correct the alleged malapportionment.
| 01
|
387 U.S. 167
87 S.Ct. 1526, 1530
18 L.Ed.2d 704
The TOILET GOODS ASSOCIATION, Inc., et al., Petitioners,v.John W. GARDNER, Secretary of Health, Education, and Welfare et al. ABBOTT LABORATORIES et al., Petitioners, v. John W. GARDNER, Secretary of Health, Education, and Welfare et al. John W. GARDNER, Secretary of Health, Education, and Welfare et al., Petitioners, v. The TOILET GOODS ASSOCIATION, Inc., et al.
Nos. 336, 39, 438.
Supreme Court of the United States
Decided May 22, 1967, May 29, 1967.
Nathan Lewin, Washington, D.C., for petitioners.
Edward J. Ross, New York City, for respondents.
Mr. Justice HARLAN delivered the opinion of the Court.
1
In Toilet Goods Assn. v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697, we affirmed a judgment of the Court of Appeals for the Second Circuit holding that judicial review of a regulation concerning inspection of cosmetics factories was improper in a pre-enforcement suit for injunctive and declaratory judgment relief. The present case is brought here by the Government seeking review of the Court of Appeals' further holding that review of three other regulations in this type of action was proper. 360 F.2d 677. We likewise affirm.
2
For reasons stated in our opinion in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 68, we find nothing in the Federal Food, Drug, and Cosmetic Act, (52 Stat. 1040, as amended), 21 U.S.C. § 301 et seq., that precludes resort to the courts for preenforcement relief under the Administrative Procedure Act, 5 U.S.C. §§ 701—704 (1964 ed., Supp. II), and the Declaratory Judgment Act, 28 U.S.C. § 2201. And for reasons to follow, we believe the Court of Appeals was correct in holding that the District Court did not err when it refused to dismiss the complaint with respect to these regulations.
3
The regulations challenged here were promulgated under the Color Additive Amendments of 1960, 74 Stat. 397, 21 U.S.C. §§ 321 376. These statutory provisions, in brief, allow the Secretary of Health, Education, and Welfare and his delegate, the Commissioner of Food and Drugs, 22 Fed.Reg. 1051, 25 Fed.Reg. 8625, to prescribe conditions for the use of color additives in foods, drugs, and cosmetics. The Act requires clearance of every color additive in the form of a regulation prescribing conditions for use of that particular additive, and also certification of each 'batch' unless exempted by regulation. A color additive is defined as 'a dye, pigment, or other substance * * * (which) when added or applied to a food, drug, or cosmetic, or to the human body or any part thereof, is capable (alone or through reaction with other substance) of imparting color thereto * * *,' 21 U.S.C. § 321(t)(1).
4
Under his general rule-making power, § 701(a), 21 U.S.C. § 371(a), the Commissioner amplified the statutory definition to include as color additives all diluents, that is, 'any component of a color additive mixture that is not of itself a color additive and has been intentionally mixed therein to facilitate the use of the mixture in coloring foods, drugs or cosmetics or in coloring the human body.' 21 CFR § 8.1(m). By including all diluents as color additives, the Commissioner in respondents' view unlawfully expanded the number of items that must comply with the premarketing clearance procedure.
5
The Commissioner also included as a color additive within the coverage of the statute any 'substance that, when applied to the human body results in coloring * * * unless the function of coloring is purely incidental to its intended use, such as in the case of deodorants. Lipstick, rouge, eye makeup colors, and related cosmetics intended for coloring the human body are 'color additives." 21 CFR § 8.1(f). Respondents alleged that in promulgating this regulation the Commissioner again impermissibly expanded the reach of the statute beyond the clear intention of Congress.
6
A third regulation challenged by these respondents concerns the statutory exemption for hair dyes that conform to a statutory requirement set out in § 601(e), 21 U.S.C. § 361(e). That requirement provides that hair dyes are totally exempt from coverage of the statute if they display a certain cautionary notice on their labels prescribing a 'patch test' to determine whether the dye will cause skin irritation on the particular user. The Commissioner's regulation recognizes that the exemption applies to the Color Additive Amendments, but goes on to declare: 'If the poisonous or deleterious substance in the 'hair dye' is one to which the caution is inapplicable and for which patch-testing provides no safeguard, the exemption does not apply; nor does the exemption extend to the poisonous or deleterious diluents that may be introduced as wetting agents, hair conditioners, emulsifiers, or other components in a color shampoo, rinse, tint, or similar dual-purpose cosmetics that alter the color of the hair.' 21 CFR § 8.1(u).
7
Respondents contend that this regulation too is irreconcilable with the statute: whereas the statute grants an across-the-board exemption to all hair dyes meeting the patch-test notice requirement, the regulation purports to limit that exemption to cover only those dyes as to which the test is 'effective.' Moreover, it is said, the regulation appears to limit the exemption only to the coor ing ingredient of the dye, and to require clearance for all other components of a particular hair dye.
8
We agree with the Court of Appeals that respondents' challenge to these regulations is ripe for judicial review under the standards elaborated in Abbott Laboratories v. Gardner, supra, namely the appropriateness of the issues for judicial determination and the immediate severity of the regulations' impact upon the plaintiffs.
9
The issue as framed by the parties is a straightforward legal one: what general classifications of ingredients fall within the coverage of the Color Additive Amendments? Both the Government and the respondents agree that for any color additive, distribution is forbidden unless the additive is (1) listed in a Food and Drug Administration regulation as safe for use under prescribed conditions, and (2) comes from a 'certified' batch, unless specifically exempted from the certification requirement. The only question raised is what sort of items are 'color additives.' The three regulations outlined above purport to elaborate the statutory definition; they include within the statutory term certain classes of items, e.g., diluents, finished cosmetics, and hair dyes, that respondents assert are not within the purview of the statute at all. We agree with the District Court and the Court of Appeals that this is not a situation in which consideration of the underlying legal issues would necessarily be facilitated if they were raised in the context of a specific attempt to enforce the regulations.1 Rather, 'to the extent that they purport to apply premarketing requirements to broad categories like finished products and non-coloring ingredients and define the hair-dye exemption, they appear, prima facie, to be susceptible of reasoned comparison with the statutory mandate without inquiry into factual issues that ought to be first ventilated before the agency.' 360 F.2d at 685.
10
For these reasons we find no bar to consideration by the courts of these issues in their present posture. Abbott Laboratories v. Gardner, supra; United States v. Storer Broadcasting Co., 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081; Frozen Food Express v. United States, 351 U.S. 40, 76 S.Ct. 569, 100 L.Ed. 730.
11
This result is supported as well by the fact that these regulations are self-executing, and have an immediate and substantial impact upon the respondents. See Abbott Laboratories v. Gardner, 386 U.S. pp. 152—153, 87 S.Ct. pp. 1517—1518. The Act, as noted earlier, prescribes penalties for the distribution of goods containing color additives unless they have been cleared both by listing in a regulation and by certification of the particular batch. Faced with these regulations the respondents are placed in a quandary. On the one hand they can, as the Government suggests, refuse to comply, continue to distribute products that they believe do not fall within the purview of the Act, and test the regulations by defending against government criminal, seizure, or injunctive suits against them. We agree with the respondents that this proposed avenue of review is beset with penalties and other impediments rendering it inadequate as a satisfactory alternative to the present declaratory judgment action.
12
The penalties to which cosmetics manufacturers might be subject are extensive. A color additive that does not meet the premarketing clearance procedure is declared to be 'unsafe,' § 706(a), 21 U.S.C. § 376(a), and hence 'adulterated,' § 601, 21 U.S.C. § 361(e). It is a 'prohibited act' to introduce such material into commerce, § 301, 21 U.S.C. § 331, subjec t o injunction, § 302, 21 U.S.C. § 332, criminal penalties, § 303, 21 U.S.C. § 333, and seizure of the goods, § 304(a), 21 U.S.C. § 334(a). The price of noncompliance is not limited to these formal penalties. Respondents note the importance of public good will in their industry, and not without reason fear the disastrous impact of an announcement that their cosmetics have been seized as 'adulterated.'
13
The alternative to challenging the regulations through noncompliance is, of course, to submit to the regulations and present the various ingredients embraced in them for premarketing clearance. We cannot say on this record that the burden of such a course is other than substantial, accepting, as we must on a motion to dismiss on the pleadings, the allegations of the complaint and supporting affidavits as true. The regulations in this area require separate petitions for listing each color additive, 21 CFR §§ 8.1(f), 8.1(m), 8.4(c), at an initial fee, subject to refunds, of $2,600, a listing. 21 CFR § 8.50(c). One respondent Kolmar Laboratories, Inc., in affidavits submitted to the District Court, asserted that more than 2,700 different formulae would fall under the Commissioner's regulations and would cost some $7,000,000 in listing fees alone. According to the allegations the company also uses 264 diluents which under the challenged regulations must be included as color additives as well. Moreover, a listing is not obtained by mere application alone. Physical and chemical tests must be made and their results submitted with each petition, 21 CFR § 8.4(c), at a cost alleged by Kolmar of up to $42,000,000. Detailed records must be maintained for each listed ingredient, 21 CFR § 8.26, and batches of listed items must ultimately be certified, again at a substantial fee, 21 CFR § 8.51.
14
Whether on not these cost estimates are exaggerated2 it is quite clear that if respondents, failing judicial review at this stage, elect to comply with the regulations and await ultimate judicial determination of the validity of them in subsequent litigation, the amount of preliminary paper work, scientific testing, and recordkeeping will be substantial. The District Court found in denying the motion to dismiss: 'I conclude that in a substantial and practical business sense plaintiffs are threatened with irreparable injury by the obviously intended consequences of the challenged regulations, and that to resort to later piecemeal resolution of the controversy in the context of individual enforcement proceedings would be costly and inefficient, not only for the plaintiffs but as well for the public as represented by the defendants.' 235 F.Supp. 648, 651.
15
Like the Court of Appeals, we think that this record supports those findings and conclusions. And as in Abbott Laboratories, supra, we have been shown no substantial governmental interest that should lead us to reach a conclusion different from the one we have reached in that case. We hold that this action is maintainable.
16
Affirmed.
17
Mr. Justice BRENNAN took no part in the consideration or decision of this case.
18
Mr. Justice FORTAS, with whom THE CHIEF JUSTICE and Mr. Justice CLARK join, concurring in No. 336, and dissenting in Nos. 39 and 438.
19
I am in agreement with the Court in No. 336, Toilet Goods Assn. v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697, that we should affirm the decision of the Court of Appeals for the Second Circuit holding that the authority of the Secretary of Health, Education, and Welfare to promulgate the regulation there involved may not be challenged by injunctive or declaratory judgment action. The regulation (hereinafter referred to as the 'access' regulation) was issued under the 1960 Color Additive Amendments to the Federal Food, Drug, and Cosmetic Act. 74 Stat. 397, 21 U.S.C. §§ 321—376. It requires that manufacturers afford employees of the agency access to all manufacturing facilities, processes, and formulae involved in the manufacture of color additives and intermediates, and provides that the Commissioner of Food and Drugs 'may immediately suspend certification service' so long as access is denied. 28 Fed.Reg. 6446, 21 CFR § 8.28.
20
I am, however, compelled to dissent from the decisions of the Court in No. 39, Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681, and No. 438, Gardner v. Toilet Goods Assn., 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704. These cases also involve regulations promulgated under the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1040, as amended, 21 U.S.C. § 301 et seq. No. 438, like No. 336, arises under the Color Additive Amendments of 1960. The regulation implements the statutory definition of color additives to include diluents, finished cosmetics and certain hair dyes (the 'definition' regulations). The regulation in No. 39 implements amendments to the Act adopted in 1962 by requiring that 'every time' the proprietary or trade-mark name of a drug appears on labels and other printed materials, the 'established' or generic name must accompany it (the 'every time' regulation).
21
The issues considered by the Court are not constitutional questions. The Court does not rest upon any asserted right to challenge the regulations at this time because the agency lacks authority to promulgate the regulations as to the subject matters involved, or because its procedures have been arbitrary or unreasonable. Its decision is based solely upon the claim of right to challenge these particular regulations at this time on the ground that they are erroneous exercises of the agency's power. It is solely on this point that the Court in these two cases authorizes threshold or pre-enforcement challenge by action for injunction and declaratory relief to suspend the operation of the regulations in their entirety and without reference to particular factual situations.
22
With all respect, I submit that established principles of jurisprudence, solidly rooted in the constitutional structure of our Government, require that the courts should not intervene in the administrative process at this stage, under these facts and in this gross, shotgun fashion. With all respect, I submit that the governing principles of law do not permit a different result in these cases than in No. 336. In none of these cases is judicial interference warranted at this stage, in this fashion, and to test—on a gross, free-wheeling basis—whether the content of these regulations is within the statutory intendment. The contrary is dictated by a proper regard for the purpose of the regulatory statute and the requirements of effective administration; and by regard for the salutary rule that courts should pass upon concrete, specific questions in a particularized setting rather than upon a general controversy divorced from particular facts.
23
The Court, by today's decisions in Nos. 39 and 438, has opened Pandora's box. Federal injunctions will now threaten programs of vast importance to the public welfare. The Court's holding here strikes at progras for the public health. The dangerous precedent goes even further. It is cold comfort—it is little more than delusion—to read in the Court's opinion that 'It is scarcely to be doubted that a court would refuse to postpone the effective date of an agency action if the Government could show * * * that delay would be detrimental to the public health or safety.' Experience dictates, on the contrary, that it can hardly be hoped that some federal judge somewhere will not be moved as the Court is here, by the cries of anguish and distress of those regulated, to grant a disruptive injunction.
24
The difference between the majority and me in these cases is not with respect to the existence of jurisdiction to enjoin, but to the definition of occasions on which such jurisdiction may be invoked. I do not doubt that there is residual judicial power in some extreme and limited situations to enjoin administrative actions even in the absence of specific statutory provision where the agency has acted unconstitutionally or without jurisdiction—as distinguished from an allegedly erroneous action. But the Court's opinions in No. 39 and No. 438 appear to proceed on the principle that, even where no constitutional issues or questions of administrative jurisdiction or of arbitrary procedure are involved, exercise of judicial power to enjoin allegedly erroneous regulatory action is permissible unless Congress has explicitly prohibited it, provided only that the controversy is 'ripe' for judicial determination. This is a rule that is novel in its breadth and destructive in its implications as illustrated by the present application. As will appear, I believe that this approach improperly and unwisely gives individual federal district judges a roving commission to halt the regulatory process, and to do so on the basis of abstractions and generalities instead of concrete fact situations, and that it impermissibly broadens the license of the courts to intervene in administrative action by means of a threshold suit for injunction rather than by the method provided by statute.
25
The Administrative Procedure Act1 and fundamental principles of our jurisprudence2 insist that there must be some type of effective judicial review of final, substantive agency action which seriously affects personal or property rights. But, '(a)ll constitutional questions aside, it is for Congress to determine how the rights which it creates shall be enforced. * * * In such a case the specification of one remedy normally excludes another.' Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 301, 64 S.Ct. 95, 97, 88 L.Ed. 61 (1943). Where Congress has provided a method of review, the requisite showing to induce the courts otherwise to bring a governmental program to a halt may not be made by a mere showing of the impact of the regulation and the customary hardships of interim compliance. At least in cases where the claim is of erroneous action rather than the lack of jurisdiction or denial of procedural due process, a suit for injunctive or declaratory relief will not lie absent a clear demonstration that the type of review available under the statute would not be 'adequate,' that the controversies are otherwise 'ripe' for judicial decision, and that no public interest exists which offsets the private values which the litigation seeks to vindicate. As I shall discuss, no such showing is or can be made here.
I.
26
Since enactment of the Federal Food, Drug, and Cosmetic Act in 1938, the mechanism for judicial review of agency actions under its provisions has been well understood. Except for specific types of agency regulations ad actions to which I shall refer, judicial review has been confined to enforcement actions instituted by the Attorney General on recommendation of the agency. As the recurrent debate over this technique demonstrates, this restricted avenue for challenge has been deemed necessary because of the direct and urgent relationship of the field of regulation to the public health.3 It is this avenue that applies with respect to the regulations at issue in the present cases.
27
The scheme of the Act, in this respect, is as follows: 'Prohibited acts' are listed in § 301, 52 Stat. 1042, as amended, 21 U.S.C. § 331. Subsequent sections authorize the Attorney General to institute three types of proceedings. First, under § 302, 52 Stat. 1043, as amended, 21 U.S.C. § 332, he may apply to the district courts of the United States for injunctive relief. If an injunction is violated, jury trial is assured on demand of the accused. Second, under § 304, 52 Stat. 1044, as amended, 21 U.S.C. § 334, the Attorney General may institute libel proceedings in the district courts and seek orders for seizure of any misbranded or adulterated food, drug, device, or cosmetic. Third, criminal prosecution is authorized for violations, but before the Secretary may report a violation to the Attorney General for criminal prosecution, he must afford the affected person an opportunity to present his views. §§ 303, 305, 52 Stat. 1043, 1045, as amended, 21 U.S.C. §§ 333, 335.
28
The present regulations concededly would be reviewable in the course of any of the above proceedings. Apart from these general provisions, the Act contains specific provisions for administrative hearing and review in the courts of appeals with respect to regulations issued under certain, enumerated provisions of the Act—not including those here involved. These appear in § 701(f) of the Act, 52 Stat. 1055, as amended, 21 U.S.C. § 371(f). Section 701, by subdivision (a), contains the Secretary's general authority, exercised in the present cases, to promulgate 'regulations for the efficient enforcement of (the Act).' Subdivisions (e) and (f) provide for public hearings, administrative findings, and judicial review in a court of appeals with respect to those regulations specifically enumerated in subsection (e).4 The Court agrees that this procedure applies only to the enumerated types of regulations and that the present regulations are unaffected. Then, as to the enumerated regulations which are subject to judicial review—and only as to them—subparagraph (6) of subsection (f) specifies that '(t)he remedies provided for in this subsection shall be in addition to and not in substitution for any other remedies provided by law.' This 'saving clause' does not apply or refer to regulations other than those enumerated, and the Court's argument to the contrary is inconsistent with the clear wording and placement of the clause.5
29
At various times, § 701 has been amended to include types of regulations in addition to those initially subjected to § 701(f). Indeed, in the congressional action which included enactment of statutory provisions here in issue, the 1960 Color Additive Amendments, 74 Stat. 397, Congress amended § 701(e), 21 U.S.C. § 376(e) to include certain of the regulations authorized by the Color Additive Amendments. But, significantly, these did not include the regulations at issue in No. 336 and No. 438. The same is true with respect to the later Drug Amendments of 1962, 76 Stat. 780. Subsection (e) was again enlarged, but the provision involved in No. 39 was not included. These actions were taken in the course of vigorous debate as to the enforcement and review provisions which should be enacted with respect to the 1960 and 1962 amendments.
30
On a number of occasions Congress considered and rejected the proposal that district courts be given power to restrain by injunction the enforcement of regulations.6 The bill that became law in 1938 originally contained provisions for hearings and judicial review in the district courts of certain specified types of regulations (substantially those later enacted as § 701, supra). District courts were also empowered to enjoin 'any regulation promulgated in accordance with section 24' (which would include the regulations at issue in these cases, promulgated under § 701(a)). S. 5, 75th Cong., 1st Sess. (1937). The House Committee eliminated the latter provision and substituted what became subsection (f). This draft authorized review in a district court of regulations under subsection (e) and of those orders only.7 Even this restricted provision for enjoining certain regulations met with bitter opposition because it 'would postpone indefinitely the consumer protection' or would 'hamstring' the Act's enforcement and 'amount to a practical nullification * * * of the bill.'8 The Conference Committee then drafted the bill which was enacted, including the House revision of the review provision which became § 701 except for a significant change: So concerned was the Congress lest the administration of the law should be subjected to judicial intervention that even with respect to th § pecified regulations in subsection (e) the reviewing power was placed in the courts of appeals rather than in the district courts.9 This was to meet the criticism that 'a single district judge could be found who would issue an injunction.' But this is exactly what the Court today decrees. Rejected along with the original House proposal was the suggestion from the Department of Justice, set out at 83 Cong.Rec. 7892 (1938), that the Congress should leave review in the hands of the district courts' traditional injunctive powers—although the Court today resuscitates that lost cause, too.
31
As this Court held in Ewing v. Mytinger & Casselberry, 339 U.S. 594, 600—601, 70 S.Ct. 870, 873, 94 L.Ed. 1088 (1950), 'This highly selective manner in which Congress has provided (in this Act) for judicial review reinforces the inference that the only review of the issue of probable cause (for seizure) * * * was the one provided in the libel suit.' In evaluating the destructive force and effect of the Court's action in these cases, it is necessary to realize that it is arming each of the federal district judges in this Nation with power to enjoin enforcement of regulations and actions under the federal law designed to protect the people of this Nation against dangerous drugs and cosmetics. Restraining orders and temporary injunctions will suspend application of these public safety laws pending years of litigation—a time schedule which these cases illustrate.10 They are disruptive enough, regardless of the ultimate outcome. The Court's validation of this shotgun attack upon this vital law and its administration is not confined to these suits, these regulations, or these plaintiffs—or even this statute. It is a general hunting license; and I respectfully submit, a license for mischief because it authorizes aggression which is richly rewarded by delay in the subjection of private interests to programs which Congress believes to be required in the public interest. As I read the Court's opinion, it does not seriously contend that Congress authorized or contemplated this type of relief. It does not rest upon the argument that Congress intended that injunctions or threshold relief should be available. The Court seems to announce a doctrine, which is new and startling in administrative law, that the courts, in determining whether to exercise jurisdiction by injunction, will not look to see whether Congress intended that the parties should resort to another avenue of review, but will be governed by whether Congress has 'prohibited' injunctive relief. The Court holds that 'judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.' As authority for this, the Court produces little support. Board of Governors of Federal Reserve System v. Agnew, 329 U.S. 441, 67 S.Ct. 411, 91 L.Ed. 408 (1947), involved removal from office of certain bank directors. Had the Court not authorized review, the aggrieved individuals could only test the correctness of the administrator's decision by ignoring it and risking a prison term of five years. No evidence of congressional hostility to review was adduced.11 Heikkila v. Barber, 345 U.S. 229, 73 S.Ct. 603, 97 L.Ed. 972 (1953), does not even remotely support the Court's contention. On the contrary, it holds that a provision in the Immigration Act of 1917 to the effect that the decision of the Attorne G eneral is 'final' in deportation cases precludes direct attack upon a deportation order by means of suits for injunction or declaratory relief. What might be termed the other personal liberties cases relied upon by the Court are discussed below. But in cases like the present, where courts and administrative agencies both function, it has always—to this date been accepted that the intention of Congress—not its mere failure to prohibit—will be faithfully searched out by the courts and will be implemented except in the unusual and extraordinary situations where the result would be essentially to leave the parties without any adequate right to judicial review. Compare Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958), with Switchmen's Union of North America v. National Mediation Board, supra; Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938); and Adams v. Nagle, 303 U.S. 532, 58 S.Ct. 687, 82 L.Ed. 999 (1938).
32
In effect, the Court says that the Food, Drug, and Cosmetic Act has always authorized threshold injunctions or declaratory judgement relief: that this relief has been available since the enactment of the law in 1938, and that it would have been granted in appropriate cases which are 'ripe' for review. I must with respect characterize this as a surprising revelation. Despite the highly controversial nature of many provisions of such regulations under the Act, this possibility has not been realized by ingenious and aggressive counsel for the drug and food and cosmetics industries until this time. The Court's opinion and the briefs cite only a single case in which such relief has been granted prior to the present cases, and that preceded enactment of the present statutory scheme. Morgan v. Nolan, 3 F.Supp. 143 (D.C.S.D.Ind.1933), aff'd, 69 F.2d 471 (C.A.7th Cir. 1934). The fact of the matter is that, except for the instances enumerated in §§ 701(e) and (f), the avenue for attack upon the statute and regulations has been by defense to specific enforcement actions by the agency. Congress has been well aware of this for more than a generation that the statute has been in effect.12
33
Where a remedy is provided by statute, I submit that it is and has been fundamental to our law, to judicial administration, to the principle of separation of powers in our Constitution, that the courts will withhold equitable or discretionary remedies unless they conclude that the statutory remedy is inadequate. Even then, as the Court recognizes, the case must be 'ripe' or appropriate for threshold judicial review. Any other doctrine than this—any doctrine which so far departs from judicial restraint and judicial recogniton of the power of the Congress and the administrative agencies—is bound to be disruptive. It would mean that provisions in regulatory statutes and regulations of a wide variety of administrative agencies would be subject to threshold attack because Congress has not, in addition to providing judicial review by prescribed procedures, also said to the courts, 'thou shalt not enjoin in limine.'
34
The limited applicability of the Administrative Procedure Act in these cases is entirely clear. That Act requires that unless precluded by Congress final agency action of the sorts involved here must be reviewable at some stage, and it recognizes that such review must be 'adequate.' It merely presents the question in these cases. It does not supply an answer. Certainly, it would be revolutionary doctrine that the Administrative Procedure Act authorizes threshold suits for injunction even where another and adequate review provision is available. The Court refers to the Administrative Procedure Act as 'seminal.' It is, in a real sense; but its seed may not produce the lush, tropical jungle of the doctrine that the Court will permit agency action to be attacked in limine by suit for injunction or declaratory action unless Congress expressly prohibits review of regulatory action. See 3 Davis, Administrative Law Treatise § 22.08 (1958).
35
I submit that if we are to judge and not to legislate policy, we should implement and not contradict the program laid out by the Congress. Congress did not intend that the regulations at issue in this case might be challenged in gross, apart from a specific controversy, or in the district courts, or by injunction or declaratory judgment action. On the contrary, the clear intent was that the regulations, being to protect the consumer from unsafe, potentially harmful, and 'misbranded' foods, drugs, devices, and cosmetics, were to be subject to challenge only by way of defense to enforcement proceedings. It was Congress' judgment, after much controversy, that the special nature of the Act and its administration required this protection against delay and disruption. We should not arrogate to ourselves the power to override this judgment. Not a single case cited by the majority in which agency action was held reviewable arose against this kind of background of legislative hostility to threshold review in the district courts.
36
The Court is in error, I submit, in its approach to this problem; and, as I shall attempt to show, it is in error in its decision that, even given this permissive approach to the use of judicial injunctive power, these controversies are 'ripe' or appropriate for decision.
II.
37
I come then to the questions whether the review otherwise available under the statute is 'adequate,' whether the controversies are 'ripe' or appropriate for review in terms of the evaluation of the competing private and public interests. I discuss these together because the questions of adequacy and ripeness or appropriateness for review are interrelated. I again note that no constitutional issues are raised, and, indeed, no issues as to the authority of the agency to issue regulations of the general sort involved. The only issue is whether that authority was properly exercised.
38
There is, of course, no abstract or mechanical method for determining the adequacy of review provisions. Where personal status or liberties are involved, the courts may well insist upon a considerable ease of challenging administrative orders or regulations. Cf. Rusk v. Cort, 369 U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809 (1962); but cf. Heikkila v. Barber, 345 U.S. 229, 73 S.Ct. 603, 97 L.Ed. 972 (1953).13 But in situations where a regulatory scheme designed to protect the public is involved, this Court has held that postponement of the opportunity to obtain judicial relief in the interest of avoiding disruption of the regulatory plan is entirely justifiable. Ewing v. Mytinger & Casselberry, 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950); cf. Myers v. Behl ehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938).14 The Ewing case dramatically illustrates the point. It involves the same statute and enforcement plan as are now before us. Appellee filed suit in the United States District Court to restrain enforcement of the provision of the Food, Drug, and Cosmetic Act which authorizes multiple seizure of misbranded products. Appellee claimed that the provision was unconstitutional under the Due Process Clause, and that the agency had acted arbitrarily 'in instituting' (through the Attorney General) multiple seizures without affording appellee an opportunity for hearing as to whether there was 'probable cause' for the seizures. A three-judge district court was convened. It held for appellee on both issues and granted an injunction. This Court reversed on the grounds that no hearing is necessary for the administrative determination of probable cause, and that, in any event, the District Court had no jurisdiction to review that determination.15
39
It is no answer to Ewing to point out, as the Court does, that the precise determination attacked by the plaintiff was that of probable cause for recommending multiple seizures. The important point is that the Court held that the processes of the District Court could not be invoked except in the enforcement action provided by Congress. The following quotation from Mr. Justice Douglas' opinion for the Court demonstrates the controlling force of Ewing in the present case:
40
'Judicial review of this preliminary phase of the administrative procedure does not fit the statutory scheme nor serve the policy of the Act. Congress made numerous administrative determinations under the Act reviewable by the courts. * * * This highly selective manner in which Congress has provided for judicial review reinforces the inference that the only review of the issue of probable cause which Congress granted was the one provided in the libel suit. Cf. Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 305—306, 64 S.Ct. 95, 99, 88 L.Ed. 61. * * * If the District Court can step in, stay the institution of seizures, and bring the administrative regulation to a halt until it hears the case, the public will be denied the speedy protection which Congress provided by multiple seizures.' 339 U.S., at 600—601, 70 S.Ct., at 873.
41
In Ewing, the company's only recourse was to defend in the seizure actions, availing itself of consolidation of the multiple suits if it so desired. 339 U.S., at 602, 70 S.Ct., at 874. Despite the hardshp and destructive publicity of multiple seizures—a more serious variety of the kind of hardship which seems profoundly to affect the Court in the present cases—this Court refused to hold that the remedy of judicial review by defense in these actions was inadequate. On the contrary, it held that 'Congress weighed the potential injury to the public from misbranded articles against the injury to the purveyor of the article from a temporary interference with its distribution and decided in favor of the speedy, preventive device of multiple seizures.' 339 U.S., at 601, 70 S.Ct., at 874.
42
I submit that this Court's action in Nos. 39 and 438 sharply departs from Ewing and from the principles of judicial restraint and respect for congressional enactments and administrative agencies which have to this day been fundamental to our jurisprudence. The Court refers in passing to the injunctions here as 'traditional avenues of judicial relief.' But there is nothing 'traditional' about the courts providing injunctive relief against agency action in situations where the Congress has prescribed another avenue which is available to the plaintiffs. Eloquent testimony of this is the paucity of pertinent precedents.
43
The three decisions of this Court principally relied upon by the majority here are primarily noteworthy for their difference rather than their analogy. In each of them the particular statutory scheme involved expressly provided for the jurisdiction of the court in which the suit was brought. In none of them is the action maintained despite congressional provision of another and different remedy.
44
Columbia Broadcasting System v. United States, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563 (1942), concerning a regulation promulgated by the FCC which would have refused a license to any station which entered into defined types of network contracts. CBS, a network and not a station licensee, brought an action to enjoin enforcement of the regulation, claiming that it was beyond the Commission's power. The action was brought under § 402(a) of the Communications Act itself (48 Stat. 1093) which makes applicable the provisions of the Urgent Deficiencies Act to 'suits to enforce, enjoin,' etc., any order of the Commission with certain exceptions not here relevant. Thus, the statute itself provided for injunctive action against orders of the Commission. The only problem in the case was whether the particular order was 'reviewable' at all on suit of CBS and, if so, whether the action was premature—not whether the courts might, consistently with the congressional scheme, entertain suit for injunction in proper circumstances, because that was settled by specific provisions in the Act. The Court held that the action could be maintained. And it held that CBS had no adequate alternative remedy. At most, CBS could have intervened in a proceeding controlled by a station applying for a license—if there were such a proceeding.16 The Court therefore held that CBS could challenge the regulation before it was invoked against a licensee. This is a far cry from the present cases in which despite the absence of statutory authorization of district court jurisdiction over the injunctive procedure, and in face of the regulatory design, the manufacturers seek to invoke the courts' general equity power to override what appears to be the studied and deliberate intention of the Congress.
45
In United States v. Storer Broadcasting Co., 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081 (1956), the FCC promulgated a rule limiting to five the number of television stations which would be licensed to a single person. The same day it denied, on the basis of the rule, an application by Storer, which owned five stations, for an additional station. Storer appealed, not to the District Court, but to the Court of Appeals, for review of the Commission's rulemaking order. The Court of Appeal h ad jurisdiction by specific statutory provision to entertain petitions to review final orders of the Commission upon application of '(a)ny party aggrieved.' 64 Stat. 1130, 5 U.S.C. § 1034. This Court held that Storer had standing to maintain the petition for review, that the rule was a 'final order' for review purposes and that the controversy with respect to the limitation rule was 'ripe' for review. Again, the important point to note is that the case did not involve the assertion of district court jurisdiction in the absence of statute, or the overriding of administrative design or congressional intent. Storer utilized a procedure expressly made available by the statute. It sought review in the Court of Appeals where the Commission action was reviewed on the basis specified by statute, including the weight given to the agency findings and record. It did not commence a separate action, not provided for in the statute, in which the District Court's original jurisdiction was invoked. Storer, in brief, involves an action pursuant to the statute, and not in conflict with its plan as is true of the present cases.
46
The third case is Frozen Food Express v. United States, 351 U.S. 40, 76 S.Ct. 569, 100 L.Ed. 910 (1956). The ICC issued an order, after investigation and hearing, listing commodities which it found not to be 'agricultural' for purposes of an exemption from the requirement of obtaining a certificate of convenience and necessity under the Interstate Commerce Act. A motor carrier sued in the United States District Court to enjoin and set aside the Commission's order. The statute under which the suit was brought expressly gives the district courts jurisdiction to enjoin, etc., 'any order of the Interstate Commerce Commission.' 28 U.S.C. § 1336. Accordingly, here, too, there was no question of the courts furnishing a forum which the regulatory statute did not provide. This case, like Columbia Broadcasting and Storer, supra, therefore, does not touch the key problem of the instant cases. It is relevant only on the issue of 'ripeness'—an intensely particularized inquiry involving considerations which, as I shall discuss, should lead to rejection of the instant actions.17
47
Considering the impact of these three cases on the problem of 'ripeness' in the instant cases, I first note that each of these three cases is, in effect, two-dimensional. The meaning, effect, and impact of the accused rule or decision are clear, simple, and obvious. None is part of the warp and woof of an elaborate administrative pattern, intimately woven into the congressional design. None of them is apt to take different shape or to be modified by practical administrative action. None of them is subject to the give-and-take of the administrative process as it works, for example, in the realities of the complex world of food, drug, and cosmetic regulation. None of them is subject to exception upon application. None of them depends upon the independent judgment of the Attorney General for enforcement. These are stark, simple, two-dimensional regulations which do not depend upon the specifics of a particular situation for judgment as to their consonance with statutory authority nor are they subject to change in the process of administrative application. In short, in the three cases the courts proceeded within the procedural framework enacted by Congress, and the circumstances were such that the courts could make a sensible, realistic judgment as to whether the administrative rule matched the statutory authority.18 These factors are entirely absent in the present cases. Analysis of the regulations in the present cases will, I believe, demonstrate the point.
48
In No. 336 (involving the regulation requiring 'free access' to plants, processes, and formulae with respect to all 'color additives') the Court concludes 'that the legal issue as presently framed is not appropriate for judicial resolution.' It bases its conclusion upon two factors: (1) that the Secretary may or may not order inspection, and, if denied access, he may or may not decide to use the authority of the regulation to withdraw or suspend certification without which the manufacturer may not continue his business in the products; and (2) that judgment as to whether the regulation is authorized depends upon an understanding of the types of enforcement problems encountered by FDA, the need for supervision and the safeguards devised to protect legitimate trade secrets. The Court also says that it is an adequate remedy for the manufacturer to defer challenge until after access is demanded and denied and further certification services by the agency are suspended. The suspension of certification services means a shutdown, at least pro tanto, but the Court says, with an optimism which is probably not shared by the industry, that 'prompt' challenge through administrative procedure and court review can then be had.
49
Precisely the same considerations demonstrate, I submit, that the regulations in No. 39 and No. 438 should similarly be immune from attack in these suits. In No. 438, the accused regulations were also issued under § 701(a), the general power to promulgate regulations for the efficient administration of the Act, specifically the 1960 amendments to promote 'safety-in-use' of color additives. As the Court states, by the regulations in No. 438 the Commissioner 'amplified the statutory definition' of color additives to include diluents and certain cosmetics and hair dyes. By provisions in the statute, 74 Stat. 399, 21 U.S.C. § 376(a)(1)(A), a product containing a 'color additive' shall be deemed 'adulterated' unless the color additive and its proposed use have been submitted to FDA, tested and listed in an FDA regulation as safe and unless the particular additive comes from a certified batch, or has been exempted from certification. Distribution of a product without compliance runs the risk of seizure, injunction, or criminal prosecution upon action of the Attorney General. Again, there is no question that the Commissioner could refine and 'amplify' the definition of 'color additives.' The argument is whether he could do it in this particular way, to include these particular items.
50
Now, with all respect I submit that this controversy is clearly, transparently, and obviously unsuited to adjudication by the courts in limine or divorced from a particular controversy. Every reason advanced in No. 336 (the 'excess' regulation) is applicable here with equal or greater force to repel this effort to secure judicial review at this stage. (1) In No. 336, the Court pointed out that the Commissioner might or might not demand access and withdraw certification in a particular case. Similarly, in the present case it is impossible to ascertain at this stage how and whether in a particular situation the regulation will apply to that situation. First and most obvious is the fact that any manufacturer may apply for an exemption from the regulation if, as applied to his particular situation, it is unfair or unduly burdensome or—more significantly—if it falls outside of the statutory intendment. And even more than in the case of the access regulation, the definitional regulation is not self-enforcing. Indeed, in respect of the access regulation the Commissioner may resort to a measure of self-help by withholding certification services, whereas if the FDA wishes to take action against a manufacturer who refuses to submit a 'color additive' to the agency on the ground that it is not ov ered, the agency must institute an independent proceeding in court which it can do only if the Attorney General agrees with its conclusions.
51
(2) In No. 336, the Court was influenced by the obvious fact that adjudication of the legality of the access regulation requires an understanding of the enforcement problems of the agency and the actual needs for supervision. I agree. But I respectfully suggest that if this is true of a simple investigatory and enforcement regulation like that requiring access to plants and processes, it is much more compelling in respect of a complex regulation defining 'color additives.' How, for example, can a court possibly judge whether a substance should be included in the definition outside of the context of a specific controversy and in the absence of detailed information as to the agency problem?
52
The Court, however, describes the issue in No. 438 as 'a straightforward legal one: what general classifications of ingredients fall within the coverage of the Color Additive Amendments?' The Court says that 'this is not a situation in which consideration of the underlying legal issues would necessarily be facilitated if they were raised in the context of a specific attempt to enforce the regulations.' With all respect, these statements are totally divorced from reality. For example, the statute itself includes within the definition of a 'color additive' any 'other substance' which 'when added or applied to a food, drug, or cosmetic, or to the human body or any part thereof, is capable (alone or through reaction with another substance) of imparting color thereto.' § 201(t)(1), 74 Stat. 397, 21 U.S.C. § 321(t)(1). Can it be seriously contended that the question, for example whether a particular diluent—solvent or substance serving to dilute—meets this definition is 'a straightforward legal one,' decision of which would not 'necessarily be facilitated' if raised in specific context? I note that the Court recognizes the frailty of its pronouncement in a footnote in which it says that 'If in the course of further proceedings the District Court is persuaded that technical questions are raised that require a more concrete setting for proper adjudication, a different issue will be presented'! But I submit, with respect, that this question which, even standing alone, would dictate our rejection of the action in No. 438, can and must be faced, here and now; and the answer to it is clear and obvious. It is clear beyond question, merely on the basis of the nature of the agency action, that these regulations on their face raise questions which should not be adjudicated in the abstract and in the general, but which require a 'concrete setting' for determination. A threshold injunction is entirely unsuitable in these circumstances. It places the administration of a public-safety statute at the mercy of counsel's ability to marshall and deploy horrible examples which logic may accommodate, but the reality of administration would repel. Our training as lawyers and judges, our respect for the administrative process, and our awareness of the complexities of life should warn us not to fall into the trap of abstract, generalized, gross review.
53
The regulation in No. 39 relates to a 1962 amendment to the Act requiring manufacturers of prescription drugs to print on the labels or other printed material, the 'established name' of the drug 'prominently and in type at least half as large as that used thereon for any proprietary name or designation for such drug.' § 502(e)(1), 76 Stat. 790, 21 U.S.C. § 352(e)(1). Obviously, this requires some elucidation, either case-by-case or by general regulation or pronouncement, because the statute does not say that this must be done 'every time,' or only once on each label or in each pamphlet, or once per panel, etc., or that it must be done differently on labels than on circulars, or doctors' literature than on directions to the patients, etc. This is exactly the traditional purpose and function of an ami nistrative agency. The Commissioner, acting by delegation from the Secretary, took steps to provide for the specification. He invited and considered comments and then issued a regulation requiring that the 'established name' appear every time the proprietary name is used. A manufacturer—or other person who violates this regulation—has mislabeled his product. The product may be seized; or injunction may be sought; or the mislabeler may be criminally prosecuted. In any of these actions he may challenge the regulation and obtain a judicial determination.
54
The Court, however, moved by petitioners' claims as to the expense and inconvenience of compliance and the risks of deferring challenge by noncompliance, decrees that the manufacturers may have their suit for injunction at this time and reverses the Third Circuit. The Court says that this confronts the manufacturer with a 'real dilemma.' But the fact of the matter is that the dilemma is no more than citizens face in connection with countless statutes and with the rules of the SEC, FTC, FCC, ICC, and other regulatory agencies. This has not heretofore been regarded as a basis for injunctive relief unless Congress has so provided. The overriding fact here is—or should be—that the public interest in avoiding the delay in implementing Congress' program far outweighs the private interest; and that the private interest which has so impressed the Court is no more than that which exists in respect of most regulatory statutes or agency rules. Somehow, the Court has concluded that the damage to petitioners if they have to engage in the required redesign and reprint of their labels and printed materials without threshold review outweighs the damage to the public of deferring during the tedious months and years of litigation a cure for the possible danger and asserted deceit of peddling plain medicine under fancy trademarks and for fancy prices which, rightly or wrongly, impelled the Congress to enact this legislation. I submit that a much stronger showing is necessary than the expense and trouble of compliance and the risk of defiance. Actually, if the Court refused to permit this shotgun assault, experience and reasonably sophisticated common sense show that there would be orderly compliance without the disaster so dramatically predicted by the industry, reasonable adjustments by the agency in real hardship cases, and where extreme intransigence involving substantial violations occurred, enforcement actions in which legality of the regulation would be tested in specific, concrete situations. I respectfully submit that this would be the correct and appropriate result. Our refusal to respond to the vastly overdrawn cries of distress would reflect not only healthy skepticism, but our regard for a proper relationship between the courts on the one hand and Congress and the administrative agencies on the other. It would represent a reasonable solicitude for the purposes and programs of the Congress. And it would reflect appropriate modesty as to the competence of the courts. The courts cannot properly—and should not—attempt to judge in the abstract and generally whether this regulation is within the statutory scheme. Judgment as to the 'every time' regulation should be made only in light of specific situations, and it may differ depending upon whether the FDA seeks to enforce it as to doctors' circulars, pamphlets for patients, labels, etc.
55
I submit, therefore, that this invitation to the courts to rule upon the legality of these regulations in these actions for injunction and declaratory relief should be firmly rejected. There is nothing here approaching the stringent showing that should be required before the courts will undertake to provide a remedy that Congress has not authorized but which, on the contrary, it has deliberately declined to afford. Those challenging the regulations have a remedy and there are no special reasons to relieve them of the necessity of deferring their challenge to the regulations uti l enforcement is undertaken. In this way, and only in this way, will the administrative process have an opportunity to function—to iron out differences, to accommodate special problems, to grant exemptions, etc. The courts do not and should not pass on these complex problems in the abstract and the general—because these regulations peculiarly depend for their quality and substance upon the facts of particular situations. We should confine ourselves—as our jurisprudence dictates—to actual, specific, particularized cases and controversies, in substance as well as in technical analysis. And we should repel these attacks, for we have no warrant and no reason to place these programs, essential to the public interest, and many others which this Court's action today will affect, at the peril of disruption by injunctive orders which can be issued by a single district judge. In short, the parties have an 'adequate remedy' to test the regulations; these controversies are not 'ripe' for judicial decision; and it is not appropriate that the courts should respond to the call for this private relief at disproportionate burden to the public interest. With all respect, we should refuse to accept the invitation to abandon the traditional insistence of the courts upon specific, concrete facts, and instead entertain this massive onslaught in which it will be utterly impossible to make the kind of discrete judgments which are within judicial competence. With all respect we should not permit the administration of a law of the Congress to be disrupted by this non-adjudicable mass assault.
1
We use 'necessarily' advisedly, because this case arises on a motion to dismiss. The District Court also denied respondents' motion for summary judgment, and called for an evidentiary hearing. If in the course of further proceedings the District Court is persuaded that technical questions are raised that require a more concrete setting for proper adjudication, a different issue will be presented.
2
The Court of Appeals observed that 'Very likely these figures are exaggerated * * *.' 360 F.2d, at 682, n. 5. The District Court stated that 'While this amount is immediately suspect, there can be little doubt but that the added records-keeping and laboratory testing costs in themselves will be extremely burdensome for all of the plaintiffs.' 235 F.Supp. 648, 652. (Footnote omitted.)
1
378, 5 U.S.C. §§ 701—704 (1964 ed., Supp. II).
2
See St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 84, 56 S.Ct. 720, 740, 80 L.Ed. 1033 (1936) (concurring opinion of Mr. Justice Brandeis). Hart & Wechsler, The Federal Courts and the Federal System 312—340 (1953). Compare, 4 Davis, Administrative Law Treatise § 28.18 (1958).
3
See Ewing v. Mytinger & Casselberry, 339 U.S. 594, 601, 70 S.Ct. 870, 874, 94 L.Ed. 1088 (1950).
4
21 U.S.C. § 371(e) refers only to regulations under § 401, 52 Stat. 1046, as amended, 21 U.S.C. § 341 (identity and quality standards for food), § 403(j), 52 Stat. 1048, as amended, 21 U.S.C. § 343(j) (misbranded food purporting to serve special dietary purposes), § 404(a), 52 Stat. 1048, as amended, 21 U.S.C. § 344(a) (conditions imposed on manufacture of food as the result of health requirements), § 406, 52 Stat. 1049, as amended, 21 U.S.C. § 346 (tolerances for pesticides), § 501(b), 52 Stat. 1049, as amended, 21 U.S.C. § 351(b) (deviations from strength, quality, or purity standards, for drugs), § 502(d), 52 Stat. 1050, as amended, 21 U.S.C. § 352(d) (warnings with respect to habit-forming drugs), and § 502(h), 52 Stat. 1051, as amended, 21 U.S.C. § 352(h) (packing and labeling of deteriorative drugs). In addition, particular sections expressly incorporate the §§ 371(f) and (g) procedures: § 506, 55 Stat. 851, as amended, 21 U.S.C. § 356 (certain portions of regulations pertaining t c ertification of drugs containing insulin), § 507, 59 Stat. 463, as amended, 21 U.S.C. § 357 (with respect to regulations dealing with antibiotic drugs). Finally, § 505(h), 52 Stat. 1053, as amended, 21 U.S.C. § 355(h) provides that denials of certification for new drugs may be reviewed in the courts of appeals.
5
The saving clause, subdivision (6) of subsection (f), specifically and carefully refers to the 'remedies provided for in this subsection.' (Emphasis added.) Its wording and placement would be anomalous if the saving clause were intended to have general applicability. The legislative history of the saving clause, and particularly the failure of more broadly conceived provisions to obtain acceptance by the Congress, corroborates the evidence of the clause's ultimate language and position that it was to have restricted application. See Dunn, Federal Food, Drug, and Cosmetic Act, A Statement of Its Legislative Record 184, 225, 609—610 (1938) (hereinafter cited as Dunn).
Contrary to the majority's contention, the reason for the clause and for its location in subsection (f) is clear and common-sensical. It was intended to save the remedies of injunction and declaratory judgment where the agency promulgated a subsection (e) regulation without the hearings and findings needed to permit review in the Court of Appeals. In short, as its placement indicates, it was intended to complete the scheme of pre-effectiveness review as to those carefully enumerated regulations with respect to which Congress deemed pre-enforcement review to be advisable. It has no broader application.
It will come as a shock to the agency, Congress, and practitioners, that for almost 30 years this undetected, omnibus 'saving clause' has slumbered in the Act.
6
Section 23 of S. 2800, introduced in the 73d Cong., 2d Sess. (1934), for example, was such a provision and was expressly discussed on the floor of the Senate. 78 Cong.Rec. 8958—8959 (1934); Dunn 157—159. A successor bill, S. 5, 74th Cong., 1st Sess. (1935), contained a similar provision, § 702, and was approved by the Senate. 79 Cong.Rec. 8356 (1935). See Dunn 330 331, 510.
7
H.R.Rep. No. 2139, 75th Cong., 3d Sess. (1938).
8
Id., Pt. II (minority statement).
9
H.R.Conf.Rep. No. 2716, 75th Cong., 3d Sess. (1938).
10
The 'every time' regulation was published about four years ago, on June 20, 1963, 28 Fed.Reg. 6375. As a result of litigation begun in September of 1963, it has not yet been put into force. The 'definition' regulations and the 'access' regulation with respect to color additives were published on June 22, 1963, 28 Fed.Reg. 6439, 6446. Litigation was begun in November of 1963, and the regulations are not yet operative.
11
As to the other nonpersonal liberty cases cited by the Court: In Shields v. Utah Idaho Central R. Co., 305 U.S. 177, 59 S.Ct. 160, 83 L.Ed. 111 (1938), the Government did not oppose resort to the injunction remedy, and the Court enumerated special cicumstances why that remedy was peculiarly needed. Id., at 183 184, 59 S.Ct., at 163—164. And in Stark v. Wickard, 321 U.S. 288, 64 S.Ct. 559, 88 L.Ed. 733 (1944), the Court noted that the aggrieved parties had no other forum in which to contest the order in question, and it found 'plain' evidence of a congressional intent to allow review.
12
Indeed, Congressman Lea, principal floor manager for the bill which became the 1938 Act, told his colleagues that the review provisions of the new bill were not retroactive, and that pre-existing regulations were therefore unreviewable unless re-enacted. 83 Cong.Rec. 7776-7777 (1938).
13
See, Jaffe, Judicial Control of Administrative Action 372.
14
In Ewing, 339 U.S., at 599, 70 S.Ct., at 873, a case under the Federal Food, Drug, and Cosmetic Act, the Court held 'it is not a requirement of due process that there be judicial inquiry before discretion can be exercised. It is sufficient, where only property rights are concerned, that there is at some stage an opportunity for a hearing and a judicial determination. Phillips v. Comissioner of Internal Revenue, 283 U.S. 589, 596—597, 51 S.Ct. 608, 611, 75 L.Ed. 1289; Bowles v. Willingham, 321 U.S. 503, 520, 64 S.Ct. 641, 650, 88 L.Ed. 892; Yakus v. United States, 321 U.S. 414, 442—443, 64 S.Ct. 660, 675, 676, 88 L.Ed. 834.'
15
Where Congress has created a right but provided no avenue for judicial protection against its obliteration, suit for injunctive relief may be available under 28 U.S.C. § 1337, relating to proceedings 'arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies.' See Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958), where this Court authorized suit in the district courts to set aside an NLRB certification of a bargaining unit in which the Board had included both supervisory and nonsupervisory personnel—concededly without authority of statute. But cf. Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95 (1943).
16
As a leading commentator has noted, the basic issue was that of CBS' standing. Jaffe, op. cit. supra, at 394.
17
Mr. Justice Harlan dissented in Frozen Food Express on the ground that 'the case falls squarely within those carefully developed rules which require that judicial intervention be withheld until administrative action has reached its complete development.' 351 U.S. at 45, 76 S.Ct., at 572.
18
Although Frozen Fod Express involved problems of definition, they were not comparable to the complex, subtle, technical considerations involved in the 'definition' or 'every time' regulations here.
| 89
|
387 U.S. 231
87 S.Ct. 1583
18 L.Ed.2d 738
James R. HOFFA et al.v.UNITED STATES.
No. 1003.
May 22, 1967.
Maurice J. Walsh, Morris A. Shenker, Joseph A. Fanelli, Frank Ragano, George F. Callaghan, Richard E. Gorman, Jacques M. Schiffer and Charles A. Bellows, for petitioner.
Solicitor General Marshall, Assistant Attorney General Vinson, Beatrice Rosenberg and Jerome M. Feit, for the United States.
PER CURIAM.
1
Petitioners were convicted of various counts under a 28-count indictment charging mail and wire fraud, in violation of 18 U.S.C. §§ 1341, 1343, and conspiracy, in violation of 18 U.S.C. § 371. The United States claimed, and the jury apparently found that petitioners conspired to defraud, and did defraud, the Central States, Southeast and Southwest Areas Pension Fund of the International Brotherhood of Teamsters, with the prime objective of financially rehabilitating Sun Valley, Inc., a real estate enterprise in which certain of the petitioners had important interests. For reasons which follow, we do not reach, one way or the other, any of the contentions urged by petitioners in support of their petition for a writ of certiorari.
2
In response to the petition, the Solicitor General sua sponte has advised the Court that on December 2, 1963, some six months after the indictment in this case, a conversation between petitioner Burris and one Benjamin Sigelbaum, not a defendant in this prosecution, was overheard by agents of the Federal Bureau of Investigation as a result of electronic eavesdropping. The eavesdropping equipment had been installed in Sigelbaum's office, by trespass, some 12 months before this conversation, and thereafter had been maintained in operation. We are informed by the Solicitor General that the recorded conversation was concerned both with the proposed transfer to Sigelbaum of Burris' interest in Sun Valley, and with the conduct of the defense to this prosecution. The Solicitor General has indicated that the contents of the recording were available to government attorneys involved in this prosecution, but adds that the recording was only 'peripherally relevant to the charges underlying (Burris') conviction.'* We are, moreover, advised by him that the information obtained through this electronic eavesdropping was not introduced into evidence at trial, that it was never the basis of any investigative lead, and that it was in part already known, through Burris' own statements, to government attorneys. Unlike the situations in Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26, and O'Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94, there was apparently no direct intrusion here into attorney-client discussions. In these circumstances, we find no 'adequate justification,' Black v. United States, supra, 385 U.S. at 29, 87 S.Ct. at 192, now to require a new trial of Burris or of any of the other petitioners; the more orderly and appropriate procedure is instead to remand the case to the District Court for a hearing, findings, and conclusions on the nature and relevance to these convictions of the recorded conversation, and of any other conversations that may be shown to have been overheard through similar eavesdropping. United States v. Shotwell Mfg. Co., 355 U.S. 233, 78 S.Ct. 245, 2 L.Ed.2d 234.
3
We do not accept the Solicitor General's suggestion that such an inquiry should be confined to the conviction of Burris. We consider it more appropriate that each of these petitioners be provided an opportunity to establish, if he can, that the interception of this particular conversation, or of other conversations, vitiated in some manner his conviction. We do not intend by this to suggest that any or all of the petitioners might, under the circumstances described by the Solicitor General, be entitled to a new trial; we decide only that further proceedings must be held, and findings and conclusions made, to determine the content and pertinence to this case of any such recorded conversations.
4
Accordingly, we grant the petition for a writ of certiorari as to each of the petitioners, vacate the judgment of the Court of Appeals, and remand the case to the District Court for further proceedings. In such proceedings, the District Court will confine the evidence presented by both sides to that which is material to questions of the content of this and any other electronically eavesdropped conversations, and of the relevance of any such conversations to petitioners' subsequent convictions. The District Court will make such findings of fact on these questions as may be appropriate in light of the further evidence and of the entire existing record. If the District Court decides, on the basis of such findings, that the conviction of any of the petitioners was not tainted by the use of evidence thus improperly obtained, it will enter new final judgments as to such petitioners based on the existing record as supplemented by its further findings, thereby preserving to all affected parties the right to seek further appropriate appellate review. If, on the other hand, the District Court concludes after such further proceedings that the conviction of any of the petitioners was tainted, it would then become its duty to accord any such petitioner a new trial. See United States v. Shotwell Mfg. Co., supra, at 245—246, 78 S.Ct., at 253—254; see also Shotwell Mfg. Co. v. United States, 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357.
5
The petition for a writ of certiorari is granted, the judgment of the Court of Appeals is vacated, and the case is remanded to the District Court for further proceedings consistent with this opinion. It is so ordered. Judgment of Court of Appeals vacated and case remanded to the District Court.
6
Mr. Justice BLACK would grant certiorari and set the case for argument. He dissents from the vacation of the judgment of the Court of Appeals and from the remand of the case to the District Court.
7
Mr. Justice WHITE took no part in the consideration or decision of this case.
*
Brief for the United States in Opposition 70.
| 01
|
387 U.S. 112
87 S.Ct. 1554
18 L.Ed.2d 656
Frank A. DUSCH et al., Appellants,v.J. E. Clayton DAVIS et al.
No. 724.
Argued April 18, 1967.
Decided May 22, 1967.
Harry Frazier III, Richmond, Va., for appellants.
Henry E. Howell, Jr., Norfolk, Va., for appellees.
Fraci § X. Beytagh, Jr., Cleveland, Ohio, for the United States, as amicus curiae, pro hac vice, by special leave of Court.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
In 1963 the City of Virginia Beach, Virginia, consolidated with adjoining Princess Anne County, which was both rural and urban; and a borough form of government was adopted. There are seven boroughs, one corresponding to the boundaries of the former city and six corresponding to the boundaries of the six magisterial districts. The consolidation plan was effected pursuant to Virginia law1 and the charter embodied in the plan was approved by the legislature.2
2
Three boroughs—Bayside, Kempsville, and Lynnhaven—are primarily urban. Three—Blackwater, Princess Anne, and Pungo—are primarily rural. The borough of Virginia Beach, centering around its famous ocean beach and bay, is primarily tourist.
3
Electors of five boroughs, having exhausted attempts to obtain relief in the state courts,3 instituted this suit against local and state officials claiming that the consolidation plan in its distribution of voting rights violated the principle of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, and asking for the convening of a three-judge court. The three-judge court held that its jurisdiction had not been established because the issue was local in character and transferred the cause to the District Court.
4
The District Court held the original allocation invalid as denying voter equality and stayed further proceedings to allow the city an opportunity to seek a charter amendment at the 1966 session of the State Legislature. The charter was amended to provide for the Seven-Four Plan now being challenged.4 Under the amended charter, the council is composed of 11 members. Four members are elected at large without regard to residence. Seven are elected by the voters of the entire city, one being required to reside in each of the seven boroughs. Pursuant to leave of the District Court, appellees filed an amended complaint challenging the validity of the Seven-Four Plan. The District Court approved this plan. The Court of Appeals reversed, 361 F.2d 495. The case is here on appeal (28 U.S.C. § 1254(2)) and we postponed the question of jurisdiction to the merits. 385 U.S. 999, 87 S.Ct. 706, 17 L.Ed.2d 540.
5
For the reasons stated in Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643, the case is not one for a three-judge court, the charter being local only and not of statewide application.
6
In Sailors v. Board of Education of County of Kent, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650, we reserved the question whether the apportionment of municipal or county legislative agencies is governed by Reynolds v. Sims. But though we assume arguendo that it is, we reverse the Court of Appeals. It felt that Reynolds v. Sims required 'that each legislator, State or municipal, represent a reasonably like number in population,' 361 F.2d, at 497, pointing out that Blackwater, where 733 people live, will have the same representation as Lynnhaven with 23,731 and Bayside with 29,048 and Kempsville with 13,900. The Court of Appeals reaffirmed what it had decided in Ellis v. Mayor and City Council of Baltimore, 4 Cir., 352 F.2d 123, 128, that 'the fundamental principle of representative government in this country is one of equal representation for equal numbers of people, without regard to race, sex, economic status, or place of residence within a State.' And the court held that the provision for four city-wide members 'does not remedy or in any way affect the disproportion of representation of the 7 borough members.' 361 F.2d, at 497.
7
The Sevn- Four Plan makes no distinction on the basis of race, creed, or economic status or location. Each of the 11 councilmen is elected by a vote of all the electors in the city. The fact that each of the seven councilmen must be a resident of the borough from which he is elected, is not fatal. In upholding a residence requirement for the election of state senators from a multi-district county we said in Fortson v. Dorsey, 379 U.S. 433, 438, 85 S.Ct. 498, 501, 13 L.Ed.2d 401:
8
'It is not accurate to treat a senator from a multi-district county as the representative of only that district within the county wherein he resides. The statute uses districts in multi-district counties merely as the basis of residence for candidates, not for voting or representation. Each district's senator must be a resident of that district, but since his tenure depends upon the county-wide electorate he must be vigilant to serve the interests of all the people in the county, and not merely those of people in his home district; thus in fact he is the county's and not merely the district's senator.'
9
By analogy the present consolidation plan uses boroughs in the city 'merely as the basis of residence for candidates, not for voting or representation.' He is nonetheless the city's, not the borough's, councilman. In Fortson there was substantial equality of population in the senatorial districts, while here the population of the boroughs varies widely. If a borough's resident on the council represented in fact only the borough, residence being only a front, different conclusions might follow. But on the assumption that Reynolds v. Sims controls, the constitutional test under the Equal Protection Clause is whether there is an 'invidious' discrimination. 377 U.S., at 561, 84 S.Ct. at 1381. As stated by the District Court:
10
'The principal and adequate reason for providing for the election of one councilman from each borough is to assure that there will be members of the City Council with some general knowledge of rural problems to the end that this heterogeneous city will be able to give due consideration to questions presented throughout the entire area.
11
(T)he history—past and present—of the area and population now comprising the City of Virginia Beach demonstrates the compelling need, at least during an appreciable transition period, for knowledge of rural problems in handling the affairs of one of the largest area-wide cities in the United States. Bluntly speaking, there is a vast area of the present City of Virginia Beach which should never be referred to as a city. District representation from the old County of Princess Anne with elected members of the Board of Supervisors selected only by the voters of the particular district has now been changed to permit city-wide voting. The 'Seven-Four Plan' is not an evasive scheme to avoid the consequences of reapportionment or to perpetuate certain persons in office. The plan does not preserve any controlling influence of the smaller boroughs, but does indicate a desire for intelligent expression of views on subjects relating to agriculture which remains a great economic factor in the welfare of the entire population. As the plan becomes effective, if it then operates to minimize or cancel out the voting strength of racial or political elements of the voting population, it will be time enough to consider whether the system still passes constitutional muster.'
12
The Seven-Four Plan seems to reflect a detente between urban and rural communities that may be important in resolving the complex problems of the modern megalopolis in relation to the city, the suburbia, and the rural countryside.5 Finding no invidious discrimination we conclude that the judgment of the Court of Appeals must be and is reversed.
13
Reversed.
14
Mr. Justice HARLAN and Mr. Justice STEWART concur in the result.
1
Va.Code 1950, Tit. 15, Art. 4, c. 9 (1956 Repl.Vol.).
2
Va.Acts 1962, c. 147. The consolidation plan was an interim one, the idea being that another system would be initiated not sooner than 1968 and not later than 1971.
3
Davis v. Dusch, 205 Va. 676, 139 S.E.2d 25.
4
Va.Acts 1966, c. 39
5
The populations of the seven boroughs are:
Blackwater.....................733
Pungo....................... 2,504
Princess Anne............... 7,211
Kempsville................ 13,900
Lynnhaven.................. 23,731
Bayside.................... 29,048
Virginia Beach.............. 8,091
It is obvious that, if the percentage of qualified voters is in accord with the population, Lunnhaven and Bayside, if united in their efforts, could elect all 11 councilmen even though the election were at large.
| 12
|
387 U.S. 136
87 S.Ct. 1507
18 L.Ed.2d 681
ABBOTT LABORATORIES et al., Petitioners,v.John W. GARDNER, Secretary of Health, Education, and Welfare et al.
No. 39.
Argued Jan. 16, 1967.
Decided May 22, 1967.
Gerhard A. Gesell, Washington, D.C., for petitioners.
Nathan Lewin, Washington, D.C., for respondents.
Mr. Justice HARLAN delivered the opinion of the Court.
1
In 1962 Congress amended the Federal Food, Drug, and Cosmetic Act, (52 Stat. 1040, as amended by the Drug Amendments of 1962, 76 Stat. 780, 21 U.S.C. § 301 et seq.), to require manufacturers of prescription drugs to print the 'established name' of the drug 'prominently and in type at least half as large as that used thereon for any proprietary name or designation for such drug,' on labels and other printed material, § 502(e)(1)(B), 21 U.S.C. § 352(e)(1)(B). The 'established name' is one designated by the Secretary of Health, Education, and Welfare pursuant to § 502(e)(2) of the Act, 21 U.S.C. § 352(e)(2); the 'proprietary name' is usually a trade name under which a particular drug is marketed. The underlying purpose of the 1962 amendment was to bring to the attention of doctors and patients the fact that many of the drugs sold under familiar trade names are actually identical to drugs sold under their 'established' or less familiar trade names at significantly lower prices. The Commissioner of Food and Drugs, exercising authority delegated to him by the Secretary, 22 Fed.Reg. 1051, 25 Fed.Reg. 8625, published proposed regulations designed to implement the statute, 28 Fed.Reg. 1448. After inviting and considering comments submitted by interested parties the Commissioner promulgated the following regulation for the 'efficient enforcement' of the Act, § 701(a), 21 U.S.C. § 371(a):
2
'If the label or labeling of a prescription drug bears a proprietary name or designation for the drug or any ingredient thereof, the established name, if such there be, corresponding to such proprietary name or designation, shall accompany each appearance of such proprietary name or designation.' 21 CFR § 1.104(g)(1).
3
A similar rule was made applicable to advertisements for prescription drugs, 21 CFR § 1.105(b)(1).
4
The present action was brought by a group of 37 individual drug manufacturers and by the Pharmaceutical Manufacturers Association, of which all the petitioner companies are members, and which includes manufacturers of more than 90% of the Nation's supply of prescription drugs. They challenged the regulations on the ground that the Commissioner exceeded his authority under the statute by promulgating an order requiring labels, advertisements, and other printed matter relating to prescription drugs to designate the established name of the particular drug involved every time its trade name is used anywhere in such material.
5
The District Court, on cross motions for summary judgment, granted the declaratory and injunctive relief sought, finding that the statute did not sweep so broadly as to permit the Commissioner's 'every time' interpretation. 228 F.Supp. 855. The Court of Appeals for the Third Circuit reversed without reaching the merits of the case. 352 F.2d 286. It held first that under the statutory scheme provided by the Federal Food, Drug, and Cosmetic Act pre-enforcement1 review of these regulations was unauthorized and therefore beyond the jurisdiction of the District Court. Second, the Court of Appeals held that no 'actual case or controversy' existed and, for that reason, that no relief under the Administrative Procedure Act, 5 U.S.C. §§ 701—704 (1964 ed., Supp. II), or under the Declaratory Judgment Act, 28 U.S.C. § 2201, was in any event available. Because of the general importance of the question, and the apparent conflict with the decision of the Court of Appeals for the Second Circuit in Toilet Goods Assn. v. Gardner, 360 F.2d 677, which we also review today, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697, we granted certiorari. 383 U.S. 924, 86 S.Ct. 928, 15 L.Ed.2d 844.
I.
6
The first question we consider is whether Congress by the Federal Food, Drug, and Cosmetic Act intended to forbid pre-enforcement review of this sort of regulation promulgated by the Commissioner. The question is phrased in terms of 'prohibition' rather than 'authorization' because a survey of our cases shows that judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress. Board of Governors v. Agnew, 329 U.S. 441, 67 S.Ct. 411, 91 L.Ed. 408; Heikkila v. Barber, 345 U.S. 229, 73 S.Ct. 603, 97 L.Ed. 972 B rownell v. We Shung, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225; Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503; Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210; Rusk v. Cort, 369 U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809. Early cases in which this type of judicial review was entertained, e.g., Shields v. Utah Idaho Central R. Co., 305 U.S. 177, 59 S.Ct. 160, 83 L.Ed. 111; Stark v. Wickard, 321 U.S. 288, 64 S.Ct. 559, 88 L.Ed. 733, have been reinforced by the enactment of the Administrative Procedure Act, which embodies the basic presumption of judicial review to one 'suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute,' 5 U.S.C. § 702, so long as no statute precludes such relief or the action is not one committed by law to agency discretion, 5 U.S.C. § 701(a). The Administrative Procedure Act provides specifically not only for review of '(a)gency action made reviewable by statute' but also for review of 'final agency action for which there is no other adequate remedy in a court,' 5 U.S.C. § 704. The legislative material elucidating that seminal act manifests a congressional intention that it cover a broad spectrum of administrative actions,2 and this Court has echoed that theme by noting that the Administrative Procedure Act's 'generous review provisions' must be given a 'hospitable' interpretation. Shaughnessy v. Pedreiro, 349 U.S. 48, 51, 75 S.Ct. 591, 594, 99 L.Ed. 868; see United States v. Interstate Commerce Comm'n, 337 U.S. 426, 433—435, 69 S.Ct. 1410, 1414—1415, 93 L.Ed. 1451; Brownell v. We Shung, supra; Heikkila v. Barber, supra. Again in Rusk v. Cort, supra, 369 U.S. at 379—380, 82 S.Ct. at 794, the Court held that only upon a showing of 'clear and convincing evidence' of a contrary legislative intent should the courts restrict access to judicial review. See also, Jaffe, Judicial Control of Administrative Action 336—359 (1965).
7
Given this standard, we are wholly unpersuaded that the statutory scheme in the food and drug area excludes this type of action. The Government relies on no explicit statutory authority for its argument that pre-enforcement review is unavailable, but insists instead that because the statute includes a specific procedure for such review of certain enumerated kinds of regulations,3 not encompassing those of the kind involved here, other types were necessarily meant to be excluded from any pre-enforcement review. The issue, however, is not so readily resolved; we must go further and inquire whether in the context of the entire legislative scheme the existence of that circumscribed remedy evinces a congressional purpose to bar agency action not within its purview from judicial review. As a leading authority in this field has noted, 'The mere fact that some acts are made reviewable should not suffice to support an implication of exclusion as to others. The right to review is too important to be excluded on such slender and indeterminate evidence of legislative intent.' Jaffe, supra, at 357.
8
In this case the Government has not demonstrated such a purpose; indeed, a study of the legislative history shows rather conlu sively that the specific review provisions were designed to give an additional remedy and not to cut down more traditional channels of review. At the time the Food, Drug, and Cosmetic Act was under consideration, in the late 1930's, the Administrative Procedure Act had not yet been enacted,4 the Declaratory Judgment Act was in its infancy,5 and the scope of judicial review of administrative decisions under the equity power was unclear.6 It was these factors that led to the form the statute ultimately took. There is no evidence at all that members of Congress meant to preclude traditional avenues of judicial relief. Indeed, throughout the consideration of the various bills submitted to deal with this issue, it was recognized that 'There is always an appropriate remedy in equity in cases where an administrative officer has exceeded his authority and there is no adequate remedy of law, * * * (and that) protection is given by the so-called Declaratory Judgments Act * * *.' H.R.Rep. No. 2755, 74th Cong., 2d Sess., 8. It was specifically brought to the attention of Congress that such methods had in fact been used in the food and drug area,7 and the Department of Justice, in opposing the enactment of the special-review procedures of § 701, submitted a memorandum which was read on the floor of the House stating: 'As a matter of fact, the entire subsection is really unnecessary, because even without any express provision in the bill for court review, any citizen aggrieved by any order of the Secretary, who contends that the order is invalid, may test the legality of the order by bringing an injunction suit against the Secretary, or the head of the Bureau, under the general equity powers of the court.' 83 Cong.Rec. 7892 (1938).
9
The main issue in contention was whether these methods of review were satisfactory. Compare the majority and minority reports on the review provisions, H.R.Rep.No.2139, 75th Cong., 3d Sess. (1938), both of which acknowledged that traditional judicial remedies were available, but disagreed as to the need for additional procedures. The provisions now embodied in a modified form in § 701(f) were supported by those who feared the life-and-death power given by the Act to the executive officials, a fear voiced by many members of Congress. The supporters of the special-review section sought to include it in the Act primarily as a method of reviewing agency factual determinations. For example, it was argued that the level of tolerance for poisonous sprays on apple crops, which the Secretary of Agriculture had recently set, was a factual matter, not reviewable in equity in the absence of a special statutory review procedure.8 Some congressmen urged that challenge to this type of determination should be in the form of a de novo hearing in a district court, but the Act as it was finally passed compromised the matter by allowing an appeal on a record with a 'substantial evidence' test, affording a considerably more generous judicial review than the 'arbitrary and capricious' test available in the traditional injunctive suit.9
10
A second reason for the special procedure was to provide broader venue to litigants challenging such technca l agency determinations. At that time, a suit against the Secretary was proper only in the District of Columbia, an advantage that the Government sought to preserve. The House bill, however, originally authorized review in any district court, but in the face of a Senate bill allowing review only in the District of Columbia, the Conference Committee reached the compromise preserved in the present statute authorizing review of such agency actions by the courts of appeals.10
11
Against this background we think it quite apparent that the special-review procedures provided in § 701(f), applying to regulations embodying technical factual determinations,11 were simply intended to assure adequate judicial review of such agency decisions, and that their enactment does not manifest a congressional purpose to eliminate judicial review of other kinds of agency action.
12
This conclusion is strongly buttressed by the fact that the Act itself, in § 701(f)(6), states, 'The remedies provided for in this subsection shall be in addition to and not in substitution for any other remedies provided by law.' This saving clause was passed over by the Court of Appeals without discussion. In our view, however, it bears heavily on the issue, for if taken at face value it would foreclose the Government's main argument in this case. The Government deals with the clause by arguing that it should be read as applying only to review of regulations under the sections specifically enumerated in § 701(e). This is a conceivable reading, but it requires a considerable straining both of language and of common understanding. The saving clause itself contains no limitations, and it requires an artificial statutory construction to read a general grant of a right to judicial review begrudgingly, so as to cut out agency actions that a literal reading would cover.
13
There is no support in the legislative background for such a reading of the clause. It was included in the House bill, whose report states that the provision '* * * saved as a method to review a regulation placed in effect by the Secretary whatever rights exist to initiate a historical proceeding in equity to enjoin the enforcement of the regulation, and whatever rights exist to initiate a declaratory judgment proceeding.' H.R.Rep.No.2139, 75th Cong., 3d Sess., 11. The Senate conferees accepted the provision.12 The Government argues that the clause is included as a part of § 701(f), and therefore should be read to apply only to those sections to which the § 701(f) special-review procedure applies. But it is difficult to think of a more appropriate place to put a general saving clause than where Congress placed it—at the conclusion of the section setting out a special procedure for use in certain specified instances. Furthermore, the Government's reading would result in an anomaly. The §§ 701(e)—(f) procedure was included in the Act in order to deal with the problem of technical determinations for which the normal equity power was deemed insufficient. See, supra, pp. 142 144. There would seem little reason for Congress to have enacted § 701(f), and at the same time to have included a clause aimed only at preserving for such determinations the other types of review whose supposed inadequacy was the very reason for the special-review provisions.
14
Under the Goverme nt's view, indeed, it is difficult to ascertain when the saving clause would even come into play: when the special provisions apply, presumably they must be used and a court would not grant injunctive or declaratory judgment relief unless the appropriate administrative procedure is exhausted.13 When the special procedure does not apply, the Government deems the saving clause likewise inapplicable. The Government, to be sure, does present a rather far-fetched example of what it considers a possible application of the relief saved by § 701(f)(6), but merely to state it reveals the weakness of the Government's position.14 We prefer to take the saving clause at its face value, and to read it in harmony with the policy favoring judicial review expressed in the Administrative Procedure Act and this Court's decisions.
15
The only other argument of the Government requiring attention on the preclusive effect of the statute is that Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088, counsels a restrictive view of judicial review in the food and drug area. In that case the Food and Drug Administrator found that there was probable cause that a drug was 'adulterated' because it was misbranded in such a way as to be 'fraudulent' or 'misleading to the injury or damage of the purchaser or consumer.' § 304(a), 21 U.S.C. § 334(a). Multiple seizures were ordered through libel actions. The manufacturer of the drug brought an action to challenge directly the Administrator's finding of probable cause. This Court held that the owner could raise his constitutional, statutory, and factual claims in the libel actions themselves, and that the mere finding of probable cause by the Administrator could not be challenged in a separate action. That decision was quite clearly correct, but nothing in its reasoning or holding has any bearing on this declaratory judgment action challenging a promulgated regulation.
16
The Court in Ewing first noted that the 'administrative finding of probable cause required by § 304(a) is merely the statutory prerequisite to the bringing of the lawsuit,' at which the issues are aired. 339 U.S., at 598, 70 S.Ct., at 872. Such a situation bears no analogy to the promulgation, after formal procedures, of a rule that must be followed by an entire industry. To equate a finding of probable cause for proceeding against a particular drug manufacturer with the promulgation of a self-operative industry-wide regulation, such as we have here, would immunize nearly all agency rulemaking activities from the coverage of the Administrative Procedure Act.
17
Second, the determination of probable cause in Ewing has 'no effect in and of itself,' 339 U.S., at 598, 70 S.Ct., at 872; only some action consequent upon such a finding could give it legal life. As the Court there noted, like a determination by a grand jury that there is probable cause to proceed against an accused, it is a finding which only has vitality once a proceeding is commenced, at which time appropriate challenges can be made. The Court also noted that the unique type of relief sought by the drug manufacturer was inconsistent with the policy of the Act favoring speedy action against goods in circulation that are believed on probable cause to be adulterated.
18
Also, such relief was not specifically granted by the Act, which did provide another type of relief in the form of a consolidation of multiple libel actions in a convenient venue. 339 U.S., at 602, 70 S.Ct., at 874.
19
The drug manufacturer in Ewing was quite obviously seeking an unheard-of form of relief which, if allowed, would have permitted interference in the early stages of an administrative determination as to specific facts, and would have prevented the regular operation of the seizure procedures established by the Act. That the Court refused to permit such an action is hardly authority for cutting off the well-established jurisdiction of the federal courts to hear, in appropriate cases, suits under the Declaratory Judgment Act and the Administrative Procedure Act challenging final agency action of the kind present here.
20
We conclude that nothing in the Food, Drug, and Cosmetic Act itself precludes this action.
II.
21
A further inquiry must, however, be made. The injunctive and declaratory judgment remedies are discretionary, and courts traditionally have been reluctant to apply them to administrative determinations unless these arise in the context of a controversy 'ripe' for judicial resolution. Without undertaking to survey the intricacies of the ripeness doctrine15 it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.
22
As to the former factor, we believe the issues presented are appropriate for judicial resolution at this time. First, all parties agree that the issue tendered is a purely legal one: whether the statute was properly construed by the Commissioner to require the established name of the drug to be used every time the proprietary name is employed.16 Both sides moved for summary judgment in the District Court, and no claim is made here that further administrative proceedings are contemplated. It is suggested that the justification for this rule might vary with different circumstances, and that the expertise of the Commissioner is relevant to passing upon the validity of the regulation. This of course is true, but the suggestion overlooks the fact that both sides have approached this case as one purely of congressional intent, and that the Government made no effort to justify the regulation in factual terms.
23
Second, the regulations in issue we find to be 'final agency action' within the meaning of § 10 of the Administrative Procedure Act, 5 U.S.C. § 704, as construed in judicial decisions. An 'agency action' includes any 'rule,' defined by the Act as 'an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy,' §§ 2(c), 2(g), 5 U.S.C. §§ 551(4), 551(13). The cases dealing with judicial review of administrative actions have interpreted the 'finality' element in a pragmatic way. Thus in Columbia Broadcasting System v. United States, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563, a suit under the Urgent Deficiencies Act, 38 Stat. 219, this Court held reviewable a regulation of the Federal Comu nications Commission setting forth certain proscribed contractual arrangements between chain broadcasters and local stations. The FCC did not have direct authority to regulate these contracts, and its rule asserted only that it would not license stations which maintained such contracts with the networks. Although no license had in fact been denied or revoked, and the FCC regulation could properly be characterized as a statement only of its intentions, the Court held that 'Such regulations have the force of law before their sanctions are invoked as well as after. When as here they are promulgated by order of the Commission and the expected conformity to them causes injury cognizable by a court of equity, they are appropriately the subject of attack * * *.' 316 U.S., at 418—419, 62 S.Ct., at 1201.
24
Two more recent cases have taken a similarly flexible view of finality. In Frozen Food Express v. United States, 351 U.S. 40, 76 S.Ct. 569, 100 L.Ed. 910, at issue was an Interstate Commerce Commission order specifying commodities that were deemed to fall within the statutory class of 'agricultural commodities.' Vehicles carrying such commodities were exempt from ICC supervision. An action was brought by a carrier that claimed to be transporting exempt commodities, but which the ICC order had not included in its terms. Although the dissenting opinion noted that this ICC order had no authority except to give notice of how the Commission interpreted the Act and would have effect only if and when a particular action was brought against a particular carrier, and argued that 'judicial intervention (should) be withheld until administrative action has reached its complete development,' 351 U.S., at 45, 76 S.Ct. at 572, the Court held the order reviewable.
25
Again, in United States v. Storer Broadcasting Co., 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081, the Court held to be a final agency action within the meaning of the Administrative Procedure Act an FCC regulation announcing a Commission policy that it would not issue a television license to an applicant already owning five such licenses, even though no specific application was before the Commission. The Court stated: 'The process of rulemaking was complete. It was final agency action * * * by which Storer claimed to be 'aggrieved." 351 U.S. at 198, 76 S.Ct., at 768.
26
We find decision in the present case following a fortiori from these precedents. The regulation challenged here, promulgated in a formal manner after announcement in the Federal Register and consideration of comments by interested parties17 is quite clearly definitive. There is no hint that this regulation is informal, see Helco Products Co. v. McNutt, 78 U.S.App.D.C. 71, 137 F.2d 681, 149 A.L.R. 345, or only the ruling of a subordinate official, see Swift & Co. v. Wickham, D.C., 230 F.Supp. 398, 409, aff'd, 2 Cir., 364 F.2d 241, or tentative. It was made effective upon publication, and the Assistant General Counsel for Food and Drugs stated in the District Court that compliance was expected.
27
The Government argues, however, that the present case can be distinguished from cases like Frozen Food Express on the ground that in those instances the agency involved could implement its policy directly, while here the Attorney General must authorize criminal and seizure actions for violations of the statute. In the context of this case, we do not find this argument persuasive. These regulations are not meant to advise the Attorney General, but purport to be directly authorized by the statute. Thus, if within the Commissioner's authority, they have the status of law and violations of them carry heavy criminal and civil sanctions. Also, there is no representation that the Attorny General and the Commissioner disagree in this area; the Justice Department is defending this very suit. It would be adherence to a mere technicality to give any credence to this contention. Moreover, the agency does have direct authority to enforce this regulation in the context of passing upon applications for clearance of new drugs, § 505, 21 U.S.C. § 355, or certification of certain antibiotics, § 507, 21 U.S.C. § 357.
28
This is also a case in which the impact of the regulations upon the petitioners is sufficiently direct and immediate as to render the issue appropriate for judicial review at this stage. These regulations purport to give an authoritative interpretation of a statutory provision that has a direct effect on the day-to-day business of all prescription drug companies; its promulgation puts petitioners in a dilemma that it was the very purpose of the Declaratory Judgment Act to ameliorate.18 As the District Court found on the basis of uncontested allegations, 'Either they must comply with the every time requirement and incur the costs of changing over their promotional material and labeling or they must follow their present course and risk prosecution.' 228 F.Supp. 855, 861. The regulations are clear-cut, and were made effective immediately upon publication; as noted earlier the agency's counsel represented to the District Court that immediate compliance with their terms was expected. If petitioners wish to comply they must change all their labels, advertisements, and promotional materials; they must destroy stocks of printed matter; and they must invest heavily in new printing type and new supplies. The alternative to compliance—continued use of material which they believe in good faith meets the statutory requirements, but which clearly does not meet the regulation of the Commissioner—may be even more costly. That course would risk serious criminal and civil penalties for the unlawful distribution of 'misbranded' drugs.19
29
It is relevant at this juncture to recognize that petitioners deal in a sensitive industry, in which public confidence in their drug products is especially important. To require them to challenge these regulations only as a defense to an action brought by the Government might harm them severely and unnecessarily. Where the legal issue presented is fit for judicial resolution, and where a regulation requires an immediate and significant change in the plaintiffs' conduct of their affairs with serious penalties attached to noncompliance, access to the courts under the Administrative Procedure Act and the Declaratory Judgment Act must be permitted, absent a statutory bar or some other unusual circumstance, neither of which appears here.
30
The Government does not dispute the very real dilemma in which petitioners are placed by the regulation, but contends that 'mere financial expense' is not a justification for pre-enforcement judicial review. It is of course true that cases in this Court dealing with the standing of particular parties to bring an action have held that a possible financial loss is not by itself a sufficient interest to sustain a judicial challenge to governmental action. Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078; Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108. But there is no question in the present case that petitioners have sufficient standing as plaintiffs: the regulation is directed at them in particular; it requirs them to make significant changes in their everyday business practices; if they fail to observe the Commissioner's rule they are quite clearly exposed to the imposition of strong sanctions. Compare Columbia Broadcasting System v. United States, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563; 3 Davis, Administrative Law Treatise, c. 21 (1958). This case is, therefore, remote from the Mellon and Perkins cases.
31
The Government further contends that the threat of criminal sanctions for noncompliance with a judicially untested regulation is unrealistic; the Solicitor General has represented that if court enforcement becomes necessary, 'the Department of Justice will proceed only civilly for an injunction * * * or by condemnation.' We cannot accept this argument as a sufficient answer to petitioners' petition. This action at its inception was properly brought and this subsequent representation of the Department of Justice should not suffice to defeat it.
32
Finally, the Government urges that to permit resort to the courts in this type of case may delay or impede effective enforcement of the Act. We fully recognize the important public interest served by assuring prompt and unimpeded administration of the Pure Food, Drug, and Cosmetic Act, but we do not find the Government's argument convincing. First, in this particular case, a pre-enforcement challenge by nearly all prescription drug manufacturers is calculated to speed enforcement. If the Government prevails, a large part of the industry is bound by the decree; if the Government loses, it can more quickly revise its regulation.
33
The Government contends, however, that if the Court allows this consolidated suit, then nothing will prevent a multiplicity of suits in various jurisdictions challenging other regulations. The short answer to this contention is that the courts are well equipped to deal with such eventualities. The venue transfer provision, 28 U.S.C. § 1404(a), may be invoked by the Government to consolidate separate actions. Or, actions in all but one jurisdiction might be stayed pending the conclusion of one proceeding. See American Life Ins. Co. v. Stewart, 300 U.S. 203, 215—216, 57 S.Ct. 377, 380, 81 L.Ed. 605, 111 A.L.R. 1268. A court may even in its discretion dismiss a declaratory judgment or injunctive suit if the same issue is pending in litigation elsewhere. Maryland Cas. Co. v. Consumers Finance Service, 3 Cir., 101 F.2d 514; Carbide & Carbon Chemicals Corp. v. United States I. Chemicals, 4 Cir., 140 F.2d 47; Note, Availability of a Declaratory Judgment When Another Suit Is Pending, 51 Yale L.J. 511 (1942). In at least one suit for a declaratory judgment, relief was denied with the suggestion that the plaintiff intervene in a pending action elsewhere. Automotive Equip., Inc. v. Trico Prods. Corp., D.C., 11 F.Supp. 292; See Allstate Ins. Co. v. Thompson, D.C., 121 F.Supp. 696.
34
Further, the declaratory judgment and injunctive remedies are equitable in nature, and other equitable defenses may be interposed. If a multiplicity of suits are undertaken in order to harass the Government or to delay enforcement, relief can be denied on this ground alone. Truly v. Wanzer, 5 How. 141, 142, 12 L.Ed. 88; cf. Brillhart v. Excess Ins. Co., 316 U.S. 491, 495, 62 S.Ct. 1173, 1175, 86 L.Ed. 1620. The defense of laches could be asserted if the Government is prejudiced by a delay, Southern Pac. Co. v. Bogert, 250 U.S. 483, 488—490, 39 S.Ct. 533, 535—536, 63 L.Ed. 1099; 2 Pomeroy's Equity Jurisprudence §§ 419c—d (5th ed. Symons, 1941). And courts may even refuse declaratory relief for the nonjoinder of interested parties who are not, technically speaking, indispensable. Cf. Samuel Goldwyn, Inc. v. United Artists Corp., 3 Cir., 113 F.2d 703; 6A Moore, Federal Practice 57.25 (2d ed. 1966).
35
In addition to all these safeguards against what the Government fears, it is important to note that the institution of this type of action does not by itself stay the effectiveness of the challenged regulation. There is nothing in the record to indicate that petitioners have sought to stay enforcement of the 'every time' regulation pending judicial review. See 5 U.S.C. § 705. If the agency believes that a suit of this type will significantly impede enforcement or will harm the public interest, it need not postpone enforcement of the regulation and may oppose any motion for a judicial stay on the part of those challenging the regulation. Ibid. It is scarcely to be doubted that a court would refuse to postpone the effective date of an agency action if the Government could show, as it made no effort to do here, that delay would be detrimental to the public health or safety. See Associated Securities Corp. v. SEC, 10 Cir., 283 F.2d 773, 775, where a stay was denied because 'the petitioners * * * (had) not sustained the burden of establishing that the requested stays will not be harmful to the public interest * * *'; see Eastern Air Lines v. CAB, 2 Cir., 261 F.2d 830; cf. Scripps-Howard Radio v. FCC, 316 U.S. 4, 10—11, 62 S.Ct. 875, 880, 86 L.Ed. 1229; 5 U.S.C. § 705.
36
Lastly, although the Government presses us to reach the merits of the challenge to the regulation in the event we find the District Court properly entertained this action, we believe the better practice is to remand the case to the Court of Appeals for the Third Circuit to review the District Court's decision that the regulation was beyond the power of the Commissioner.20
37
Reversed and remanded.
38
Mr. Justice BRENNAN took no part in the consideration or decision of this case.
1
That is, a suit brought by one before any attempted enforcement of the statute or regulation against him.
2
See H.R.Rep. No. 1980, 79th Cong., 2d Sess., 41 (1946), U.S.Code Cong.Serv. 1946, p. 1195: 'To preclude judicial review under this bill a statute, if not specific in withholding such review, must upon its face give clear and convincing evidence of an intent to withhold it. The mere failure to provide specially by statute for judicial review is certainly no evidence of intent to withhold review.' See also S.Rep. No. 752, 79th Cong., 1st Sess., 26 (1945).
3
Embodied in §§ 701(e), (f), 21 U.S.C. §§ 371(e), (f), and discussed hereafter. Section 701(e) provides a procedure for the issuance of regulations under certain specifically enumerated statutory sections. Section 701(f) establishes a procedure for direct review by a court of appeals of a regulation promulgated under § 701(e).
4
The Administrative Procedure Act was enacted in 1946, 60 Stat. 237.
5
The Declaratory Judgment Act was enacted in 1934, 48 Stat. 955.
6
See, e.g., the discussion of judicial review under the equity power in the House of Representatives during the debate on these provisions. 83 Cong.Rec. 7891—7896 (1938).
7
See, e.g., 83 Cong.Rec. 7783 (remarks of Representative Leavy) (1938); Statement of Professor David F. Cavers before a Subcommittee of the Senate Committee on Commerce on S. 1944, 73d Cong., 2d Sess. (1933), reprinted in Dunn, Federal Food, Drug, and Cosmetic Act, A Statement of Its Legislative Record 1110 (1938).
8
See, e.g., 83 Cong.Rec. 7772—7773, 7781—7784, 7893—7899 (1938).
9
See, e.g., the discussion of the conference report, 83 Cong.Rec. 9096—9098 (1938).
10
See, e.g., 83 Cong.Rec. 7772, 7892, 9092—9093 (1938).
11
See Toilet Goods Assn. v. Gardner, 360 F.2d 677, 683, where the court noted that 'The agency determinations specifically reviewable under § 701(e) relate to such technical subjects as chemical properties of particular products and the formulation and application of safety standards for protecting public health; Congress naturally did not wish courts to consider such matters without the benefit of the agency's views after an evidentiary hearing before it.'
12
H.R.Conf.Rep. No. 2716, 75th Cong., 3d Sess. 25 (1938); 83 Cong.Rec. 8731—8738 (1938) (Senate agreement to the conference report).
13
See Notes of the Advisory Committee on Federal Rule of Civil Procedure 57, reprinted in 28 U.S.C.App., at 6136: 'A declaration may not be rendered if a special statutory proceeding has been provided for the adjudication of some special type of case * * *.' See also 6A Moore, Federal Practice § 57.08(3) (2d ed. 1966).
14
The Government apparently views the clause as applying only when regulations falling within the special-review procedure are promulgated without affording the required public notice and opportunity to file objections and to request a public hearing. In such a case alone, the Government asserts, 'an equity proceeding or a declaratory judgment action * * * might be entertained on the ground that the statutory procedures had not been followed.' Brief, p. 28.
15
See 3 Davis, Administrative Law Treatise, c. 21 (1958); Jaffe, Judicial Control of Administrative Action, c. 10 (1965).
16
While the 'every time' issue has been framed by the parties in terms of statutory compulsion, we think that its essentially legal character would not be different had it been framed in terms of statutory authorization for the requirement.
17
Compare similar procedures followed in Frozen Food Express, supra, 351 U.S. at 41—42, 76 S.Ct. at 570, and Storer, supra, 351 U.S. at 193—194, 76 S.Ct. at 765. The procedure conformed with that prescribed in § 4 of the Administrative Procedure Act, 5 U.S.C. § 1003.
18
See S.Rep. No. 1005, 73d Cong., 2d Sess., 2—3 (1934); Borchard, Challenging 'Penal' Statutes by Declaratory Action, 52 Yale L.J. 445, 454 (1943).
19
Section 502(e)(1)(B) declares a drug not complying with this labeling requirement to be 'misbranded.' Section 301, 21 U.S.C. § 331, designates as 'prohibited acts' the misbranding of drugs in interstate commerce. Such prohibited acts are subject to injunction, § 302, 21 U.S.C. § 332, criminal penalties, § 303, 21 U.S.C. § 333, and seizure, § 304(a), 21 U.S.C. § 334(a).
20
A totally separate issue raised in the petition for certiorari and argued by the parties in their briefs concerns the dismissal of the complaint as to certain of the plaintiffs on the ground that venue was improper as to them. All the petitioners asserted that venue was proper in Delaware not only because some of them are incorporated there but also under 28 U.S.C. § 1391(e)(4), allowing an action against a government official in any judicial district in which 'the plaintiff resides * * *.' It is contended that § 1391(e)(4) must be read to incorporate the definition of 'residence' set out in 28 U.S.C. § 1391(c): 'A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.' The issue of construction is whether § 1391(c) should be read as defining corporate venue only when the corporation is a defendant, or whether it should either (1) be adopted for corporate residence in all cases when a corporation is a plaintiff or (2) at least as the definition of 'resides' as used in § 1391(e)(4).
This question is a difficult one, with farreaching effects, and we think it is appropriate to dismiss our writ of certiorari as to this question for the following two reasons. First, the Court of Appeals in affirming the District Court on this issue did not explicitly endorse the lower court's ruling but held only: 'We find no prejudicial error in the dismissal of the complaint as to these plaintiffs * * *.' 352 F.2d 524, 525. Review of an issue of this importance is best left to a case where it has been fully dealt with by a court of appeals. Second, one of the plaintiffs whose complaint was not dismissed is the Pharmaceutical Manufacturers Association, of which all the corporate petitioners are members, and we think it should be considered that they are adequately protected in this suit by its participation, as well as by the participation of the remaining drug companies whose interests are identical to those of the petitioners whose complaints were dismissed. Cf. Mishkin v. State of New York, 383 U.S. 502, 512—514, 86 S.Ct. 958, 965—966, 16 L.Ed.2d 56. Moreover, in the further course of this litigation it will be open to the dismissed plaintiffs to seek amicus curiae status.
| 89
|
387 U.S. 397
87 S.Ct. 1608
18 L.Ed.2d 847
AMERICAN TRUCKING ASSOCIATIONS, Inc., et al., Appellants,v.The ATCHISON, TOPEKA, AND SANTA FE RAILWAY COMPANY et al. NATIONAL AUTOMOBILE TRANSPORTERS ASSOCIATION OF DETROIT, MICHIGAN, Appellant, v. The ATCHISON, TOPEKA, AND SANTA FE RAILWAY COMPANY et al. UNITED STATES et al., Appellants, v. The ATCHISON, TOPEKA, AND SANTA FE RAILWAY COMPANY et al.
Nos. 57, 59, and 60.
Argued April 13 and 17, 1967.
Decided May 29, 1967.
Rehearings Denied Oct. 9, 1967.
See 88 S.Ct. 11.
[Syllabus from pages 397-399 intentionally omitted]
Robert W. Ginnane and Richard R. Sigmon, Washington, D.C., for appellants.
Thormund A. Miller, Francis M. Shea, Washington, D.C., Paul R. Duke, Philadelphia, Pa., and D. Robert Thomas, Chicago, Ill., for appellees.
Mr. Justice FORTAS delivered the opinion of the Court.
1
These three cases present the following question: Does the Interstate Commerce Commission have authority to promulgate rules providing (1) that railroads which offer trailer-on-flatcar (TOFC or 'piggyback') service to the public under open-tariff publications must make such service available on the same terms to motor and water common and contract carriers, and (2) that motor and water carriers may, subject to certain conditions, utilize TOFC facilities in the performance of their authorized service? Ex parte 230, Substituted Service Charges and Practices of For-Hire Carriers and Freight Forwarders (Piggyback Service), 322 I.C.C. 301 (1964).
2
A three-judge district court, convened under 28 U.S.C. §§ 1336, 2284, 2321—2325, at the request of various railroads and freight forwarders, set aside the rules which the ICC had promulgated in a rulemaking proceeding initiated on its own motion. 244 F.Supp. 955 (D.C.N.D.Ill.1965). The case is here on direct appeal. 28 U.S.C. §§ 1253 and 2101(b). 384 U.S. 902, 86 S.Ct. 1337, 16 L.Ed.2d 356 (1966).
3
The appellees are the railroads and freight forwarders who initiated the District Court proceeding. The appellants are the United States and the ICC (No. 60), together with the American Trucking Associations, Inc., et al. (No. 57), and the National Automobile Transporters Association (No. 59), which intervened below as defendants.
4
More specifically, the issue presented is the validity of Rules 2 and 3, promulgated by the Commission in Ex parte 230, supra. 49 CFR §§ 500.2 and 500.3 (Supp.1967). Rule 2 provides that 'TOFC service, if offered by a rail carrier through its open-tariff publications, shall be made available' at the same charge to all other persons. In substance, it is a paraphrase of § 2 of the Interstate Commerce Act, 24 Stat. 379, as amended, 49 U.S.C. § 2 (hereinafter cited only to U.S.C.). Rule 3 provides that, with certain qualifications and subject to certain conditions, 'motor common and contract carriers, water common and contract carriers, and freight forwarders may utilize TOFC service in the performance of all or any portion of their authorized service through the use of open-tariff TOFC rates published by a rail carrier.' The District Court held that the Commission has no authority to compel railroads to make opentariff TOFC service available to such carriers, and that such carriers may not be authorized to use TOFC except if and as the railroad consents.
5
The background of the controversy may be briefly described. The growth of trailer-on-flatcar service has been 'explosive' since the latter half of the 1950's.1 From the time of passage in 1935 of Part II of the Act regulating motor carriers, until the institution of the present proceeding, the Commission appears to have regarded trailer-on-flatcar service not as bimodal, but as an adjunct of transportation by railroad—as a facility essentially of, by and for the railroads. This attitude is summed up by the ICC's definition of TOFC in 1954 in Movement of Highway Trailers by Rail, 293 I.C.C. 93 (the so-called New Haven case), which provided the basic legal framework upon which the development of TOFC traffic has been based. In that case, the Commission described TOFC or piggyback service as transportation of 'a freight-laden trailer secured to a flatcar, which in turn is coupled in a train being drawn by a locomotive over steel rails laid on the railroad's right-of-way * * *.' Id., at 100—101.2
6
Even prior to the New Haven case, beginning in 1939, in Substituted Freight Service, 232 I.C.C. 683, it was the Commission's position that a railroad could grant or deny TOFC service to common carriers by motor.3 Even if the railroad offered such service generally to the public, it could withhold it from for-hire motor carriers. Except for limited uses of rail open tariffs permitted by certain railroads,4 contract and common carriers by motor participated in piggyback service only by agreement, including through route-joint rate arrangements between a railroad and a trucker (see Plan V, infra), and railroad acceptance of trailers or containers of truckers, the shipment moving under motor carrier tariffs and the railroad's compensation being based upon a division of charges arrived at through negotiations between the carriers (Plan I, infra). These arrangements had to be voluntary for it has been the prevailing view that the railroads, as common carriers, had no duty to service truckers under their open tariffs, and, although § 216(c), 49 U.S.C. § 316(c), authorizes motor common carriers to establish through routes and joint rates with rail common carriers, the Commission had no power to compel such joint arrangements.
7
According to the Commission, five basic forms of piggyback service evolved (322 I.C.C., at 304—305, 309—312). They are:
Plan I (Joint Intermodal):
8
Railroad movement of trailers or containers of motor common carriers, with the shipment moving on one bill of lading and billing being done by the trucker. Traffic moves under rates in regular motor carrier tariffs, and the railroad's compensation is arrived at by negotiation between the two carriers.
Plan II (All-Rail):
9
Door-to-door service performed by the railroad, which moves its own trailers or containers on flatcars under open tariffs usually similar to those of truckers.
Plan III (All-Rail):
10
Ramp-to-ramp rates to private shippers and freight forwarders, based on a flat open-tariff charge, regardless of the contents of trailers or containers, which are usually owned or leased by freight forwarders or shippers. No pick-up or delivery is performed by the railroad.
Plan IV (All-Rail):
11
Flat open-tariff charge for loaded- or empty-car movement, the railroad furnishing only power and rails. Shipper or forwarder furnishes a trailer or container-loaded flatcar, either owned or leased.
Plan V (Joint Intermodal):
12
Joint railroad-truck or other combination of coordinated service rates. Either mdoe may solicit traffic for through movement, and traffic moves on originating carrier's bill of lading.
13
While data are not available precisely to define the growth of traffic under the various plans, the evidence indicates that major growth has been primarily in the all-rail, open-tariff plans—that is, plans under which traffic moves at rail rates and on rail billings.Th e Commission's summary of responses to piggyback questionnaires, contained in the Record, shows that virtually all of the reporting railroads participate in Plans II and III and about three-fourths participate in Plan IV. However, only 'somewhat more than half' of the reporting railroads participate in truckerrail arrangements under either Plan I or V, and traffic in Plan V (joint railroad-truck rates-through routes) 'generally is extremely limited.' A number of the largest railroads do not offer to move trailers or containers for motor carriers on motor carrier bills of lading and billing under regular motor carrier tariffs (Plan I,),5 or offer it only for limited types of traffic such as automobiles or only to their own subsidiaries. Over 80% of rail movement of motor carrier-rail piggyback is under Plan I. ICC Bur. of Econ., Piggyback Traffic Characteristics 21 (1966).
14
Faced with the explosive growth of piggyback service on the basis of principles which had evolved in the infancy of the development of piggyback, the Commission by notice dated June 29, 1962, commenced this proceeding which was its 'first general investigation of what is probably the most significant recent development in transportation—trailer-on-flatcar or piggybank service.' 322 I.C.C., at 303. Proposed rules were furnished to participants, opportunity was given to all of them to file statements, and an examiners' report was filed. After exceptions and oral argument, the Commission rendered its decision on March 16, 1964. The Commission stated that 'It is our purpose and our hope to encourage the growth of this transportation phenomenon.' 322 I.C.C., at 322. The rules which it prescribed incorporate the basic principles here at issue: that 'when TOFC service is offered by a rail carrier to the public generally,' it should likewise be available to motor or water common or contract carriers in lieu of their authorized transportation between service points, or to for-hire carriers. Id., at 336. These rules also include ancillary or implementing provisions which are not here at issue; for example, it is provided that the motor carrier must give notice in its tariff publication if TOFC is to be used, and the user of the water or motor carrier may specify 'that in any particular instance TOFC service not be utilized' (49 CFR §§ 500.3(b), (c)(d) (Supp.1967)); and that these carriers may tender and receive traffic, TOFC, only at points that they are authorized to serve. Id., § 500.3(e).
15
The three-judge District Court concluded that Rules 2 and 3 (and Rule 5, id., § 500.5, insofar as it amplified those Rules) exceeded the Commission's authority and set them aside. In substance it held that the Interstate Commerce Act did not forbid a railroad to refuse to carry the trailers or containers of a competing mode of carrier; that the structure and plan of the Act, as well as the specific absence of compulsory power to the Commission in § 216(c), which authorizes voluntary joint rates and through routes by motor and rail carriers indicated that the ICC is not at liberty to require the railroads to provide TOFC service to competing modes; that provisions of the Act regulating freight forwarders impelled the same conclusions; and that the Commission's long history of support for the position which its rules now repudiate, as well as legislative history, compelled rejection, of the rules now promulgated. We disagree.
I.
16
We first consider Rule 2, which raises the question whether the Commission may be rule require that if a railroad offers TOFC service to the ub lic through its open-tariff publications, it must make that service available to 'any person' without discrimination. We begin by noting the obvious fact that the Interstate Commerce Act codified the common-law obligations of railroads as common carriers. From the earliest days, common carriers have had a duty to carry all goods offered for transportation. See, e.g., New Jersey Steam Nav. Co. v. Merchants Bank of Boston, 6 How. 344, 382—383, 12 L.Ed. 465 (1848). Refusal to carry the goods of some shippers was unlawful. Rates were required to be reasonable, but discrimination in the form of unequal rates as among shippers was not forbidden. In England, legislation to proscribe unequal rates, from which the antidiscrimination language of § 2 of the Interstate Commerce Act derives (ICC v. Delaware, L. & W.R. Co., 220 U.S. 235, 253, 31 S.Ct. 392, 398 (1911)), was enacted in 1845. The Railway Clauses Consolidation Act of 1845, 8 & 9 Vict., c. 20, § LXXXVI et seq. In this country, the railroads had a practical monopoly of freight transportation, and secret rebates, special rates to favored shippers, and discriminations flourished. It was this situation that led to enactment of the Interstate Commerce Act in 1887. 1 Sharfman, The Interstate Commerce Commission 17—19 (1931); Louisville & N.R. Co. v. United States, 282 U.S. 740, 749—750, 51 S.Ct. 297, 300—301, 75 L.Ed. 672 (1931).
17
Section 1(4) of the Act, 49 U.S.C. § 1(4), provides that it shall be the duty of common carriers by rail to provide transportation 'upon reasonable request therefor' and to establish just and reasonable rates. Section 2, 49 U.S.C. § 2, prohibits discriminatory rates or charges. Section 3(1), 49 U.S.C. § 3(1), forbids undue preferences or advantages, and undue or unreasonable prejudices or disadvantages to any person, area or particular description of traffic. The Act does not contain any provision expressly exempting traffic offered by carriers by motor vehicle from these broad common-carrier obligations of the railroads. On the contrary, these sections of the Act, read in light of the historic obligations and duties of common carriers and the large number of decisions of the Commission, and of the courts in this country and in England, indicate, presumptively at least, that railroads may not offer the service of transporting trailers for other shippers and deny that service to motor carriers.6 Indeed, as we have observed, the Commission's Rule 2 is practically a paraphrase of § 2 of the Act. It provides that if a rail carrier through its open-tariff publications offers TOFC services, it shall make the same available 'to any person' at the same charge. It is, of course, of no consequence that the Act does not expressly command that the railroads furnish this service to motor carriers. Their obligation as common carriers is comprehensive and exceptions are not to be implied. The fact that the person tendering traffic is a competitor does not permit the railroad to discriminate against him or in his favor. See ICC v. Delaware, L. & W.R. Co., 220 U.S. 235, 31 S.Ct. 392 (1911) (unlawful for railroads to charge less-than-carload rates for carload shipments tendered by freight forwarders); ICC v. Baltimore & O.R. Co., 225 U.S. 326, 32 S.Ct. 742, 56 L.Ed. 1107 (1912) (lower rates on coal shipped by another railroad for its own use as fuel held unlawful). Cf. Wight v. United States, 167 U.S. 512, 17 S.Ct. 822, 42 L.Ed. 258 (1897). As this Court said in Delaware, L. & W.R. Co., supra:
18
'The contention that a carrier, when goods are tendered to him for transportation, can make the mere ownership of the goods the test of the duty to carry, or, what is equivalent, may discriminate in fixing the charge for carriage, not upon any difference inhearing in the goods or in the cost of the service rendered in transportation them, but upon the mere circumstance that the shipper is or is not the real owner of the goods, is so in conflict with the obvious and elementary duty resting upon a carrier, and so destructive of the rights of shippers, as to demonstrate the unsoundness of the proposition by its mere statement.' 220 U.S., at 252, 31 S.Ct., at 398.
19
This Court was faced with an intermodal problem, comparable to that in the present cases in United States v. Pennsylvania R. Co., 323 U.S. 612, 65 S.Ct. 471, 89 L.Ed. 499 (1945) (the Seatrain case). The railroads refused to interchange their freight cars with Seatrain, a water carrier, for interstate transportation by Seatrain in competition with the railroads. The ICC ordered the railroads to desist from this practice, and the railroads brought an action to set aside its order. The railroads contended that the Transportation Act of 1940, 54 Stat. 898, did not in 'specific language' authorize the Commission to require them to furnish the disputed facility to a competing water carrier. But this Court rejected that contention. It said:
20
'There is no language in the present Act, which specifically commands that railroads must interchange their cars with connecting water lines. We cannot agree with the contention that the absence of specific language indicates a purpose of Congress not to require such an interchange. True, Congress has specified with precise language some obligations which railroads must assume. But all legislation dealing with this problem since the first Act in 1887, 24 Stat. 379, has contained broad language to indicate the scope of the law. The very complexities of the subject have necessarily caused Congress to cast its regulatory provisions in general terms. Congress has, in general, left the contents of these terms to be spelled out in particular cases by administrative and judicial action, and in the light of the congressional purpose to foster an efficient and fair national transportation system. Cf. Chicago, R.I. & P.R. Co. v. United States, 274 U.S. 29, 36, 47 S.Ct. 486, 71 L.Ed. 911; Interstate Commerce Commission v. Railway Labor Executives Assn., 315 U.S. 373, 376—377, 62 S.Ct. 717, 86 L.Ed. 904.' 323 U.S., at 616, 65 S.Ct. at 473.
21
In Seatrain, this Court emphatically rejected the analysis upon which the District Court here essentially based its position that since the Act regulates rail, motor, and water carriers separately, in Titles I, II, and III, the Commission may not compel the mutual furnishing of services and facilities other than as expressly directed. Recognizing that in the case of water carriers (as distinguished from motor carriers), the Act specifically directs railroads to establish through routes with them, the Court held that this is not the end of the railroads' obligation or the limit of the Commission's power. On the contrary, the Court, relying on the National Transportation Policy (49 U.S.C. preceding § 1), held that the Act is designed 'to provide a completely integrated interstate regulatory system over motor, railroad, and water carriers * * *' 323 U.S., at 618—619, 65 S.Ct., at 475, and that the Commission therefore had powers commensurate with that goal. In this connection, the Court said:
22
'The 1940 Transportation Act is divided into three parts, the first relating to railroads, the second to motor vehicles, and the third water carriers. That Act, each previous amendment of the original 1887 Act, expanded the scope of regulation in this field, and correlatively broadened the Commission's powers. The interrelationship of the three parts of the Act was made manifest by its declaration of a 'national transportation police of the Congress to provide for fair and impartial regulation of all modes of transportation subject to the provisions of this Act, so administered as to recognize and preserve the inherent advantages of each.' The declared objective was that of 'developing, coordinating, and preserving a national transportation system by water, highway, and rail, * * * adequate to meet the needs of the commerce of the United States * * *.' Congress further admonished that 'all of the provisions of this Act shall be administered and enforced with a view to carrying out the above declaration of policy.' 54 Stat. 899.' 323 U.S., at 616—617, 65 S.Ct., at 474.
23
In view of this, we cannot accept arguments based upon arguable inference from nonspecific statutory language, limiting the Commission's power to adopt rules which, essentially, reflect its judgment in light of current facts as to the proper interrelationship of several modes of transportation with respect to an important new development. For example, § 216(c), 49 U.S.C. § 316(c), authorizes the railroads to enter into voluntary arrangements for through routes and joints rates with motor carriers. There is no Commission power to compel the railroads to do so, and it is argued that from this we should derive a congressional intent that the ICC may not compel the railroads to furnish services to the motor carriers in any circumstances. There is no basis for this vast leap from a particular authorization to a pervasive prohibition. See our discussion of Seatrain, supra.
24
It is also argued that a proviso to § 3(1) of the Act, 49 U.S.C. § 3(1), demonstrates that Congress did not intend to inhibit the railroads from discriminating against motor carriers. This contention, strenuously supported, is without merit. Section 3(1) broadly prohibits any common carrier by rail from giving 'any undue or unreasonable preference' to any person, locality or type of traffic. It then sets forth this proviso: 'Provided, however, That this paragraph shall not be construed to apply to discrimination, prejudice, or disadvantage to the traffic of any other carrier of whatever description.' This is language more notable for its awkwardness than for its clarity; but it certainly was not intended, as appellees urge, to grant license to discriminate against traffic offered to the railroad by another carrier. We have noted above that this Court has clearly held that such discrimination is not permissible. Moreover, there is an intelligible meaning which can be ascribed to the proviso and which is consistent with its history. The proviso means that the prohibition against 'undue or unreasonable preference or advantage' is not to be construed to forbid practices, otherwise lawful, solely because they operate to the prejudice of another carrier. It was in these terms that the language of the proviso was explained by Senator Wheeler, the bill's sponsor. The proviso was taken almost verbatim from § 216(d) of the Motor Carrier Act, 1935, 49 Stat. 558 (now 49 U.S.C. § 316(d)). Explaining it, Senator Wheeler said:
25
'Paragraph (d) * * * prohibits unjust discrimination or undue prejudice or disadvantage. The committee has added a provision that this prohibition shall not be construed to apply to the traffic of any other carrier of whatever description.
26
'In other words, some of the truck and bus operators were afraid that the railroads would come in and complain, and we added this provision so as doubly to protect the truck and bus operators.
27
'This provision is added to meet the objection of certain interests that the original paragraph might have been construed so as to make it unlawful for a motor carrier to charge a rate which would place a rail carrier or way other carrier at a disadvantage. This contention is not well founded in our judgment inasmuch as the provisions of this paragraph are substantially the same as those in section 3(1) of the Interstate Commerce Act, which has been in effect since 1887, and have always been interpreted as covering unequal and unjust re atment by a carrier of its patrons. However, as I said, to make assurance double sure, this provision was added.' 79 Cong.Rec. 5656 (1935). (Italics added.)
28
Accordingly, we are remitted to consideration of the provisions of the Act which, in the most general terms, require the railroads to perform as common carriers. It is not our duty, of course, to concern ourselves with a nice evaluation of the arguments as to whether the Commission pursued the course of wisdom in ordering the railroads to make piggyback service available to motor carriers if it is offered to others on opentariff rates. It is our task to scrutinize the Commission's authority, not the substance of its exercise. We conclude that, in light of the mandate of the National Transportation Policy, the Commission had authority derived from the commoncarrier obligations of the railroads as reflected in §§ 1(4), 2, and 3(1) of the Act to promulgate Rule 2 requiring that any railroad offering TOFC service through its open-tariff publications must make that service available 'to any person' on nondiscriminatory terms. We come, then, to Rule 3.
II.
29
Rule 3, in general, authorizes 'motor common and contract carriers, water common and contract carriers, and freight forwarders' to 'utilize TOFC service in the performance of all or any portion of their authorized service through the use of open-tariff TOFC rates published by a rail carrier.' At the outset, as discussed above, we reject the contention that the railroads, despite their common-carrier obligations and the absence of an exception thereto in the Act, may exclude carriers by competing modes of transportation from access to their publicly offered services and facilities; and we do not accept the argument that § 216(c), 49 U.S.C. § 316(c), which authorizes voluntary through route and joint rate arrangements between railroads and truckers, implies that the railroads have no other obligation to motor carriers and that no other obligation may be imposed upon them by the ICC in this respect. That contention is refuted by the Seatrain case, supra.
30
It is strenuously contended, however, that whatever may be the railroads' duty, common carriers by motor vehicle may not be authorized to substitute transportation by rail for the transportation by road which is the basis of their franchise except with the agreement of the railroad. It is this exception that saps the argument of some of its force, if not its fervor. One would assume that if the motor carriers are not authorized by their franchise under the Act to substitute transportation by rail for transportation by road, they could not do so with the consent of the railroads. But neither the railroads, most of which, by agreement, provide TOFC service to some motor carriers, nor the freight forwarders take this position. Nor did the court below. None of them urges the invalidity of Plan I as presently in use, which provides for trucker utilization of TOFC service with the railroad's concurrence.7 As the District Court put it: 'The policy explicit in Sections 216(c) (authorizing voluntary rail-truck through routes, discussed above) and 402(a)(5) (49 U.S.C. § 1002(a)(5), defining freight forwarders, discussed below), and implicit in the structure of the Interstate Commerce Act as a whole, does not allow a motor carrier to perform its authorized service simply by tendering the shipment to the railroad for transportation without the railroad's concurrence.' 244 F.Supp., at 967.8 (Italics added.) As we have discussed, this 'concurrence' of the railroads, where granted, permits truckers to use TOFC service not only pursuant to Plans I and V, supra, but also under Plan III and Plan IV, the latter being open-tariff arrangements. The argument of appellees and the reasoning of the District Court carefully concede that the motor carriers may, without violating the Act or their charters, utilize this substituted service.
31
But, regardless of this, there is no adequate reason to construe the Act so as to deprive the Commission of the power to authorize the carriers by motor vehicle to use TOFC when that service is offered by railroads to the public on open tariff. The Interstate Commerce Act defines a 'common carrier by motor vehicle' as 'any person which holds itself out to the general public to engage in transportation by motor vehicle.' 49 U.S.C. § 303(a)(14). This does not exclude joint arrangements with water carriers or rail carriers, which are expressly permitted by § 216(c) on a voluntary basis, and according to the appellants and the District Court it is not inconsistent with the use of open-tariff TOFC if the railroad is willing. Clearly, too, a trucker which utilizes a ferry to transport its trailer and its cargo is not violating the statute or its certificate. We may properly assume, therefore, that the Act cannot be construed to require that the trucker must always transport its cargo exclusively by road. Appellees and the District Court argue, however, that the following factors demonstrate that the Commission may not authorize motor carriers to use TOFC service on open tariffs: the long history of the Commission's construction and application of the Act contrary to its present position, the history of congressional consideration, and the provisions of the Act relating to freight forwarders.
32
It is true, as we have stated, that the Commission for over 25 years has insisted that railroad concurrence is essential for trucker use of TOFC services. In Substituted Freight Service, 232 I.C.C. 683, the Commission held that a person may not be both a carrier and a shipper as to the same service. See also Ringsby Truck Lines, Inc. v. Atchison, T. & S.F.R. Co., 263 I.C.C. 139, 141 (1945); and the New Haven case, 293 I.C.C. 93, 104—105 (1954). But see the earlier contrary holding in Trucks on Flat Cars Between Chicago and Twin Cities, 216 I.C.C. 435 (1936). The Commission's Report argues that Substituted Freight Service, correctly understood, does not proscribe the kind of substituted service here at issue, 'in which one common carrier service is substituted for another through the use of an open-tariff rate of the carrier performing the substituted service provided that proper notice is given in the tariff publication of the carrier using the substituted service.' 322 I.C.C., at 333. The Commission also argues that its subsequent decisions, cited above, are based upon an incorrect view of the Substituted Freight Service case. And it cites Greer Broker Application, 23 M.C.C. 417 (1940), and Stone's Exp., Inc., Common Carrier Application, 32 M.C.C. 525 (1942), as consistent with its present reading of Substituted Freight Service. We do not rest upon this analysis because, in any event, we agree that the Commission, faced with new developments or in light of reconsideration of the relevant facts and its mandate, may alter its past interpretation and overturn past administrative rulings and practice. Compare SEC v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947); FCC v. WOKO, Inc., 329 U.S. 223, 67 S.Ct. 213, 91 L.Ed. 204 (1946). In fact, although we make no judgment as to the policy aspects of the Commission's action, this kind of flexibility and adaptability to changing needs and patterns of transportation is an essential part of the office of a regulatory agency. Regulatory agencies do not establish rules of conduct to last forever; they are supposed, within the limits of the law and of fair and prudent administration, to adapt their rules and practices to the Nation's needs in a volatile, chng ing economy. They are neither required nor supposed to regulate the present and the future within the inflexible limits of yesterday.
33
It is true that the attention of the Congress had been called to the need for action to secure the relief which the Commission subsequently granted in its rules. In February 1962, the American Trucking Associations, in the course of oral argument in Gordon's Transports, Inc. v. Strickland Transp. Co., 318 I.C.C. 395, sustained sub nom. Strickland Transportation Co. v. United States, 219 F.Supp. 618 (D.C.N.D.Tex.1963), apparently urged that motor carriers be allowed to utilize TOFC open tariffs. On April 5, 1962, President Kennedy sent a transportation message to Congress calling for legislative action to '(a) ssure all carriers the right to ship vehicles or containers on the carriers of other branches of the transportation industry at the same rates available to noncarrier shippers * * *' so that the various carriers would be placed 'in a position of equality with freight forwarders and other shippers in the use of the promising and fast-growing piggyback and related techniques.' H.R. Doc. No. 384, 87th Cong., 2d Sess., p. 5 (1962). Secretary of Commerce Hodges transmitted to Congress proposed legislation to implement the President's message. Hearings on S. 3242 and S. 3243 before the Senate Committee on Commerce, 87th Cong., 2d Sess., pt. 1, p. 13 (1962). See also Hearings on S. 1061 and S. 1062 before Surface Transportation Subcommittee of the Senate Committee on Commerce, 88th Cong., 1st Sess., pt. 1, p. 3 (1963). Bills were introduced in 1962 and 1963. See S. 3242 and H.R. 11584, 87th Cong., 2d Sess. (1962); S. 1062 and H.R. 4701, 88th Cong., 1st Sess. (1963). On June 29, 1962, the Commission instituted the present proceeding. It advised Congress of its action and of its intention to 'resolve' the matter or, if it could not, to recommend appropriate legislation. Surface Transportation Subcommittee Hearings, supra, pt. 2, p. 801; Hearings on H.R. 4700 and H.R. 4701 before the House Committee on Interstate and Foreign Commerce, 88th Cong., 1st Sess., pt. 1, p. 32 (1963). Following this, requests came from the industry to Congress that it withhold legislative action pending the Commission's decision. See, e.g., Hearings on H.R. 4700 and H.R. 4701, supra, pt. 1, p. 213; pt. 2, p. 991. We do not regard this as legislative history demonstrating a congressional construction of the meaning of the statute, nor do we find in it evidence of an administrative interpretation of the Act which should tilt the scales against the correctness of the Commission's conclusions as to its authority to prescribe the present rules. The advocacy of legislation by an administrative agency—and even the assertion of the need for it to accomplish a desired result—is an unsure and unreliable, and not a highly desirable, guide to statutory construction. The possibility of its use to prove more than it means may, but should not, deter administrative agencies from seeking helpful clarification of authority or a fresh and specific congressional mandate.9
34
The final argument to which we must address ourselves is vigorously made by the freight forwarder appellees. Freight forwarding is authorized and regulated in Part IV of the Interstate Commerce Act (49 U.S.C. § 1001 et seq.). This Part was enacted in 1942 (56 Stat. 284). A freight forwarder is defined as 'any person which (otherwise than as a carrier * * * (by rail, motor vehicle or water)) holds itself out to the general public as a common carrier to transport or provide transportation of property, * * * and wic h * * * (A) assembles and consolidates * * * shipments * * * and (B) assumes responsibility for the transportation of such property * * * and (C) utilizes, for the whole or any part of the transportation of such shipments, the services of' a rail motor vehicle or water carrier. § 402(a)(5), 49 U.S.C. § 1002(a)(5). It cannot perform the physical transportation except in its terminal areas. § 410(h), 49 U.S.C. § 1010(h). It assembles shipments, consolidates them, ships them by common carrier (usually a railroad), receives them and separates and distributes them to individual consignees. The Act specifically provides that no permit to engage in freight forwarding shall be issued to any common carrier by rail, motor vehicle or water. § 410(c), 49 U.S.C. § 1010(c). But a freight forwarder may be controlled by such a carrier, or under common control with it, and the Act specifically provides that the Commission may not for this reason deny a permit to the freight forwarder. Ibid.
35
It is obvious that there is a good deal of overlap between the work of the freight forwarders and that of the other common carriers. The freight forwarders' argument here is that the Act authorizes only freight forwarders to engage in the assembly and consolidation of shipments and the subsequent use of rail facilities for transportation, and that permitting the truckers to engage in this sort of service, by means of TOFC on open tariffs, is to authorize them to engage in this service in violation of the Act's prohibition against licensing other carriers as freight forwarders.
36
Forwarders are presently permitted to utilize railroad open-tariff TOFC service. Movement of Highway Trailers by Rail, 293 I.C.C. 93, 111 (1954). They may even quote trailerload rates in competition with truckers and with rails. Eastern Express, Inc. v. United States, 198 F.Supp. 256 (D.C.S.D.Ind.), aff'd 369 U.S. 37, 82 S.Ct. 640, 7 L.Ed.2d 548 (1962). But railroads, within their terminal areas (§ 202(c), 49 U.S.C. § 302(c)), and truckers have also traditionally assembled, consolidated, and distributed cargo in connection with providing their authorized transportation services. The Act expressly exempts from the freight-forwarder provisions any person who performs these services—which are similar to those of freight forwarders—as a carrier subject to another part of the Act. § 402(a)(5), 49 U.S.C. § 1002(a)(5). The House Report on Part IV makes it clear that the Part does not apply 'with respect to transportation performed by * * * motor * * * carriers in accordance with the applicable provisions of the Interstate Commerce Act.' H.R.Rep. No. 1172, 77th Cong., 1st Sess., p. 6 (1941).
37
The mere fact that the truckers, by reason of the Commission's Rules 2 and 3, may utilize open-tariff TOFC service, where offered generally, certainly does not convert their activity into freight forwarding, in conflict with the Act. It is clear that where the railroad agrees, the trucker may use this service, and that a motor vehicle common carrier may assemble, consolidate, transport by piggyback in these circumstances, and distribute after arrival at the railroad terminus. The fact that the Commission enlarges this additional possibility of transportation of the truckers' trailers may be a competitive fact of some significance, but it does not convert the truckers into freight forwarders, nor deprive the latter of the exclusive rights specified in the Act.
III.
38
The controlling fact of the matter is that all piggyback service is, by its essential nature, bimodal.10 It partakes of both the railroad and the trucking functions. The proper allocation of these bimodal functions involves complex considerations. It is not and cannot be precise or mathematical. Railroads are not now confined to the rails. They operate trucks. They are permitted to assemble cargo and, if they so desire, to use their own trucks or subsidiary companies to do so. § 202(c), 49 U.S.C. § 302(c). Truckers are not now strictly confined to the ig hway. In the absence of congressional direction, there is no basis for denying to the ICC the power to allocate and regulate transportation that partakes of both elements; and there is no basis whatever for denying to the Commission the power to carry out its responsibilities under the National Transportation Policy, 54 Stat. 899 (1940), 49 U.S.C. preceding § 1, to 'provide for fair and impartial regulation of all modes of transportation subject to the provisions of this Act, so administered as to recognize and preserve the inherent advantages of each * * * to 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.'11 This Court has obsrved that 'The National Transportation Policy, formulated by Congress, specifies in its terms that it is to govern the Commission in the administration and enforcement of all provisions of the Act,' and the Court has styled the National Transportation Policy as 'the yardstick by which the correctness of the Commission's actions will be measured.' Schaffer Transp. Co. v. United States, 355 U.S. 83, 87 88, 78 S.Ct. 173, 176, 2 L.Ed.2d 117 (1957). Here the Commission has found that 'the inherent advantages of each mode of transportation can be given freest play through the highest degree of coordination, and * * * encouragement of such coordination is in the public interest.' 322 I.C.C., at 330. This conclusion, and its implementation in the TOFC rules, has obvious importance to 'adequate, economical, and efficient service' and to the 'establishment and maintenance of reasonable charges for transportation services,' which are mandates of the National Transportation Policy. We cannot sustain the District Court's ruling that the Commission lacked power to promulgate the rules here in issue.
39
Accordingly, the decision below is reversed.
40
Reversed.
41
Mr. Justice BLACK and Mr. Justice STEWART would affirm the judgment of the District Court for the reasons stated in the opinion of District Court Judge Hoffman reported at 244 F.Supp. 955, 961—964.
42
Mr. Justice HARLAN, finding it impossible to escape the impact of the proviso to § 3(1) of the Interstate Commerce Act, 49 U.S.C. § 3(1), would, for reasons elaborated in the portion of Judge Hoffman's opinion dealing with that point, 244 F.Supp. 955, at 961—964, affirm the judgment of the District Court.
1
322 I.C.C., at 305. The Commission observed, 'There can be little doubt that piggybacking has been a decisive factor in returning to the railroads a substantial volume of traffic that previously had been moving by other modes of transportation, private and for-hire.' Id., at 307. It found that 'In 1957 a total of 57 class I railroads were participating in TOFC tariffs; in mid-1963 there were 100 class I roads doing so. In 1955, 32 railroads reported a total of 168,150 TOFC carloadings, for a weekly average of 3,234. In 1959, 50 reportng railroads showed totals of 415,156 annual and 7,984 weekly average carloadings for TOFC. For 1963, 63 reporting railroads indicated continued growth to approximately 797,500 loaded TOFC cars, a weekly rate of approximately 12,700(15,300) loadings.' Id., at 309.
2
For a statement of the Commission's earlier position, prior to enactment of Part II of the Interstate Commerce Act, see Trucks on Flat Cars Between Chicago and Twin Cities, 216 I.C.C. 435 (1936), where it was held that motor carriers, like any other competing mode of unregulated transportation (compare ICC v. Delaware, L. & W.R. Co., 220 U.S. 235, 31 S.Ct. 392, 55 L.Ed. 448 (1911)), were entitled to utilize a published piggyback tariff.
3
Section 1(4) of the Act, 49 U.S.C. § 1(4), imposes a duty on railroads to establish joint through routes and rates with water carriers, but there is no such provision with respect to motor carriers. See § 216(c), 49 U.S.C. § 316(c).
4
Cf. Gordon's Transports, Inc. v. Strickland Transp. Co., 318 I.C.C. 395, 396—397, sustained sub nom. Strickland Transportation Co. v. United States, 219 F.Supp. 618, 620 (D.C.N.D.Tex.1963).
5
There is 'no Plan I service of any type available between midwest points east of the tier of states of Wyoming, Colorado, and New Mexico, on the one hand, and, on the other hand, points in the states west thereof. Transcontinental railroads operating between the latter points have elected not to offer any form of Plan I service to motor carriers between such points.' Pacific Intermountain Express Co., Supplemental Statement of W. S. Pilling (R. 123).
6
See, e.g., Great Western R. Co. v. Sutton, L.R. 4 H.L. 226 (1869); London & N.W.R. Co. v. Evershed, 3 App.Cas. 1029 (1878); Wight v. United States, 167 U.S. 512, 17 S.Ct. 822 (1897); ICC v. Baltimore & O.R. Co., 225 U.S. 326, 32 S.Ct. 742 (1912); Louisville & N.R. Co. v. United States, 282 U.S. 740, 51 S.Ct. 297 (1931); Kansas City S.R. Co. v. United States, 282 U.S. 760, 51 S.Ct. 304, 75 L.Ed. 684 (1931); ICC v. Delaware, L. & W.R. Co., 220 U.S. 235, 31 S.Ct. 392 (1911); United States v. Chicago Heights Trucking Co., 310 U.S.34 4, 60 S.Ct. 931, 84 L.Ed. 1243 (1940).
7
A suit attacking the validity of Plan I service is pending. Lone Star Package CarCo . v. United States, Civ. No. 4 355 (D.C.N.D.Tex.).
8
In important respects, motor carrier use of open-tariff TOFC differs from a motor-rail through route-joint rate TOFC arrangement. Hence the District Court's exception for open-tariff TOFC where the railroad consents cannot be justified as based upon the voluntary through route and joint rate provision of the Act. § 216(c), 49 U.S.C. § 316(c).
9
It should also be noted that the legislation proposed by the ICC itself (S. 3510 and H.R. 12362, 87th Cong., 2d Sess. (1962); S. 676 and H.R. 2088, 88th Cong., 1st Sess. (1963)) would have required railroads to establish motor-rail through routes and joint rates and granted the Commission power to compel such arrangements—which is quite different from entitling motor carriers to use railroad open tariffs.
10
As the ICC observed: 'What (those who object to open-tariff TOFC) overlook is that all TOFC service is inherently bimodal in that its basic characteristic is the combination of the inherent advantages of rail and motor transportation * * *.' 322 I.C.C., at 329. Thus, the District Court's view of the statutory compartmentalization of transportation as either rail or motor or water, fails to recognize the primary fact about TOFC, which in any of its varieties cannot be made to fit the District Court's rigid modal conceptualization.
11
Cf. United States v. Rock Island Co., 340 U.S. 419, 433, 71 S.Ct. 382, 390, 95 L.Ed. 391 (1951): 'Complete rail domination (over motor transportation) was not envisaged as a way to preserve the inherent advantages of each form of transportation.'
| 89
|
387 U.S. 369
87 S.Ct. 1627
18 L.Ed.2d 830
Neil REITMAN et al., Petitioners,v.Lincoln W. MULKEY et al.
No. 483.
Argued March 20 and 21, 1967.
Decided May 29, 1967.
Samuel O. Pruitt, Jr., Los Angeles, Cal., for petitioners.
Herman F. Selvin and A. L. Wirin, Los Angeles, Cal., for respondents.
Sol. Gen. Thurgood Marshall for the United States, as amicus curiae, by special leave of Court.
Mr. Justice WHITE delivered the opinion of the Court.
1
The question here is whether Art. I, § 26, of the California Constitution denies 'to any person * * * the equal protection of the laws' within the meaning of the Fourteenth Amendment of the Constitution of the United States.1 Section 26 of Art. I, an initiated measure submitted to the people as Proposition 14 in a statewide ballot in 1964, provides in part as follows:
2
'Neither the State nor any subdivision or agency thereof shall deny, limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease or rent any part or all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses.'
3
The real property covered by § 26 is limited to residential property and contains an exception for state-owned real estate.2
4
The issue arose in two separate actions in the California courts, Mulkey v. Reitman and Prendergast v. Snyder. In Reitman, the Mulkeys who are husband and wife and respondents here, sued under § 51 and § 52 of the California Civil Code3 alleging that petitioners had refused to rent them an apartment solely on account of their race. An injunction and damages were demanded. Petitioners moved for summary judgment on the ground that §§ 51 and 52, insofar as they were the basis for the Mulkeys' action, had been rendered null and void by the adoption of Proposition 14 after the filing of the complaint. The trial court granted the motion and respondents took the case to the California Supreme Court.
5
In the Prendergast case, respondents, husband and wife, filed suit in December 1964 seeking to enjoin eviction from their apartment; respondents alleged that the eviction was motivated by racial prejudice and therefore would violate § 51 and § 52 of the Civil Code. Petitioner Snyder cross-complainedfo r a judicial declaration that he was entitled to terminate the month-to-month tenancy even if his action was based on racial considerations. In denying petitioner's motion for summary judgment, the trial court found it unnecessary to consider the validity of Proposition 14 because it concluded that judicial enforcement of an eviction based on racial grounds would in any event violate the Equal Protection Clause of the United States Constitution.4 The cross-complaint was dismissed with prejudice5 and petitioner Snyder appealed to the California Supreme Court which considered the case along with Mulkey v. Reitman. That court, in reversing the Reitman case, held that Art. I, § 26, was invalid as denying the equal protection of the laws guaranteed by the Fourteenth Amendment. 64 Cal.2d 529, 50 Cal.Rptr. 881, 413 P.2d 825. For similar reasons, the court affirmed the judgment in the Prendergast case. 64 Cal.2d 877, 50 Cal.Rptr. 903, 413 P.2d 847. We granted certiorari because the cases involve an important issue arising under the Fourteenth Amendment. 385 U.S. 967, 87 S.Ct. 500, 17 L.Ed.2d 431.
6
We affirm the judgments of the California Supreme Court. We first turn to the opinion of that court in Reitman, which quite properly undertook to examine the constitutionality of § 26 in terms of its 'immediate objective,' its 'ultimate effect' and its 'historical context and the conditions existing prior to its enactment.' Judgments such as these we have frequently undertaken ourselves. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; McCabe v. Atchison, Topeka & Santa Fe R. Co., 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169; Lombard v. State of Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338; Robinson v. State of Florida, 378 U.S. 153, 84 S.Ct. 1693, 12 L.Ed.2d 771; Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762; Anderson v. Martin, 375 U.S. 399, 84 S.Ct. 454, 11 L.Ed.2d 430. But here the California Supreme Court has addressed itself to these matters and we should give careful consideration to its views because they concern the purpose, scope, and operative effect of a provision of the California Constitution.
7
First, the court considered whether § 26 was concerned at all with private discriminations in residential housing. This involved a review of past efforts by the California Legislature to regulate such discriminations. The Unruh Act, Civ.Code §§ 51—52, on which respondents based their cases, was passed in 1959.6 The Hawkins Act, formerly Health & Safety Code §§ 35700—35741, followed and prohibited discriminations in publicly assisted housing. In 1961, the legislature enacted proscriptions against restrictive covenants. Finally, in 1963, came the Rumford Fair Housing Act, Health & Safety Code §§ 35700—35744, superseding the Hawkins Act and prohibiting racial discriminations in the sale or rental of any private dwelling containing more than four units. That act was enforceable by the State Fair Employment Practice Commission.
8
It was against this background that Proposition 14 was enacted. Its immediate design and intent, the California court said, were 'to overturn state laws that bore on the right of private sellers and lessors to discriminate,' the Unruh and Rumford Acts, and 'to forestall future state action that might circumscribe this right.' This aim was successfully achieved: the adoption of Proposition 14 'generally nullifies both the Rumford and Unruh Acts as they apply to the housing mrk et,' and establishes 'a purported constitutional right to privately discriminate on grounds which admittedly would be unavailable under the Fourteenth Amendment should state action be involved.'
9
Second, the court conceded that the State was permitted a neutral position with respect to private racial discriminations and that the State was not bound by the Federal Constitution to forbid them. But, because a significant state involvement in private discriminations could amount to unconstitutional state action, Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45, the court deemed it necessary to determine whether Proposition 14 invalidly involved the State in racial discriminations in the housing market. Its conclusion was that it did.
10
To reach this result, the state court examined certain prior decisions in this Court in which discriminatory state action was identified. Based on these cases, Robinson v. State of Florida, 378 U.S. 153, 156, 84 S.Ct. 1693, 1695, 12 L.Ed.2d 771; Anderson v. Martin, 375 U.S. 399, 84 S.Ct. 454, 11 L.Ed.2d 430; Barrows v. Jackson, 346 U.S. 249, 254, 73 S.Ct. 1031, 1033, 97 L.Ed. 1586; McCabe v. Atchison, Topeka & Santa Fe R. Co., 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169, it concluded that a prohibited state involvement could be found 'even where the state can be charged with only encouraging,' rather than commanding discrimination. Also of particular interest to the court was Mr. Justice Stewart's concurrence in Burton v. Wilmington Parking Authority, 365 U.S. 715, 726, 81 S.Ct. 856, 862, 6 L.Ed.2d 45, where it was said that the Delaware courts had construed an existing Delaware statute as 'authorizing' racial discrimination in restaurants and that the statute was therefore invalid. To the California court '(t)he instant case presents an undeniably analogous situation' wherein the State had taken affirmative action designed to make private discriminations legally possible. Section 26 was said to have changed the situation from one in which discrimination was restricted 'to one wherein it is encouraged, within the meaning of the cited decisions'; § 26 was legislative action 'which authorized private discrimination' and made the State 'at least a partner in the instant act of discrimination * * *.' The court could 'conceive of no other purpose for an application of section 26 aside from authorizing the perpetration of a purported private discrimination * * *.' The judgment of the California court was that § 26 unconstitutionally involves the State in racial discriminations and is therefore invalid under the Fourteenth Amendment.
11
There is so sound reason for rejecting this judgment. Petitioners contend that the California court has misconstrued the Fourteenth Amendment since the repeal of any statute prohibiting racial discrimination, which is constitutionally permissible, may be said to 'authorize' and 'encourage' discrimination because it makes legally permissible that which was formerly proscribed. But, as we understand the California court, it did not posit a constitutional violation on the mere repeal of the Unruh and Rumford Acts. It did not read either our cases or the Fourteenth Amendment as establishing an automatic constitutional barrier to the repeal of an existing law prohibiting racial discriminations in housing; nor did the court rule that a State may never put in statutory form an existing policy of neutrality with respect to private discriminations. What the court below did was first to reject the notion that the State was required to have a statute prohibiting racial discriminations in housing. Second, it held the intent of § 26 was to authorize private racial discriminations in the housing market, to repeal the Unruh and Rumford Acts and to create a constitutional right to discriminate on racial grounds in the sale and leasing of real property. Hence, the court dealt with § 26 as though it expressly authorized and constitutionalized the private right to discriminate. Third t he court assessed the ultimate impact of § 26 in the California environment and concluded that the section would encourage and significantly involve the State in private racial discrimination contrary to the Fourteenth Amendment.
12
The California court could very reasonably conclude that § 26 would and did have wider impact than a mere repeal of existing statutes. Section 26 mentioned neither the Unruh nor Rumford Act in so many words. Instead, it announced the constitutional right of any person to decline to sell or lease his real property to anyone to whom he did not desire to sell or lease. Unruh and Rumford were thereby pro tanto repealed. But the section struck more deeply and more widely. Private discriminations in housing were now not only free from Rumford and Unruh but they also enjoyed a far different status than was true before the passage of those statutes. The right to discriminate, including the right to discriminate on racial grounds, was now embodied in the State's basic charter, immune from legislative, executive, or judicial regulation at any level of the state government. Those practicing racial discriminations need no longer rely solely on their personal choice. They could now invoke express constitutional authority, free from censure or interference of any kind from official sources. All individuals, partnerships, corporations and other legal entities, as well as their agents and representatives, could now discriminate with respect to their residential real property, which is defined as any interest in real property of any kind or quality, 'irrespective of how obtained or financed,' and seemingly irrespective of the relationship of the State to such interests in real property. Only the State is excluded with respect to property owned by it.7
13
This Court has never attempted the 'impossible task' of formulating an infallible test for determining whether the State 'in any of its manifestations' has become significantly involved in private discriminations. 'Only by sifting facts and weighing circumstances' on a case-by-case basis can a 'nonobvious involvement of the State in private conduct be attributed its true significance.' Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860. Here the California court, armed as it was with the knowledge of the facts and circumstances concerning the passage and potential impact of § 26, and familiar with the milieu in which that provision would operate, has determined that the provision would involve the State in private racial discriminations to an unconstitutional degree. We accept this holding of the California court.
14
The assessment of § 26 by the California court is similar to what this Court has done in appraising state statutes or other official actions in other contexts. In McCabe v. Atchison, Topeka & Santa Fe R. Co., 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169, the Court dealt with a statute which, as construed by the Court, authorized carriers to provide cars for white persons but not for Negroes. Though dismissal of the complaint on a procedural ground was affirmed, the Court made it clear that such a statute was invalid under the Fourteenth Amendment because a carrier refusing equal service to Negroes would be 'acting in the matter under the authority of a state law.' This was nothing less than considering a permissive state statute as an authorization to discriminate and as sufficient state action to violate the Fourteenth Amendment in the context of that case. Similarly, in Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984,8 the Court was faced with a statute empowering the executive committee of a political party to prescribe the qualifications of its members for voting or for other participation, but containing no directions with respect to the exercise of that power. This was authority which the committee otherwise might not have had and which was used by the committee to bar Negroes from voting in primary elections. Reposing this power in the executive committee was said to insinuate the State into the self-regulatory, decision-making scheme of the voluntary association; the exercise of the power was viewed as an expression of state authority contrary to the Fourteenth Amendment.
15
In Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, the operator-lessee of a restaurant located in a building owned by the State and otherwise operated for public purposes, refused service to Negroes. Although the State neither commanded nor expressly authorized or encouraged the discriminations, the State had 'elected to place its power, property and prestige behind the admitted discrimination' and by 'its inaction * * * has * * * made itself a party to the refusal of service * * *' which therefore could not be considered the purely private choice of the restaurant operator.
16
In Peterson v. City of Greenville, 373 U.S. 244, 83 S.Ct. 1119, 10 L.Ed.2d 323, and in Robinson v. State of Florida, 378 U.S. 153, 84 S.Ct. 1693, the Court dealt with state statutes or regulations requiring, at least in some respects, segregation in facilities and services in restaurants. These official provisions, although obviously unconstitutional and unenforceable, were deemed in themselves sufficient to disentitle the State to punish, as trespassers, Negroes who had been refused service in the restaurants. In neither case was any proof required that the restaurant owner had actually ben influenced by the state statute or regulation. Finally, in Lombard v. State of Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338, the Court interpreted public statements by New Orleans city officials as announcing that the city would not permit Negroes to seek desegregated service in restaurants. Because the statements were deemed to have as much coercive potential as the ordinance in the Peterson case, the Court treated the city as though it had actually adopted an ordinance forbidding desegregated service in public restaurants.
17
None of these cases squarely controls the case we now have before us. But they do illustrate the range of situations in which discriminatory state action has been identified. They do exemplify the necessity for a court to assess the potential impact of official action in determining whether the State has significantly involved itself with invidious discriminations. Here we are dealing with a provision which does not just repeal an existing law forbidding private racial discriminations. Section 26 was intended to authorize, and does authorize, racial discrimination in the housing market. The right to discriminate is now one of the basic policies of the State. The California Supreme Court believes that the section will significantly encourage and involve the State in private discriminations. We have been presented with no persuasive considerations indicating that these judgments should be overturned.
18
Affirmed.
19
Mr. Justice DOUGLAS, concurring.
20
While I join the opinion of the Court, I add a word to indicate the dimensions of our problem.
21
This is not a case as simple as the one where a man with a bicycle or a car or a stock certificate or even a log cabin asserts the right to sell it to whomsoever he pleases, excluding all others whether they be Negro, Chinese, Japanese, Russians, Catholics, Baptists, or those with blue eyes. We deal here with a problem in the realm of zoning, similar to the one we had in Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, where we struck down restrictive covenants.
22
Those covenants are one device whereby a neighborhood is kept 'while' or 'Caucasian' as the dominant interests desire. Proposition 14 in the setting of our modern housing problem is only another device of the same character.
23
Real estate brokers and mortgage lenders are largely dedicated to the maintenance of segregated communities.1 Realtors commonly believe it is unethical to sell or rent to a Negro in a predominantly white or all-white neighborhood,2 and mortgage lenders throw their weight alongside segregated communities, rejecting applications by members of a minority group who try to break the white phalanx save and unless the neighborhood is in process of conversion into a mixed or a Negro community.3 We are told by the Commission on Civil Rights:
24
'Property owners' prejudices are reflected, magnified, and sometimes even induced by real estate brokers, through whom most housing changes hands. Organized brokers have, with few exceptions, followed the principle that only a 'homogeneous' neighborhood assures economic soundness. Their views in some cases are so vigorously expressed as to discourage property owners who would otherwise be concerned only with the color of a purchaser's money, and not with that of his skin.4 * * *
25
'The financial community, upon which mortgage financing—and hence the bulk of home purchasing and home building—depends, also acts to a large extent on the premise that only a homge neous neighborhood can offer an economically sound investment. For this reason, plus the fear of offending their other clients, many mortgage-lending institutions refuse to provide home financing for houses in a 'mixed' neighborhood. The persistent stereotypes of certain minority groups as poor credit risks also block the flow of credit, although these stereotypes have often been proved unjustified.' Housing, U.S. Commission on Civil Rights 2—3 (1961).
The builders join in the same scheme:5
26
'* * * private builders often adopt what they believe are the views of those to whom they expect to sell and of the banks upon whose credit their own operations depend. In short, as the Commission on Race and Housing has concluded, 'it is the real estate brokers, builders, and mortgage finance institutions, which translate prejudice into discriminatory action.' Thus, at every level of the private housing market members of minority groups meet mutually reinforcing and often unbreakable barriers of rejection.'
27
Proposition 14 is a form of sophisticated discrimination6 whereby the people of California harness the energies of private groups to do indirectly what they cannot under our decisions7 allow their government to do.
28
George A. McCanse, chairman of the legislative committee of the Texas Real Estate Association, while giving his views on Title IV of the proposed Civil Rights Act of 1966 (H.R. 14765), which would prohibit discrimination in housing by property owners, real estate brokers, and others engaged in the sale, rental or financing of housing, stated that he warned groups to which he spoke of 'the grave dangers inherent in any type of legislation that would erode away the rights that go with the ownership of property.'8 He pointed out that
29
'(E)ach time we citizens of this country lose any of the rights that go with the ownership of property, we are moving that much closer to a centralized government in which ultimately the right to own property would be denied.'9
30
That apparently is a common view. It overlooks several things. First, the right to own or lease property is already denied to many solely because of the pigment of their skin; they are, indeed, under the control of a few who determine where and how the colored people shall live and what the nature of our cities will be. Second, the agencies that are zoning the cities along racial lines are state licensees.
31
Zoning is a state and municipal function. See Euclid, Ohio, v. Ambler Realty Co., 272 U.S. 365, 389, 47 S.Ct. 114, 118, 71 L.Ed. 303 et seq.; Berman v. Parker, 348 U.S. 26, 34—35, 75 S.Ct. 98, 103, 99 L.Ed. 27. When the State leaves that function to private agencies or institutions which are licensees and which practice racial discrimination and zone our cities into white and black belts or white and black ghettoes, it suffers a governmental function to be performed under private auspices in a way the State itself may not act. The present case is therefore kin to Terry v. Adams, 345 U.S. 461, 466, 73 S.Ct. 809, 810, 97 L.Ed. 1152, where a State allowed a private group (known as the Jaybird Association, which was the dominant political group in county elections) to perform an electoral function in derogation of the rights of Negroes under the Fifteenth Amendment.
32
Leaving the zoning function to groups which practice racial discrimination and are licensed by the States constitutes state action in the narrowest sense in which Shelley v. Kraemer, supra, can be construed. For as noted by Mr. Justice Black in Bell v. State of Maryland, 378 U.S. 226, 329 8 4 S.Ct. 1814, 1870, 12 L.Ed.2d 822 (dissenting), restrictive covenants 'constituted a restraint on alienation of property, sometimes in perpetuity, which, if valid, was in reality the equivalent of and had the effect of state and municipal zoning laws, accomplishing the same kind of racial discrimination as if the State had passed a statute instead of leaving this objective to be accomplished by a system of private contracts, enforced by the State.'
33
Under California law no person may 'engage in the business, act in the capacity of, advertise or assume to act as a real estate broker or a real estate salesman within this State without first obtaining a real estate license.' Calif.Bus. & Prof.Code § 10130. These licensees are designated to serve the public. Their licenses are not restricted, and could not be restricted, to effectuate a policy of segregation. That would be state action that is barred by the Fourteenth Amendment. There is no difference, as I see it, between a State authorizing a licensee to practice racial discrimination and a State, without any express authorization of that kind nevertheless launching and countenancing the operation of a licensing system in an environment where the whole weight of the system is on the side of discrimination. In the latter situation the State is impliedly sanctioning what it may not do specifically.
34
If we were in a domain exclusively private, we would have different problems. But urban housing is in the public domain as evidenced not only by the zoning problems presented but by the vast schemes of public financing with which the States and the Nation have been extensively involved in recent years. Urban housing is clearly marked with the public interest. Urban housing, like restaurants, inns, and carriers (Bell v. Maryland, 378 U.S. 226, 253—255, 84 S.Ct. 1814, 1829—1830, separate opinion), or like telephone companies, drugstores, or hospitals, is affected with a public interest in the historic and classical sense. See Lombard v. State of Louisiana, 373 U.S. 267, 275—278, 83 S.Ct. 1122, 1126 1127 (concurring opinion).
35
I repeat what was stated by Holt, C.J., in Lane v. Cotton, 12 Mod. 472, 484 (1701):
36
'(W)herever any subject takes upon himself a public trust for the benefit of the rest of his fellow-subjects, he is eo ipso bound to serve the subject in all the things that are within the reach and comprehension of such an office, under pain of an action against him * * *. If on the road a shoe fall off my horse, and I come to a smith to have one put on, and the smith refuse to do it, an action will lie against him, because he has made profession of a trade which is for the public good, and has thereby exposed and vested an interest of himself in all the King's subjects that will employ him in the way of his trade. If an innkeeper refuse to entertain a guest where his house is not full, an action will lie against him, and so against a carrier, if his horses be not loaded, and he refuse to take a packet proper to be sent by a carrier.'
37
Since the real estate brokerage business is one that can be and is state-regulated and since it is state-licensed, it must be dedicated, like the telephone companies and the carriers and the hotels and motels to the requirements of service to all without discrimination—a standard that in its modern setting is conditioned by the demands of the Equal Protection Clause of the Fourteenth Amendment.
38
And to those who say that Proposition 14 represents the will of the people of California, one can only reply:
39
'Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents. This is a truth of great importance, but not yet sufficiently attendd to * * *.' 5 Writings of James Madison 272 (Hunt ed. 1904).
40
Mr. Justice HARLAN, whom Mr. Justice BLACK, Mr. Justice CLARK, and Mr. Justice STEWART join, dissenting.
41
I consider that this decision, which cuts deeply into state political processes, is supported neither by anything 'found' by the Supreme Court of California nor by any of our past cases decided under the Fourteenth Amendment. In my view today's holding, salutary as its result may appear at first blush, may in the long run actually serve to handicap progress in the extremely difficult field of racial concerns. I must respectfully dissent.
42
The facts of this case are simple and undisputed. The legislature of the State of California has in the last decade enacted a number of statutes restricting the right of private landowners to discriminate on the basis of such factors as race in the sale or rental of property. These laws aroused considerable opposition, causing certain groups to organize themselves and to take advantage of procedures embodied in the California Constitution permitting a 'proposition' to be presented to the voters for a constitutional amendment. 'Proposition 14' was thus put before the electorate in the 1964 election and was adopted by a vote of 4,526,460 to 2,395,747. The Amendment, Art. I, § 26, of the State Constitution, reads in relevant part as follows:
43
'Neither the State nor any subdivision or agency thereof shall deny, limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease or rent any part or all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses.'1
44
I am wholly at a loss to understand how this straight-forward effectuation of a change in the California Constitution can be deemed a violation of the Fourteenth Amendment, thus rendering § 26 void and petitioners' refusal to rent their properties to respondents, because of their race, illegal under prior state law. The Equal Protection Clause of the Fourteenth Amendment, which forbids a State to use its authority to foster discrimination based on such factors as race, Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478; Browken v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; Goss v. Board of Education, 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632, does not undertake to control purely personal prejudices and predilections, and individuals acting on their own are left free to discriminate on racial grounds if they are so minded, Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835. By the same token, the Fourteenth Amendment does not require of States the passage of laws preventing such private discrimination, although it does not of course disable them from enacting such legislation if they wish.
45
In the case at hand California, acting through the initiative and referendum, has decided to remain 'neutral' in the realm of private discrimination affecting the sale or rental of private residential property; in such transactions private owners are now free to act in a discriminatory manner previously forbidden to them. In short, all that has happened is that California has effected a pro tanto repeal of its prior statutes forbidding private discrimination. This runs no more afoul of the Fourteenth Amendment than would have California's failure to pass any such antidiscrimination statutes in the first instance. The fact that such repeal was also accompanied by a constitutional prohibition against future enactment of such laws by he California Legislature cannot well be thought to affect, from a federal constitutional standpoint, the validity of what California has done. The Fourteenth Amendment does not reach such state constitutional action any more than it does a simple legislative repeal of legislation forbidding private discrimination.
46
I do not think the Court's opinion really denies any of these fundamental constitutional propositions. Rather it attempts to escape them by resorting to arguments which appear to me to be entirely ill-founded.
I.
47
The Court attempts to fit § 26 within the coverage of the Equal Protection Clause by characterizing it as in effect an affirmative call to residents of California to discriminate. The main difficulty with this viewpoint is that it depends upon a characterization of § 26 that cannot fairly be made. The provision is neutral on its face, and it is only by in effect asserting that this requirement of passive official neutrality is camouflage that the Court is able to reach its conclusion. In depicting the provision as tantamount to active state encouragement of discrimination the Court essentially relies on the fact that the California Supreme Court so concluded. It is said that the findings of the highest court of California as to the meaning and impact of the enactment are entitled to great weight. I agree, of course, that findings of fact by a state court should be given great weight, but this familiar proposition hardly aids the Court's holding in this case.
48
There is no disagreement whatever but that § 26 was meant to nullify California's fair-housing legislation and thus to remove from private residential property transactions the state-created impediment upon freedom of choice. There were no disputed issues of fact at all, and indeed the California Supreme Court noted at the outset of its opinion that '(i)n the trial court proceedings allegations of the complaint were not factually challenged, no evidence was introduced, and the only matter placed in issue was the legal sufficiency of the allegations.' 64 Cal.2d 529, 531—532, 50 Cal.Rptr. 881, 883, 413 P.2d 825, 827. There was no finding, for example, that the defendants' actions were anything but the product of their own private choice. Indeed, since the alleged racial discrimination that forms the basis for the Reitman refusal to rent on racial grounds occurred in 1963, it is not possible to contend that § 26 in any way influenced this particular act. There were no findings as to the general effect of § 26. The Court declares that the California court 'held the intent of § 26 was to authorize private racial discriminations in the housing market * * *,' ante, p. 376, but there is no supporting fact in the record for this characterization. Moreover, the grounds which prompt legislators or state voters to repeal a law do not determine its constitutional validity. That question is decided by what the law does, not by what those who voted for it wanted it to do, and it must not be forgotten that the Fourteenth Amendment does not compel a State to put or keep any particular law about race on its books. The Amendment only forbids a State to pass or keep in effect laws discriminating on account of race. California has not done this.
49
A state enactment, particularly one that is simply permissive of private decision-making rather than coercive and one that has been adopted in this most democratic of processes, should not be struck down by the judiciary under the Equal Protection Clause without persuasive evidence of an invidious purpose or effect. The only 'factual' matter relied on by the majority of the California Supreme Court was the context in which Proposition 14 was adopted, namely, that several strong antidiscrimination acts had been passed by the legislature and opposed by many of those who successfully led the movement for adoption of Proposition 14 by popular referendum. These circumstances, and these alone, the California court held, made § 26 unlawful under tis Court's cases interpreting the Equal Protection Clause. This, of course, is nothing but a legal conclusion as to federal constitutional law, the California Supreme Court not having relied in any way upon the State Constitution. Accepting all the suppositions under which the state court acted, I cannot see that its conclusion is entitled to any special weight in the discharge of our own responsibilities. Put in another way, I cannot transform the California court's conclusion of law into a finding of fact that the State through the adoption of § 26 is actively promoting racial discrimination. It seems to me manifest that the state court decision rested entirely on what that court conceived to be the compulsion of the Fourteenth Amendment, not on any fact-finding by the state courts.
II.
50
There is no question that the adoption of § 26, repealing the former state anti-discrimination laws and prohibiting the enactment of such state laws in the future, constituted 'state action' within the meaning of the Fourteenth Amendment. The only issue is whether this provision impermissibly deprives any person of equal protection of the laws. As a starting point, it is clear that any statute requiring unjustified discriminatory treatment is unconstitutional. E.g., Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446; Brown v. Board of Education, supra; Peterson v. City of Greenville, 373 U.S. 244, 83 S.Ct. 1119, 10 L.Ed.2d 323. And it is no less clear that the Equal Protection Clause bars as well discriminatory governmental administration of a statute fair on its face. E.g., Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220. This case fits within neither of these two categories: Section 26 is by its terms inoffensive, and its provisions require no affirmative governmental enforcement of any sort. A third category of equal-protection cases, concededly more difficult to characterize, stands for the proposition that when governmental involvement in private discrimination reaches a level at which the State can be held responsible for the specific act of private discrimination, the strictures of the Fourteenth Amendment come into play. In dealing with this class of cases, the inquiry has been framed as whether the State has become 'a joint participant in the challenged activity, which, on that account, cannot be considered to have been so 'purely private' as to fall without the scope of the Fourteenth Amendment.' Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S.Ct. 856, 862, 6 L.Ed.2d 45.
51
Given these latter contours of the equal-protection doctrine, the assessment of particular cases is often troublesome, as the Court itself acknowledges. Ante, pp. 378—379. However, the present case does not seem to me even to approach those peripheral situations in which the question of state involvement gives rise to difficulties. See, e.g., Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373; Lombard v. State of Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338. The core of the Court's opinion is that § 26 is offensive to the Fourteenth Amendment because it effectively encourages private discrimination. By focusing on 'encouragement' the Court, I fear, is forging a slippery and unfortunate criterion by which to measure the constitutionality of a statute simply permissive in purpose and effect, and inoffensive on its face.
52
It is true that standards in this area have not been definitely formulated, and that acts of discrimination have been included within the compass of the Equal Protection Clause not merely when they were compelled by a state statute or other governmental pressures, but also when they were said to be 'induced' or 'authorized' by the State. Most of these cases, however, can be approached in terms of the impact and extent of affirmative state governmental activities, e.g., the action of a sheriff, Lombard v. Louisiana, supra; the official supervision over a park, Evans v. Newton, supra; a joint venture with a lessee in a munci pally owned building, Burton v. Wilmington Parking Authority, supra.2 In situations such as these the focus has been on positive state cooperation or partnership in affirmatively promoted activities, an involvement that could have been avoided. Here, in contrast, we have only the straight-forward adoption of a neutral provision restoring to the sphere of free choice, left untouched by the Fourteenth Amendment, private behavior within a limited area of the racial problem. The denial of equal protection emerges only from the conclusion reached by the Court that the implementation of a new policy of governmental neutrality, embodied in a constitutional provision and replacing a former policy of antidiscrimination, has the effect of lending encouragement to those who wish to discriminate. In the context of the actual facts of the case, this conclusion appears to me to state only a truism: people who want to discriminate but were previously forbidden to do so by state law are now left free because the State has chosen to have no law on the subject at all. Obviously whenever there is a change in the law it will have resulted from the concerted activity of those who desire the change, and its enactment will allow those supporting the legislation to pursue their private goals.
53
A moment of thought will reveal the far-reaching possibilities of the Court's new doctrine, which I am sure the Court does not intend. Every act of private discrimination is either forbidden by state law or permitted by it. There can be little doubt that such permissiveness—whether by express constitutional or statutory provision, or implicit in the common law—to some extent 'encourages' those who wish to discriminate to do so. Under this theory 'state action' in the form of laws that do nothing more than passively permit private discrimination could be said to tinge all private discrimination with the taint of unconstitutional state encouragement.
54
This type of alleged state involvement, simply evincing a refusal to involve itself at all, is of course very different from that illustrated in such cases as Lombard, Peterson, Evans and Burton, supra, where the Court found active involvement of state agencies and officials in specific acts of discrimination. It is also quite different from cases in which a state enactment could be said to have the obvious purpose of fostering discrimination. Anderson v. Martin, 375 U.S. 399, 84 S.Ct. 454, 11 L.Ed.2d 430. I believe the state action required to bring the Fourteenth Amendment into operation must be affirmative and purposeful, actively fostering discrimination. Only in such a case is ostensibly 'private' action more properly labeled 'official.' I do not believe that the mere enactment of § 26, on the showing made here, falls within this class of cases.
III.
55
I think that this decision is not only constitutionally unsound, but in its practical potentialities short-sighted. Opponents of stat antidiscrimination statute a re now in a position to argue that such legislation should be defeated because, if enacted, it may be unrepealable. More fundamentally, the doctrine underlying this decision may hamper, if not preclude, attempts to deal with the delicate and troublesome problems of race relations through the legislative process. The lines that have been and must be drawn in this area, fraught as it is with human sensibilities and frailties of whatever race or creed, are difficult ones. The drawing of them requires understanding, patience, and compromise, and is best done by legislatures rather than by courts. When legislation in this field is unsuccessful there should be wide opportunities for legislative amendment, as well as for change through such processes as the popular initiative and referendum. This decision, I fear, may inhibit such flexibility. Here the electorate itself overwhelmingly wished to overrule and check its own legislature on a matter left open by the Federal Constitution. By refusing to accept the decision of the people of California, and by contriving a new and ill-defined constitutional concept to allow federal judicial interference, I think the Court has taken to itself powers and responsibilities left elsewhere by the Constitution.
56
I believe the Supreme Court of California misapplied the Fourteenth Amendment, and would reverse its judgments, and remand the case for further appropriate proceedings.
1
Section 1 of the Fourteenth Amendment provides as follows:
'All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'
2
The following is the full text of § 26: 'Neither the State nor any subdivision or agency thereof shall deny, limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease or rent any part or all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses.
"Person' includes individuals, partnerships, corporations and other legal entities and their agents or representatives but does not include the State or any subdivision thereof with respect to the sale, lease or rental of property owned by it.
"Real property' consists of any interest in real property of any kind or quality, present or future, irrespective of how obtained or financed, which is used, designed, constructed, zoned or otherwise devoted to or limited for residential purposes whether as a single family dwelling or as a dwelling for two or more persons or families living together or independently of each other.
'This Article shall not apply to the obtaining of property by eminent domain pursuant to Article I, Sections 14 and 14 1/2 of this Constitution, nor to the renting or providing of any accommodations for lodging purposes by a hotel, motel or other similar public place engaged in furnishing lodging to transient guests.
'If any part or provision of this Article, or the application thereof to any person or circumstance, is held invalid, the remainder of the Article, including the application of such part or provision to other persons or circumstances, shall not be affected thereby and shall continue in full force and effect. To this end the provisions of this Article are severable.' (Cal. Const., Art. I, § 26.)
3
Cal.Civ.Code §§ 51 and 52 provide in part as follows:
'All persons within the jurisdiction of this State are free and equal, and no matter what their race, color, religion, ancestry, or national origin are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.
'Whoever denies, or who aids, or incites such denial, or whoever makes any discrimination, distinction or restriction on account of color, race, religion, ancestry, or national origin, contrary to the provisions of Section 51 of this code, is liable for each and every such offense for the actual damages, and two hundred fifty dollars ($250) in addition thereto, suffered by any person denied the rights provided in Section 51 of this code.'
4
The trial court considered the case to be controlled by Abstract Investment Co. v. Hutchinson, 204 Cal.App.2d 242, 22 Cal.Rptr. 309, which in turn placed major reliance on Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, and Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586.
5
Respondents' complaint was dismissed without prejudice based on the trial court's finding that petitioner would not seek eviction without the declaratory relief he had requested.
6
See n. 2, supra.
7
In addition to the case we now have before us, two other cases decided the same day by the California Supreme Court are instructive concerning the range and impact of Art. I, § 26, of the California Constitution. In Hill v. Miller, 413 P.2d 852, 50 Cal.Rptr. 908 on rehearing, 64 Cal.2d 757, 415 P.2d 33, 51 Cal.Rptr. 689, a Negro tenant sued to restrain an eviction from a leased, single-family dwelling. The notice to quit served by the owner had expressly recited: 'The sole reason for this notice is that I have elected to exercise the right conferred upon me by Article I, Section 26, California Constitution, to rent said premises to members of the Caucasian race.' Although the California court had invalidated § 26, the court ruled against the Negro
plaintiff because the Unruh Act did not cover single-family dwellings. Thus the landlord's reliance on § 26 was superfluous.
In Peyton v. Barrington Plaza Corp., 64 Cal.2d 880, 413 P.2d 849, 50 Cal.Rptr. 905, a Negro physician sued to require the defendant corporation to lease him an apartment in Barrington Plaza which was described in the opinion as follows:
'that defendant received a $17,000,000, low interest rate loan under the National Housing Act to construct Barrington Plaza; that such sum represents 90 percent of the construction costs of the plaza; that the development is a part of the urban redevelopment program undertaken by the City of Los Angeles; that Barrington Plaza is the largest apartment development in the western United States, providing apartment living for 2,500 people; that it includes many retail shops and professional services within its self-contained facilities; that it provides a fall-out shelter, completely stocked by the federal government with emergency supplies; that the plaza replaced private homes of both Caucasians and non-Caucasians; that the city effected zoning changes to accommodate the development; that the defendant's securities were sold, its construction contracts were let, its building permits were issued and its shops and professional services established all pursuant to state or local approval, co-operation and authority.'
The defendant defendant the action and moved for judgment on the pleadings based on rt . I, § 26, of the California Constitution. The motion was granted but the judgment was reversed based on the decision in Mulkey v. Reitman.
8
This case was a sequel to Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759, which outlawed statutory disqualification of Negroes from voting in primary elections.
1
Civil Rights U.S.A., Housing in Washington, D.C., U.S. Commission on Civil Rights 12—15 (1962).
2
Id., 12—13.
3
Id., 14—15.
4
As the Hannah Commission said:
'Area housing patterns are sharply defined along racial lines. Most members of the housing industry appear to respect them. Although it is unlikely that these patterns are determined by formal agreement, it is probable that they are maintained by tacit understandings.' Id., 15.
5
Housing, U.S. Commission on Civil Rights 3 (1961).
6
Freedom to the Free, Century of Emancipation, Report to the President, U.S. Commission on Civil Rights 96 (1963).
7
City of Richmond v. Deans, 281 U.S. 704, 50 S.Ct. 407, 74 L.Ed. 1128.
8
Hearings before Subcommittee No. 5 of the House Committee on the Judiciary, 80th Cong., 2d Sess., ser. 16, 1639 (1966).
9
Ibid.
1
'Real Property' is defined by § 26 as 'any interest in real property of any kind 'any interest in real property of any kind or quality, present or future, irrespective of how obtained or financed, which is used, designed, constructed, zoned or otherwise devoted to or limited for residential purposes whether as a single family dwelling or as a dwelling for two or more persons or families living together or independently of each other.'
2
In McCabe v. Atchison, Topeka & Santa Fe R. Co., 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169, cited by the Court, the complaint of the Negro appellants was held to have been properly dismissed on the ground that its allegations were 'altogether too vague and indefinite,' id., at 163, 35 S.Ct. 71. In dictum the Court stated that where a State regulated the facilities of a common carrier it could not constitutionally enact a statute that did not comply with the 'separate but equal' doctrine. Whatever the implications of the Fourteenth Amendment may be as to common carriers, compare the opinions of Goldberg, J., concurring, and Black, J., dissenting, in Bell v. State of Maryland, 378 U.S. 226, 286 318, 84 S.Ct. 1814, 1847, 1864, 12 L.Ed.2d 822, nothing in McCabe would appear to have much relevance to the problem before us today.
Neither is there force in the Court's reliance on Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984, a voting case decided under the Fifteenth as well as the Fourteenth Amendment.
| 12
|
387 U.S. 326
87 S.Ct. 1585
18 L.Ed.2d 803
CHICAGO AND NORTH WESTERN RAILWAY COMPANY et al., Appellants,v.The ATCHISON, TOPEKA AND SNT A FE RAILWAY COMPANY et al. UNITED STATES et al., Appellants, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY et al.
Nos. 8 and 23.
Argued April 19, 1967.
Decided May 29, 1967.
[Syllabus from pages 326-328 intentionally omitted]
Arthur J. Cerra and Hugh B. Cox, Washington, D.C., for appellants.
Howard J. Trienens, George L. Saunders, Jr., Chicago, Ill., Calvin L. Rampton, Salt Lake City, Utah, and Cyril M. Saroyan, San Francisco, Cal., for the appellees.
Mr. Justice STEWART delivered the opinion of the Court.
1
This is a controversy between the Mountain-Pacific railroads and certain Midwestern railroads, involving the proper division between them of joint rates from through freight service in which they both participate. Dissatisfied with their share of existing divisions, the Midwestern carriers called upon the Interstate Commerce Commission's statutory authority to determine that joint rate divisions 'are or will be unjust, unreasonable, inequitable, or unduly preferential,' and to prescribe 'just, reasonable, and equitable divisions' in their place.1 The Commission found that the existing divisions were unlawful, and established new divisions which, on the average, gave the Midwestern carriers a greater share of the joint rates.2 The District Court set aside the Commission's order on the ground that certain of its findings were deficient.3 We noted probable jurisdiction, 383 U.S. 964, 86 S.Ct. 1269, 16 L.Ed.2d 307, to consider important questions regarding the Commission's powers and procedures raised by the District Court's decision.
I.
2
There were originally three groups of railroads involved in the proceedings before the Commission: the Eastern, Midwestern, and Mountain-Pacific carriers. The Eastern railroads operate in the northeastern area of the United States extending south to the Ohio River and parts of Virginia and west to central Illinois. Midwestern Territory lies between Eastern Territory and the Rocky Mountains, and the rest of the United States to the west constitutes Mountain-Pacific Territory. The latter is subdivided into Transcontinental Territory—comprising the States bordering the Pacific, Nevada, Arizona, and parts of Idaho, Utah, and New Mexico—and Intermountain Territory. The railroads operating in Southern Territory, which includes the southeastern United States, were not involved in the proceedings before the Commission.4
3
Railroads customarily establish joint through rates for interterritorial freight service, and the divisions of these rates, fixed by the Commission or by agreement, determine what share of the joint tariffs each of the several participating carriers receives. See St. Louis S.W.R. Co. v. United States, 245 U.S. 136, 139—140, n. 2, 38 S.Ct. 49, 50, 62 L.Ed. 199. In 1954 the Eastern carriers filed a complaint with the Commission seeking a greater share of the joint tariff on freight traffic east and west between Eastern Territory and Transcontinental Territory. Shortly thereafter, the Midwestern carriers also filed a complaint, requesting higher divisions on (1) their intermediate service on Eastern-Transcontinental traffic, (2) thir service on freight traffic east and west between Midwestern Territory and Transcontinental Territory. Some of the Midwestern lines had long believed that the Mountain-Pacific carriers enjoyed an unduly high share of the joint tariffs for these categories of traffic. When joint rates for traffic to the western United States were first established in the 1870's, rates were divided on the basis of the miles of carriage rendered by the participating railroads, but the Mountain-Pacific carriers enjoyed a 50% inflation in their mileage factor.5 In 1925, after the Commission had begun, but not yet completed an investigation of the existing divisions, the Mountain-Pacific carriers agreed to modest increases in the Midwestern railroads' share of joint rates. The divisions between Mountain-Pacific and Midwestern carriers have remained unchanged since that time.6
4
In the proceedings before the Commission, which consolidated the Eastern and the Midwestern complaints, the Mountain-Pacific railroads not only defended the existing divisions, but sought a 10% increase in their share. Regulatory commissions of States in Mountain-Pacific Territory also intervened. The consolidated proceedings involved rate divisions affecting about 300 railroads, which voluntarily aligned themselves into three groups—Eastern, Midwestern, and Mountain-Pacific—and submitted evidence and tried the case on this group basis. A great deal of time was consumed in compiling and introducing massive amounts of evidence—more than 800 exhibits and over 11,200 pages of testimony. The Hearing Examiners made a recommended report in 1960. After considering written briefs and oral arguments from the various groups of parties, the Commission issued its original report in March of 1963. The Commission found the existing divisions to be unlawful, and prescribed increased divisions for the Midwestern and Eastern carriers, effective July 1, 1963.
5
When exercising its statutory authority to establish 'just and reasonable' divisions under § 15(6) of the Interstate Commerce Act, the Commission is required to:
6
'(G)ive due consideration, among other things, to the efficiency with which the carriers concerned are operated, the amount of revenue required to pay their respective operating expenses, taxes, and a fair return on their railway property held for and used in the service of transportation, and the importance to the public of the transportation services of such carriers; and also whether any particular participating carrier is an originating, intermediate, or delivering line, and any other fact or circumstance which would ordinarily, without regard to the mileage haul, entitle one carrier to a greater or less proportion than another carrier of the joint rate, fare or charge.'7
7
After reviewing the nature of the traffic involved and considering the special claims of the various groups, the Commission found that 'none of the contending groups is more or less efficiently operated than another,' and that 'there are no differences in the importance to the public attributable to the three contending groups of carriers.' Its decision thus turned on more direct financial considerations, to which the Commission devoted a substantial part of its lengthy report. Under Commission practice, these financial considerations are divided into 'cost of service' and 'revenue needs.' The former consists of the out-of-pocket expenses directly associated with a particular service, including operating costs, taxes, and a four percent return on the property involved. 'Revenue needs' refers to broader requirements for funds is excess of out-of-pocket expenses, including funds for new investment.
8
In determining cost of service, the Commission relied upon a cost study prepared by the Mountain-Pacific railroads, but introduced certain modifications that produced different results. The Commission found that existing divisions on Eastern-Transcontinental traffic gave the Mountain-Pacific carriers revenues that exceeded their costs by 57%, while the Midwestern and Eastern railroads received only 43% and 22% more, respectively, than their costs for the service they contributed. On Midwestern-Transcontinental traffic, the Commission found that the divisions gave the Mountain-Pacific carriers revenues 71% above cost, while the Midwestern lines received only 39% above cost; on this traffic the Midwestern railroads bore 31.5% of the total cost but received only 27.1% of the total revenue.
9
In assessing comparative revenue needs, the Commission found that the average rate of return for 1946—1958, based on net railway operating income from all services as a percentage of the value of invested property,8 was 3.40% for the Eastern roads, 3.49% for the Midwestern group, and 4.64% for the Mountain-Pacific carriers. The Commission also found that the Mountain-Pacific railroads had the most favorable record and trend in both freight volume and freight revenues, and the Eastern railroads the least favorable, with the Midwestern roads occupying an intermediate position. In response to the Mountain-Pacific carriers' complaint that their net operating income from all services had not increased as fast as net investment in recent years, the Commission noted that this was primarily due to disproportionate passenger deficits that offset favorable income from freight services. The Commission also discounted the contention that the Mountain-Pacific carriers were entitled to greater revenues to provide funds for new investment, finding that the needs of the various carrier groups for such funds were not appreciably different. The claim of the Midwestern carriers that they had the most pressing need for revenues was also rejected by the Commission.
10
From all this evidence, the Commission concluded 'that there should be increases in (the Eastern carriers') divisions reflecting revenue need as well as cost.' While the very poor financial position and high revenue needs of the Eastern carriers were thus important elements in prescribing increases in their divisions, the Commission went on to find cost considerations the controlling factor with regard to the Midwestern divisions: 'As between the (Mountain-Pacific railroads) and the (Midwestern) railroads the differences in earning power are less marked, but our consideration of the evidence bearing on cost of service previously discussed convinces us that the primary midwestern divisions as a whole are too low.'
11
In establishing higher divisions for the Eastern carriers, the Commission relied upon the existing percentages governing divisions of the various rates between well-defined subareas in Eastern Territory and points in Transcontinental Territory. The Commission simply increased the percentages that the Eastern carriers or merly received on this traffic.9 However, the Commission concluded that it could not follow this procedure with respect to Midwestern divisions on Eastern-Transcontinental and Midwestern-Transcontinental traffic. If found that Midwestern-Transcontinental subgroupings were not well-defined and were in some cases not properly related to distance. Thus it was not feasible to assemble rates from various Midwestern points to Transcontinental points into common groups and apply fixed percentage divisions to each group in order to determine the respective shares of the Midwestern and Mountain-Pacific carriers. Instead, the Commission resorted to a weighted mileage basis of apportionment, determined through the use of divisional scales. The Commission has frequently used such scales in the past, and their use in this case was suggested by both the Midwestern and Mountain-Pacific carriers. Under the system adopted, the mileage contributed by each carrier to the joint service is broken down into 50-mile blocks. The scale chosen assigns each block a number. A large number is assigned the first block, and a smaller number to successive 50-mile increments; this is designed to reflect terminal and standby costs incurred regardless of the length of carriage contributed. Each carrier then receives a share of the joint revenue in proportion to the sum of scale numbers corresponding to its mileage contribution. To determine the divisions between the Midwestern and Mountain-Pacific carriers, the Commission used a 29886 scale—so named because it was developed in another interterritorial divisions case bearing that docket number.10 This scale assigns a factor of 65 to the first 50-mile block of carriage and a factor of 12 to each successive 50-mile increment.11 The Commission decided that the Midwestern carriers' shares would be determined by an unadjusted 29886 scale, but that the Mountain-Pacific carriers' shares should be based on the same scale with the mileage factors inflated by 10% to reflect certain greater costs of carriage in the mountainous West. Thus, for their carriage, the Mountain-Pacific carriers would enjoy a factor of 72 for the first 50-mile block, and a factor of 13 for successive 50-mile increments.12 For any joint carriage, the Midwestern and Mountain-Pacific carriers would translate their mileage contributions into scale numbers, and divide the proceeds in proportion to the numbers so obtained.13 The divisions thus essentially reflect a mileage basis, with disproportionate weight assigned the first 50 miles of carriage and an overall inflation factor favoring the Mountain-Pacific carriers. The Commission found that the net effect of its revised scale would be to 'produce moderate increases in some of the most important midwestern divisions.'
12
After entertaining petitions for reconsideration, the Commission adopted a supplemental report in late 1963. For the first time, a few carriers abandoned the three-group basis on which all the prior proceedings had been conducted. Requests for special treatment were made on behalf of one Mountain-Pacific road, the Denver & Rio Grande, and two Midwestern carriers, the Missouri-Kansas-Texas (Katy) and the St. Louis-San Francisco (Frisco), on the ground that the divisions prescribed by the Commission had an unduly harsh effect on them.14 The Commission considered and largely rejected these and other criticisms of its original decision, and issued a supplemental order substantially reaffirming its original order after making minor technical modifications.
13
Eleven of the Mountain-Pacific carriers brought an action in the District Court to enjoin and set aside the Commission's orders and succeeded in obtaining preliminary injunctions. Other Mountain-Pacific carriers, the western state regulatory commissions, and the Katy and the Frisco intervened as plaintiffs, while the Eastern carriers and a group of Midwestern railroads intervened on the side of the Government and the Commission as defendants. In January 1965 the District Court handed down the decision setting aside the Commission's orders. The court held that the findings made by the Commission with regard to the revenue need, cost of service, public importance, etc., of the Eastern, Midwestern, and Mountain-Pacific carriers were insufficient because they were made on a group basis. In the view of the District Court, the Interstate Commerce Act required the Commission to make such findings with respect to each of the 300 railroads involved, on an individual basis. The District Court further held that in a divisions case the Commission is obliged to determine in precise dollar amount, the revenue needs of each individual railroad, and also the revenue effect on each individual railroad, again in precise dollar amount, of the new divisions that the Commission establishes. The District Court in conclusion stated:15
14
'(T)hat to comply with * * * the Interstate Commerce and the Administrative Procedure Acts * * * the Commission is required to make affirmative findings which disclose that the requirements of Section 15(6) have been met and the factors therein required have been determined and considered, not only as to the groups of roads involved but with respect to each carrier affected in said groups; that findings must be made as to the amount of revenue, in terms of dollars, required by the respective carriers affected in any new divisions prescribed, the financial effect of the Commission's orders in terms of ol lars as to the carriers and the extent to which the new divisions prescribed will produce the revenue found to be required * * *.'
15
The Eastern carriers, the Midwestern defendants, and the Government and the Commission all appealed the decision of the District Court. Thereafter, all of the Eastern and some of the Midwestern carriers16 reached settlement agreements with the Mountain-Pacific carriers covering the rate divisions affecting them. We accordingly vacated the judgment of the District Court with respect to the divisions of the Eastern and the settling Midwestern railroads, and remanded the relevant portions of the appeals to the District Court, with instructions to dismiss as moot. 383 U.S. 832, 86 S.Ct. 1236, 16 L.Ed.2d 297; 384 U.S. 888, 86 S.Ct. 1912, 16 L.Ed.2d 994. Thus, the principal dispute remaining concerns the divisions between the Mountain-Pacific carriers and the eight principal Midwestern roads that are appellants in No. 8.17
II.
16
None of the appellees now defends the position espoused by the District Court, that the Commission was required to make separate individual findings for each of the 300 railroads involved in the proceedings before it. But the error in that position, which rejects over 40 years of consistent administrative practice, requires comment.
17
In its first decision involving rate divisions under § 15(6), the New England Divisions Case, 261 U.S. 184, 43 S.Ct. 270, 67 L.Ed. 605, the Court upheld the authority of the Commission to take evidence and make findings on a group basis. Speaking for a unanimous Court, Mr. Justice Brandeis noted that the 'actual necessities of procedure and administration' required procedures on a group basis in rate-making cases, and that a similar practice was appropriate in divisions cases. The complexity of the subject matter and the multiplicity of carriers typically involved in divisions cases were such that a wooden requirement of individual findings would make effective regulation all but impossible. The Court held that the Interstate Commerce Act permits the Commission to proceed on a group basis and to rely on 'evidence which the Commission assumed was typical in character, and ample in quantity' to justify its findings, reasoning that:
18
'Obviously, Congress intended that a method should be pursued by which the task, which it imposed upon the Commission, could be performed. * * * To require specific evidence, and separate adjudication, in respect to each division of each rate of each carrier, would be tantamount to denying the possibility of granting relief. We must assume that Congress knew this * * *.' 261 U.S., at 196—197, 43 S.Ct. at 275.
19
Both the Court18 and the Commission19 have consistently adhered to this construction of the Act's requirements and its rejection by the District Court in this case was error.20
20
The pragmatic justifications for the Commission's group procedures are obvious. Even on a group basis, the Commission proceedings in this case require a voluminous record and were not completed until nearly 10 years after the complaints were filed. To demand individual evidence and findings for each of the 300 carriers in the Commission proceedings would so inflate the record and prolong administrative adjudication that the Commission's regulatory authority would be paralyzed.
21
Nor do considerations of fairness require disregard of administrative necessities. The premise of group proceedings, as the New England Divisions Case explicitly recognized, is that evidence pertaining to a group is typical of its individual members. 261 U.S., at 196—199, 43 S.Ct., at 275—276. See also Beaumont, S.L. & W.R. Co. v. United States, 282 U.S. 74, 82—83, 51 S.Ct. 1, 4—5, 75 L.Ed. 221. It has always been accepted that an individual carrier may challenge this premise and, on proper showing, receive independent consideration if its individual situation is so atypical that its inclusion in group consideration would be inappropriate. It is the Commission's practice to accord independent treatment to an individual carrier when a proper request for special consideration is made.21 But no such requests were made during the hearings and presentation of evidence in this case. Instead, the individual carriers voluntarily aligned themselves into groups, presented evidence and tried the case on a group basis, and asked the Commission to prescribe new divisions on a group basis. In this situation, the Commission was not obligated on its own motion to demand evidence and make findings on an individual basis. Departure from the practicalities of group procedure is justified only when there is a real need for separate treatment of a given carrier; the individual carriers themselves, which have the closest understanding of their own situation and interests, are normally the appropriate parties to show that such need exists.
22
The Denver & Rio Grande, the Katy, and the Frisco did request independent consideration in petitions for reconsideration of the Commission's original decision. Their claims will be discussed below in Part VI of this opinion, but it should be noted that at no point during the administrative hearings or the presentation of evidence did they raise any claim for separate treatment. Moreover, their contention basically is not that the group evidence or findings were unrepresentative, but rather that the divisions prescribed by the Commission have an unduly harsh impact on them. Even if it were assumed that the Commission's disposition of this contention was erroneous, that would be no ground for requiring the Commission to make individual findings for the rest of the 300 carriers involved.
III.
23
Among the errors that the District Court found in the Commission's decision was its failure to state the revenue needs of each individual carrier in terms of precise dollar amount. While not defending the requirement of individual findings, the appellees do contend that the Commission was required to dte rmine the revenue needs of the various carrier groups in precise dollar amount, and they also urge other errors in the Commission's treatment of revenue needs. We believe, however, that in the case's present posture these criticisms are largely misdirected.
24
In increasing the shares of the Eastern railroads the Commission did rely on revenue needs as well as costs, but it found costs alone the controlling factor in raising the divisions of the Midwestern carriers. In the conclusions in its original report, the Commission stated that there should be increases in the Eastern divisions 'reflecting revenue need as well as cost,' but in the very next sentence it went on to say that as between the Midwestern and Mountain-Pacific roads, 'differences in earning power are less marked, but our consideration of the evidence bearing on cost of service previously discussed convinces us that the primary midwestern divisions as a whole are too low.' Its reliance on costs alone in increasing the Midwestern shares is confirmed by the Commission's supplemental report, in which it again rejected a request of the Midwestern carriers for even higher divisions based on their claim of pressing revenue needs: 'It was our stated view that (increases in the Midwestern divisions) were supported by the evidence concerning cost of service, but that the proposal of the midwestern lines gave undue weight to their claimed revenue need.'22 Since revenue needs were important factors only which regard to the Eastern divisions, and those divisions are no longer in issue because the Eastern roads have settled with the Mountain-Pacific carriers, any errors committed by the Commission in its treatment of revenue needs are no longer relevant.23 But even assuming that the Commission did attach some limited significance to revenue needs in raising the Midwestern divisions, we cannot conclude that its treatment of revenue needs was legally inadequate. The Commission devoted over 25 pages of its reports to revenue needs. It discussed at length the proper basis for computing rates of return and found the rates of return for the various carrier groups; it also examined the record and trends in net railway operating income from all services, and from freight and passenger services considered separately.
25
The Commission placed considerable emphasis on rates of return in its discussion of comparative revenue needs. Following its established practice, it found that a value basis, rather than book cost, as urged by the Mountain-Pacific roads, was the proper method for calculating the investment base.24 The evidence disclosed that the Mountain-Pacific lines had enjoyed a 4.64% return, as opposed to 3.40% for the Eastern lines, and 3.49% for the Midwestern lines. The suggestion that these findings in terms of rate of return were insufficient because they did not express revenue needs in terms of absolute dollar amount is totally novel and unreasonable. This suggestion seems to stem from a misconception of the Commission's function in divisioins cases. Its tasks is not to transfer lump sums of cash from one carrier to another, but to 'make divisions that colloquially may be said to be fair.' Baltimore & O.R. Co. v. United States, 298 U.S. 349, 357, 56 S.Ct. 797, 802, 80 L.Ed. 1209.25 The relative financial strength of the carriers involved is a key factor in this task, see the New England Divisions Case, 261 .S . 184, 189 192, 43 S.Ct. 270, 273—274, 67 L.Ed. 605, and the use of comparative rates of return is an obviously appropriate basis for the exercise of administrative judgment. Rates of return are a familiar tool of analysis in the financial community. The Commission has long relied on this form of analysis in divisions cases,26 and in passing on the Commission's performance in such cases, this Court has never suggested that ultimate findings of revenue need in terms of absolute dollar amount were required.27 Appellees are unable to suggest any clear regulatory purpose that would be served by such findings. We decline now to impose upon the Commission a rigid mechanical requirement that is without foundation in precedent, practice, or policy.
26
Appellees, especially the regulatory commissions, vigorously contend that reliance on rates of return showing the Mountain-Pacific carriers in a heavily favorable position was inappropriate because the Commission overlooked the Mountain-Pacific carriers' disproportionate need for funds for new investment. It might be questioned whether forcing carriers in other parts of the country to accept divisions lower than those to which they would otherwise be entitled is a sensible means of raising funds for new investment in the Far West. But the Commission did not reach this issue because it found that the Mountain-Pacific carriers did not in fact have a greater need for investment funds than railroads elsewhere:
27
'We are unable to agree with the (Mountain-Pacific carriers) and (the regulatory commissions) that the public interest warrants increases in the divisions of the mountain-Pacific railroads in order to provide a source of investment funds required for enlarged facilities commensurate with industrial development in that region. The railroads in all sections of the country are faced with the continuing necessity of raising funds for additions and betterments and new equipment, and we cannot recognize any difference in the degree of this urgency among the territorial groups.'
28
The appellees have sought to convince us that this finding is factually incorrect, but we decline to invade the administrative province and second-guess the Commission on matters within its expert judgment. Baltimore & O.R. Co. v. United States, 298 U.S. 349, 359, 56 S.Ct. 797, 803, 80 L.Ed. 1209; Alabama G.S.R Co. v. United States, 340 U.S. 216, 227—228, 71 S.Ct. 264, 271—272, 95 L.Ed. 225.
29
The appellees also contend that the Commission erred in its treatment of passenger deficits. In discussing revenue needs, the Commission pointed out that since 1950—1952 the Moutain-Pacific carriers had enjoyed substantial increases in operating revenue from freight services, while the freight revenue of the Eastern carriers had declined. It also noted that the Midwestern carriers' freight revenues had remained relatively constant, and concluded that these comparative trends were likely to continue. The Mountain-Pacific carriers, however, complained that, despite their favorable trend in freight revenues and large amounts of new investment that they had recently made, their rate of return from all services had declined. In reply, the Commission observed that the Mountain-Pacific carriers' passenger deficits had increased substantially since 1950—1952 and had offset their impressive performance in freight revenues.
30
The Mountain-Pacific roads now argue that the Commission's decision to increase the Midwestern divisions was based almost exclusively on its treatment of Mountain-Pacific passenger deficits. They further contend that this treatment was invalid on the grounds that it constituted unfair procedural surprise, that the statute does not permit the Commission to differentiate railroads' performance as freight carriers and passenger carriers when it assesses revenue needs in a freight rate divisions case, and that the Commission erred in assuming that, because their statistical passenger deficits had increased, the Mountain-Pacific carriers were capable of making a real improvement in their overall performance by reducing passenger service.
31
We regard the assumption that the Commission attached great importance to Mountain-Pacific passenger deficits in raising the Midwestern divisions as fanciful. As we have already noted, those increases were based exclusively or almost entirely on cost considerations. To the extent the Commission may have relied on comparative revenue needs, passenger deficits were not a significant factor. The discussion of passenger deficits in the Commission's original report occurred primarily in the context ofco mparing the revenue needs of the Mountain-Pacific carriers with those of the Eastern roads, when the Commission emphasized that the Eastern railroads had been much more successful in curbing losses on passenger service than the Mountain-Pacific carriers. Any error in the Commission's treatment of passenger deficits prejudiced the Midwestern as well as the Mountain-Pacific carriers, for in rejecting a Midwestern revenue needs argument in its supplemental report, the Commission noted that the Midwestern carriers had also done a much poorer job than the Eastern carriers in halting the swell of passenger deficits. Furthermore, the Commission did not ignore the overall financial strength of the various groups of carriers, but found that the Mountain-Pacific carriers' rate of return from all services was substantially higher than that of either the Midwestern or Eastern carriers.
32
The claim of unfair surprise is strained in light of the fact that the Commission has frequently differentiated passenger and freight revenues in freight rate division cases.28 While passenger deficits did not become an important issue in this case until the report of the Hearing Examiners was handed down, the Commission relied upon statistics which were matters of public record, and the Mountain-Pacific carriers had ample opportunity to debate the issue in their exceptions to the Hearing Examiners' report and their petitions for reconsideration of the Commission's original decision. And while the Commission has sometimes acted to offset passenger deficits in freight rate cases,29 the issues are quite different when, in a divisions case, it is argued that carriers in one part of the country should subsidize the passenger operations of carriers elsewhere.
33
If the Commission were to give controlling weight to passenger deficits in a divisions case, it might be appropriate to take more evidence on the issue and discuss it in greater depth than the Commission did here. But in light of the fact that, in this case, passenger deficits were of negligible relevance to the Commission's decision to increase the Midwestern divisions, we find no errors in the Commission's findings and procedure on this point that would justify setting aside its order.
IV.
34
Rejection of the appellees' attacks on the Commission's treatment of revenue needs does not exhaust their arsenal. For they argue that the Commission's findings on costs, which were the basis of its decision to raise the Midwestern divisions, were also infected with serious error.
35
All are agreed that the relevant costs are those of the Eastern-Transcontinental and Midwestern-Transcontinental freight traffic to which the divisions apply. But throughout the proceedings there has been sharp dispute as to the proper method of ascertaining these costs. At the beginning of the administrative hearings, the Midwestern and Eastern carriers relied principally on the Commission's standard Rail Form A, a formulation based on average freight data which, as the Commission noted, 'has been widely used as an acceptable means of comparing relative transportation costs.' The Mountain-Pacific carriers took the position that Rail Form A, based on averages of all freight service, was not a proper yardstick for measuring the costs of the particular traffic involved in the contested divisions, which, they maintained, had certain distinctive characteristics. The Mountain-Pacific roads prepared their own cost system, based upon a studyof this traffic. The Midwestern and Eastern lines responded with other material, and the Midwestern carriers conducted their own special study of linehaul services. Disputes over the applicability of Rail Form A and the various approaches urged by the parties occupied a large part of the administrative proceedings. As the Commission observed:
36
'The evidence pertaining to the cost studies of the (Mountain-Pacific carriers) and the midwestern lines was extensive. In addition to the detailed testimony of the cost analysts who planned the studies and supervised their compilation, evidence was presented by many other witnesses concerned with operating, statistical, engineering, and mathematical aspects of the projects. In criticism of the studies the (Eastern carriers) and the midwestern lines also introduced detailed evidence of the same general nature and considerable bulk.'
37
After carefully considering this evidence, the Commission decided to base its cost findings on the special cost study and analysis prepared by the Mountain-Pacific carriers. However, it made certain adjustments in the Mountain-Pacific analysis which, in the adjustment of the Commission, more accurately reflected the true costs of the traffic involved.
38
The Commission substituted its own ratio for empty-car returns, derived from Rail Form A, for that devised by the Mountain-Pacific carriers. It summarized its reasons for this choice in its supplemental report:
39
'It is difficult to ascribe the empty movement of a car to a particular commodity or class of traffic because of the variety of the lading, and the fact that cars used occasionally for hauling transcontinental traffic may at other times serve widely different uses, including local movements within each territory * * *. The defendants urge that insufficient consideration was given to special cars * * *. They would be included in (Rail Form A) tending to increase the empty-return ratios in all territories. Here they accounted for only about 4 percent of the total movement * * *.
40
'Many special studies of empty-return movement were undertaken in these proceedings, each showing a different result. The deficiencies in the (MountainPacific carriers') studies of general-purpose boxcar empty return * * * are so serious in our opinion as to render them without value. We adhere to our prior finding that the 7-day studies made under an order of the Commission and based on uniform instructions to all the railroads as to how the studies were to be made, afford a more reliable basis of comparison among territories. Moreover, on the basis of the evidence in this record, the 7-day studies provide appropriate comparative ratios to the traffic in issue.'
41
The Commission also disagreed with the Mountain-Pacific study's treatment of the 'constant cost' element of road costs that which is unrelated to volume of traffic. It found the accounting methods used to distribute these costs in Rail Form A to be more accurate. The Mountain-Pacific roads claimed that this method unduly favored the Midwestern lines by improperly ascribing the maintenance costs of branch and light-density main lines to the cost of their transcontinental traffic. The Commission, however, found that the evidence showed:
42
'(T)hat the proportion of branch line mileage for each group is almost the same and the amount of traffic on branch lines is so small that some other factors cause the lower unit cost in mountain-Pacific territory. The principal factor is clearly the high density of traffic, 76 percent higher than the Midwest.
43
'Although the cost per mile may be somewhat higher in mountainous territory, this higher cost is shared by so many more tons of traffic that the cost per ton-mile is lower.
44
'It is the light density on the main lines in the Midwest which causes (their) higher costs. These lines are used by bridge traffic, and it is, therefore, quite correct to charge this bridge traffic with its proportionate share of maintaining the lines over which it moves.'
45
The Comis sion made certain adjustment in the basis for determining locomotive costs; the Mountain-Pacific carriers' objections to this adjustment were directed at the Commission's reliance on differences it found between engine districts in Eastern Territory and those elsewhere. Any error in this adjustment is thus relevant only to the Eastern divisions, which are no longer in issue. The Commission also substituted Rail Form A treatment of car service costs, after finding that the Mountain-Pacific study ignored actual territorial differences in this item. Again, this issue related only to the Eastern divisions. In ascertaining the cost attributable to equipment used in the service at issue, the Commission chose a 4% rate of return on investment, a figure traditionally employed by it for this purpose, rather than the 6% figure urged by the Mountain-Pacific carriers. And, in harmony with its treatment of revenue needs, the Commission chose its standard value basis to measure the investment involved, rather than the book cost used by the Mountain-Pacific study.30
46
From the Mountain-Pacific cost study, as adjusted in these particulars, the Commission found that the Mountain-Pacific carriers enjoyed a much higher margin of revenue over costs than did the Midwestern carriers, and for this reason prescribed increases in the Midwestern divisions.
47
In the proceedings before the District Court, the Mountain-Pacific carriers generally attacked the adjustments made by the Commission in their cost study, claiming that their approach more accurately reflected the costs involved. They particularly maintained that the Commission should have forced the Eastern and Midwestern carriers to produce evidence on empty-car return ratios on the same basis that the Mountain-Pacific carriers had used in their cost study. The Midwestern carriers, however, had come forward with specific empty-return data, and the Commission also observed that:
48
'In the prehearing conference in the instant cases the advisability of instituting an overall general investigation was discussed but the (Mountain-Pacific carriers) opposed the suggestion, and the matter was dropped. * * * Nor do we see in the record any basis for assuming that the eastern and midwestern complainants withheld vital evidence merely because they had different conceptions of the nature and extent of facts to be developed.'
49
The Mountain-Pacific carriers also contended that certain factual premises on which the Commission based its allocation of road maintenance costs were erroneous and that there was no foundation for the Commission's choice of a value basis for investment rather than book cost.
50
The District Court did not directly deal with these contentions, stating rather cryptically that in light of its conclusions on the revenue needs issues, 'it is unnecessary to discuss (the cost issues). However, no inference is to be drawn that the court is of the opinion that the (cost issues), or any other numbered issues not discussed in this opinion, are of the nature it would be required to decide should they be raised at some future time.'31
51
The appellees argue that since the District Court failed to pass on the cost issues, we are precluded from doing so. It is true that we have occasionally stated that it is not our general practice 'to review an administrative record in the first instance.' United States v. Great Northern R. Co., 343 U.S. 562, 578, 72 S.Ct. 985, 994, 96 L.Ed. 1142; Seaboard Air Line R. Co. v. United States, 382 U.S. 154, 157, 86 S.Ct. 277, 278, 15 L.Ed.2d 223. But we think that policy is not applicable on the facts of this case. The presentation and discussion of evidence on cost issues cns tituted a dominant part of the lengthy administrative hearings, and the issues were thoroughly explored and contested before the Commission. Its factual findings and treatment of accounting problems concerned matters relating entirely to the special and complex peculiarities of the railroad industry. Our previous description of the Commission's disposition of these matters is sufficient to show that its conclusions had reasoned foundation and were within the area of its expert judgment. Baltimore & O.R. Co. v. United States, 298 U.S. 349, 359, 56 S.Ct. 797, 803, 80 L.Ed. 1209; New York v. United States, 331 U.S. 284, 328, 335, 349, 67 S.Ct. 1207, 1230, 1234—1241, 91 L.Ed. 1492. Thirteen years have elapsed since the complaints in this case were first filed. The appellees' attacks on the legal validity of the Commission's findings on cost are so insubstantial that no useful purpose would be served by further proceedings in the District Court. We conclude that there was no legal infirmity in the Commission's cost findings.
V.
52
The Commission devised a special divisional scale, adapted to the particular circumstances of this case and designed to produce the moderate overall increases in the Midwestern divisions that it found justified by the evidence relating to cost of service. Appellees contend that the Commission did not sufficiently explain its choice of new divisions, that the divisions are not justified by the evidence relating to cost, and that the Commission was required to find the exact revenue effect of the new divisions in precise dollar amount. None of these contentions has sufficient merit to warrant setting aside the Commission's order.
53
In discussing its choice of the modified 29886 divisional scale, the Commission stated:
54
'Although broad groups are now employed in connection with the divisions of rates between midwestern and transcontinental territories, they are less well defined than those on which the (Eastern-Transcontinental) divisions are based, and in a number of instances they appear not to be properly related to distance. The midwestern lines urge that in lieu of prescribing new (Midwestern-Transcontinental) divisions on a group basis we should formulate scales of divisional factors and authorize the two groups of carriers to apply these to groups agreed upon by them. The defendants apparently are not opposed to that course. In our opinion divisional scales afford an appropriate means of readjusting the (Midwestern-Transcontinental) divisions, and the possibility of such use was discussed extensively in the record.'
55
The Commission then rejected certain divisional scales urged by the Mountain-Pacific lines on the ground that they were not justified by the evidence on cost of service. However, it found that the 29886 scale, which had been discussed by a witness for the Mountain-Pacific carriers, and which the Commission had employed previously, could be adapted for use in this case after adjustments were made to reflect certain Mountain-Pacific costs:
56
'Consistency with our action in prescribing intraterritorial class rates for mountain-Pacific territory higher than those in the rest of the country * * * makes it logical to provide a higher scale of divisional factors for that territory here, but a difference of more than 10 percent would not be justified in our opinion. The scales shown in appendix C reflect that difference. They would produce moderate increases in some of the most important midwestern divisions.'
57
Burlington Truck Lines v. United States, 371 U.S. 156, 83 S.Ct. 239, 9 L.Ed.2d 207, relied upon by the appellees, is thus inapposite. In that case the Court stressed that there were 'no findings and no analysis' to justify the Commission's choice of remedy, 'no indication of the basis on which the Commission exercised its expert discretion.' 371 U.S., at 167, 83 S.Ct., at 245. See also Gilbertville Trucking Co. v. United States, 371 U.S. 115, 129—131, 83 S.Ct. 217, 225—226, 9 L.Ed.2d 177. Here the Commission explained why it had escorted to divisional scales and why it modified the familiar 29886 scale; it found that the modified scale would produce divisions appropriate to its cost findings. The Commission's 'expert discretion' has a considerable role to play in so technical a matter as railroad rate divisions, and there was sufficient explanation of its exercise in this case. Alabama G.S.R. Co. v. United States, 340 U.S. 216, 227—228, 71 S.Ct. 264, 271—272, 95 L.Ed. 225; Board of Trade of Kansas City, Mo. v. United States, 314 U.S. 534, 548, 62 S.Ct. 366, 372, 86 L.Ed. 432.
58
Appellees claim that if the changes in divisions were based on costs, the Commission was required to start from scratch and construct the new divisional scale directly from cost data. In their view, a scale like that used by the Commission in this case, constructed on a weighted mileage basis and adjusted to reflect comparative costs, is per se invalid. We cannot impose such mechanical restrictions on the range of remedies from which the Commission may choose. It is true that in a more recent territorial divisions case, involving Eastern and Southern Territories, the Commission did establish a divisional scale constructed directly from costs.32 But the two methods of constructing divisional scales are merely alternative mechanisms for dividing rates in conformity with the evidence.33 What is appropriate in one case may be inappropriate in another, and the fact that the Commission may, in the light of accumulating experience, devise new remedial techniques does not make the ones that it formerly employed unlawful.34 It is also true that the changes produced by the new scale were not the same for every existing division. Some of the particular Midwestern divisions were increased more than others, and a few were actually reduced. But that is only to be expected when a uniform scale is substituted for divisions produced by negotiation between the several carriers, and especially when, as the Commission found, the existing divisions were based on subgroupings that were not well-defined. Cf. Beaumont, S.L. & W.R. Co. v. United States, 282 U.S. 74, 86—88, 51 S.Ct. 1, 5—6, 75 L.Ed. 221. The Commission's cost findings dictated moderate overall increases in the Midwestern divisions; the remedy it chose was appropriately calculated to achieve that result.
59
The District Court held that the Commission was required to find the exact effect, in precise dollar amount, of the new divisions on the revenues of each of the 300 carriers involved in the Commission proceedings. The appellees also contend that the Commission was obliged to make such findings, at least with respect to the various carrier groups involved. These views stem from the same misconception of the Commission's decision that we have already dealt with in the discussion concerning revenue needs. The Commission did not undertake to transfer lump sums of money from the Mountain-Pacific carriers to the Midwestern roads in order to meet certain defined revenue needs of the latter carriers. If it had, there might be more substance to these contentions. But, even in such a case, all the details of the divisions' actual operationmi ght be difficult to foresee, and precise calculation impossible. It is also dubious whether any useful regulatory purpose would be served by such a rigid requirement, which this Court has never imposed in the past.35 In any event, the Commission's action in this case was based not on revenue needs, but cost of service, and it found that the divisions which it established would produce moderate overall increases in the shares of the Midwestern group, in accord with its cost findings. None of the figures, charts, or tables concocted by the appellees convinces us that this finding was not based upon substantial evidence. Alabama G.S.R. Co. v. United States, 340 U.S. 216, 227 228, 71 S.Ct. 264, 271—272, 95 L.Ed. 225.
60
Finally, the Mountain-Pacific carriers quarrel with the Commission's prescription of a minimum division of 15%. They contend that the evidence pertaining to terminal costs and standby costs that a participating railroad must incur regardless of the length of its carriage does not justify so high a minimum division. But the Commission found that: 'Both in many divisional bases voluntarily established in the past and as well in our decisions it has been common practice to accord minimum divisions for carriers having relatively short hauls, sometimes as high as 20 or 25 percent but more usually 15 percent. The increasingly burdensome terminal costs in recent years are persuasive that a 15-percent minimum is justified.' We cannot find that the Commission exceeded its proper role in weighing and interpreting the evidence when it made this finding. Baltimore & O.R. Co. v. United States, 298 U.S. 349, 359, 56 S.Ct. 797, 803, 80 L.Ed. 1209. For similar reasons, we also reject the Mountain-Pacific carriers' criticism of the weight assigned to the first 50 miles of carriage in the Commission's divisional scales.
VI.
61
The appellees finally contend that the Commission erred in its treatment of a single Mountain-Pacific carrier, the Denver & Rio Grande, and two Midwestern carriers, the Katy and the Frisco. It is argued that the situation of these three carriers was dissimilar to that of the groups with whom they were considered, that the typical evidence rule of the New England Divisions Case was inapplicable, and that the Commission was therefore required to make separate findings concerning these carriers. The appellants point out that these carriers voluntarily aligned themselves with their respective groups, presented evidence and argued the case on that basis, and never suggested that they should receive separate treatment until after the Commission's original decision. They argued that the Commission should not be required, on its own motion, to guess which of 300 carriers may require individual treatment when none of them even requests it. Cf. United States v. L. A. Tucker Truck Lines, 344 U.S. 33, 37, 73 S.Ct. 67, 69, 97 L.Ed. 54. The District Court resolved these contentions by stating that 'there has been no intentional relinquishment of a known right on the part of any of these roads.'36 This language is more appropriate to a criminal trial than an administrative proceeding. Reconciling the need for efficient regulatory adjudication with fairness to the parties and due concern for the public interest is a different, and difficult, problem.
62
But we need not undertake to resolve this problem in all its broad ramifications. The contentions made on behalf of the three individual carriers are basically quite limited. It is not argued that the Commission erred in generally treating them on a group basis and not making individual findings on their costs and revenue needs. The basis claim is that the divisions prescribed by the Commission have an unfair and unduly harsh impact on these individual carriers.
63
The Katy and the Frisco claim that the new divisions will result in a net decrease in their revenue shares; while many of their divisions were increased under the Commisson § order, some highly profitable divisions that they had negotiated with respect to lumber carriage were reduced. The Commission found that this situation 'was fully disclosed in the evidence of the midwestern lines and foreshadowed in the examiners' recommended report. The petitioners are therefore not in a position to claim that the effect of our decision was a surprise.' But more than procedural grounds justify rejecting the tardy claims of the Frisco and the Katy for separate treatment. The Act does not give any carrier a vested right to divisions that it may have negotiated. It does not recognize prescriptive privileges, but requires the Commission to establish 'just, reasonable, and equitable divisions.' The mere fact that the new divisions may have caused a net reduction in the revenues of two Midwestern carriers while raising those of other Midwestern carriers does not establish the invalidity of the new divisions. For the high divisions on lumber previously negotiated by these two roads may have been far in excess of their cost of service. The Katy and the Frisco have not shown that the new divisions do not fairly reflect their cost of service. The Commission was justified in stating that '(w)e see no reason for making a special exception from our findings' for them.
64
Moreover, the losses claimed by the Frisco and the Katy were based primarily on the new divisions' effect in apportioning revenues between themselves and the Mountain-Pacific carriers. But this aspect of the case is no longer in issue, because the Katy and the Frisco have settled with the Mountain-Pacific carriers and agreed on negotiated divisions. Thus, the Commission's divisions affect the Katy and the Frisco only insofar as they must divide revenues with other Midwestern carriers on service in which they jointly participate. The Katy and the Frisco are silent as to the effect on their revenues of the new divisions operating in this much more limited respect. We may assume that the losses produced, if any, are small.
65
The Denver & Rio Grande also complains of reductions in its revenues caused by the new divisions. Since it is one of the Mountain-Pacific carriers, whose existing divisions the Commission found too high in terms of cost of service, some reduction was of course to be expected. But the Denver & Rio Grande states that its competitive and geographical situation is such that it must bear a disproportionate share of the reductions in the Mountain-Pacific divisions, with allegedly disastrous effects on its net income.
66
The Rio Grande participates in transcontinental service between Utah gateways (Ogden and Salt Lake City) and Denver and Pueblo, Colorado, on the border of Mountain-Pacific Territory. There it interchanges with Midwestern carriers who provide service to the Missouri River and beyond. The Union Pacific operates entirely by itself a competitive route between Utah and Missouri River gateways. Both the Union Pacific and the Rio Grande accept traffic at the Utah gateways from the Western Pacific and the Southern Pacific. The Commission's divisions break at the border of Mountain-Pacific territory, at the Colorado junctions, but do not provide for any subdivisions in Mountain-Pacific territory. The Rio Grande complains that, as a result, it must bear the whole reduction in the Mountain-Pacific divisions. Its competitor, the Union Pacific, is unaffected by the new divisions because it operates in both Mountain-Pacific and Midwestern territory and does not, insofar as relevant here, interchange with Midwestern carriers. The Rio Grande contends that the Southern Pacific and Western Pacific will not accept divisions from it lower than they obtain from the Union Pacific, and thus it will be squeezed. It alleges that it will lose $8,500,000 as a result, and that its net income is only 10,500,000.
67
Divisions over these competing Utah-Missouri River routes were equalized under the existing system. In the Commission proceedings, the Midwestern carriers urged that these routes also be equalied under the new divisions. However, this would require the Commission to establish subdivisions in Mountain-Pacific territory east and west of the Utah gateways, and the Mountain-Pacific carriers, including the Rio Grande, resisted this proposal on the ground that it was outside the issues raised by the pleadings. If the Rio Grande's description of its competitive situation is accurate it was obvious, from at least the time of the examiners' recommended report, that it would bear most or all of the reductions in the Mountain-Pacific divisions unless the Commission prescribed subdivisions within Mountain-Pacific territory. Nevertheless, it joined the other Mountain-Pacific lines in stating to the Commission that:
68
'The Midwestern lines ask that the Commission fix divisions over Utah gateways, not served by any Midwestern line, in the interest of equalizing competing routes. * * * In dealing with this contention, two considerations must be sharply differentiated. The first is the general desirability of equalizing divisions; the Mountain-Pacific lines agree that the parties should be free to equalize divisions over competitive routes * * *. But a very different question is raised when the Midwestern lines ask the Commission to prescribe divisions over gateways 500 miles inside Mountain-Pacific territory and served only by Mountain-Pacific lines. Such a prescription is beyond the issues of the complaints before the Commission in this proceeding.'
69
In rejecting the belated claims made by the Mountain-Pacific carriers on behalf of the Rio Grande, the Commission was justified in concluding that: 'The midwestern complainants are correct in stating that the 'problem is left precisely where the transcontinental defendants insisted that it be left.' We therefore see no reason for the modification of our findings sought by the defendants.'
70
Of course, the Commission could not simply rest on such notions of estoppel to justify infliction of substantial injury upon an important railroad serving the public. But it was not at all clear at the time of the Commission's decision, and it is still not clear, that the new divisions will have the disastrous or unfair effects alleged by the Rio Grande. The revenue effect on the Rio Grande hinges, in important part, on the subdivisions it is able to negotiate with the other Mountain-Pacific carriers. The Mountain-Pacific carriers, including the Rio Grande, urged the Commission to permit such voluntary negotiation in the first instance before taking action itself.37 The Commission acceded to this request by specifically providing in its orders that the carriers involved were free to negotiate divisions to equalize competitive routes between gateways. Thus at the time of the Commission's decisions, the impact of the new divisions on the Rio Grande's revenues was speculative and uncertain, and voluntary negotiation of subdivisions was available. It could be assumed that the actual reduction in the Rio Grande's revenues might turn out to be no greater than that of the other Mountain-Pacific carriers. In these circumstances, the Commission was not required to rearrange the foundations of a decision that had been reached after long years of proceedings and affected 300 carriers, nor was it required to embark on new hearings to deal with the Rio Grande's claims.
71
It now appears that the impact of the new divisions may in fact be much less severe than the Rio Grande feared. The Midwestern appellants have cited evidence tending to show that the reduction in its revenue is more like $850,000 than $8,500,000. We, of course, do not rso lve this issue. But we do think that the Commission was justified in refusing plenary consideration of the Rio Grande's claims in 1963. If the Commission's new divisions, in connection with the subdivisions that the Rio Grande is able to negotiate with its fellow Mountain-Pacific carriers, do have an impact on the Rio Grande that is unfairly disproportionate or so severe that the Rio Grande's ability to provide service is jeopardized, the Rio Grande may apply to the Commission for relief. There is no reason to suppose that relief will not be promptly forthcoming if the Rio Grande's claim is meritorious.38
72
We conclude as did the Court in the New England Divisions Case:
73
'To consider the weight of the evidence, or the wisdom of the order entered, is beyond our province. * * * But the way is still open to any carrier to apply to the Commission for modification of the order, if it is believed to operate unjustly in any respect.' 261 U.S., at 204, 43 S.Ct., at 278.
VII.
74
We hold that the Commission's original and supplemental orders are valid, and that the District Court erred in setting them aside. When it entered interlocutory injunctions against these orders, the District Court imposed certain protective conditions. They provided that if the Commission's orders were eventually upheld, they would be deemed effective as of July 1, 1963, and March 30, 1964, respectively, and the various carriers would be required to resettle the interim revenues they received in accordance with the divisions established in the orders. Pending appeal of its final decision to this Court, the District Court stayed execution of its judgment permanently setting aside the Commission's order and remanding the case to the Commission; with the consent of the parties, it also provided that these protective conditions should be continued in effect. The Commission has required the carriers involved to adopt certain accounting procedures designed to facilitate the eventual implementation of these protective conditions. Since we now uphold the validity of the Commission's orders, it will be necessary for the District Court, with such assistance from the Commission as seems appropriate, to supervise resettlement of revenues in accordance with its protective conditions. The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.
75
Reversed and remanded.
1
Interstate Commerce Act, § 15(6), 41 Stat. 486, 49 U.S.C. § 15(6). See also § 1(4) of the Act, 54 Stat. 900, 49 U.S.C. § 1(4), which provides, in pertinent part, that: 'It shall be the duty of every * * * common carrier establishing through routes * * * in case of joint rates, fares, or charges, to establish just, reasonable, and equitable divisions thereof, which shall not unduly prefer or prejudice any of such participating carriers.'
2
321 I.C.C. 17, 322 I.C.C. 491.
3
238 F.Supp. 528.
4
Certain Southern carriers did participate in some of the proceedings before the Commission in relation to service they perform in Eastern Territory. And the Southern Governors' Conference and the Southeastern Association of Railroad and Utilities Commissioners, parties in pending litigation involving divisions between Southern and Eastern Territory, filed an amicus brief here.
5
Assume a carriage of 1,000 miles by a Mountain-Pacific road and 500 miles by Midwestern carrier. On a straight mileage basis of dividing the joint rate fare, the Mountain-Pacific carrier would receive two-thirds of the fare and the Midwestern road one-third. Under the system described in the text, the Mountain-Pacific carrier would be credited with 1,500 miles of carriage and the Midwestern line 500. They would accordingly divide the joint fare on a three-fourths-one-fourth basis.
6
In 1929, the Commission undertook another investigation of the Midwestern-Transcontinental divisions. In 1934, on the basis of a record it termed 'most unsatisfactory,' the Commission concluded that 'we are unable to find that the divisions of the transcontinental rates are unlawful.' Divisions of Freight Rates, 203 I.C.C. 299, 335. In the present proceeding, the Commission stated that the weight to be ascribed its 1934 decision was a question 'of little moment * * * in view of changes which have occurred in the intervening years.' 321 I.C.C. 17, 72.
7
Interstate Commerce Act, § 15(6), 41 Stat. 486, 49 U.S.C. § 15(6).
8
The value of the investment base was determined for this purpose by the valuations of railroad property made by the Commission's Bureau of Valuation.
9
Thus, for carriage between the Buffalo-Pittsburgh area to points on or near the Pacific coast, with interchange at Chicago, the Commission provided that the Eastern carrier should receive 22% of the joint fare, leaving the remaining 78% to be divided between carriers providing service west of Chicago.
10
Official-Southwestern Divisions, 287 I.C.C. 553.
11
A few of the 50-mile increments enjoy a factor of 13. See table, n. 13, infra.
12
Some of the 50-mile increments enjoy factors of 14 or 15. See table, n. 13, infra.
13
The scale prescribed by the Commission is as follows:
Scales of Divisional Factors.
Miles One Two Three Miles One Two Three
50 65 72 1,100 318 292 350
100 77 85 1,150 330 304 363
150 89 98 1,200 342 316 376
200 101 75 111 1,250 354 328 389
250 113 87 124 1,300 367 341 404
300 125 99 138 1,350 379 353 417
350 137 111 151 1,400 391 365 430
400 149 123 164 1,450 403 443
450 161 135 177 1,500 415 457
500 174 148 191 1,550 427 470
550 186 160 205 1,600 439 483
600 198 172 218 1,650 451 496
650 210 184 231 1,700 463 509
700 222 196 24 1,750 475 523
750 234 208 257 1,800 487 536
800 246 220 271 1,850 499 549
850 258 232 284 1,900 511 562
900 270 244 297 1,950 523 575
950 282 256 310 2,000 535 589
1,000 294 268 323 2,050 547 602
1,050 306 280 337 2,100 559 615
DEFINITIONS.
Column Three provides the factor for the Mountain-Pacific haul. Column One provides the Midwestern factor on Midwestern-Transcontinental traffic, and Column Two the Midwestern factor for Eastern-Transcontinental traffic. Column Two also applies to subdivisions of carriage in Midwestern Territory.
To illustrate the operation of the scale, assume a carriage of 1,000 miles in Midwestern Territory by a Midwestern railroad and an additional carriage by a Mountain-Pacific road of another 1,000 miles in Mountain-Pacific Territory. Column One gives the Midwestern carrier a factor of 294, and Column Three assigns the Mountain-Pacific railroad a factor of 323. The sum of the factors is 617. The Midwestern carrier would receive 294/617, or 48% of the joint rate, and the Mountain-Pacific carrier 323/617, or 52% of the rate.
14
Certain individual contentions were also made by the Wabash Railroad on petition for reconsideration before the Commission, but they are no longer part of the issues in these cases (hereafter referred to as this case).
15
238 F.Supp., at 539.
16
The nonsettling Midwestern railroads include the eight appellants in No. 8, the Chicago & North Western, the Chicago Great Western, the Chicago, Milwaukee, St. Paul & Pacific, the Green Bay and Western, the Gulf, Mobile & Ohio, the Illinois Central, the Missouri Pacific, and the Soo Line, and 45 of their short-line connections.
17
Also involved are subdivisions in Midwestern Territory between the Midwestern appellants and the settling Midwestern roads. Furthermore, five of the Midwestern appellants operate in a small part of Eastern Territory, comprising southeastern Illinois and a few areas in Indiana. The Eastern divisions are applicable to some of these operations, but the only active issue between the appellants and the Mountain-Pacific roads relating to the divisions is a 15% minimum division prescribed by the Commission and discussed in Part V of this opinion.
18
Beaumont, S.L. & W.R. Co. v. United States, 282 U.S. 74, 51 S.Ct. 1, 75 L.Ed. 221; Baltimore & O.R. Co. v. United States, 298 U.S. 349, 56 S.Ct. 797, 80 L.Ed. 1209; Boston & Maine R. Co. v. United States, 371 U.S. 26, 83 S.Ct. 117, 9 L.Ed.2d 95, affirming D.., 208 F.Supp. 661.
19
E.g., Southwestern-Official Divisions, 234 I.C.C. 135; Divisions of Rates, Official and Southern Territories, 234 I.C.C. 175; Official Western Trunk Line Divisions, 269 I.C.C. 765; Official-Southern Divisions, 287 I.C.C. 497; Official-South-western Divisions, 287 I.C.C. 553, 289 I.C.C. 11; Official-Southern Divisions, 325 I.C.C. 1.
20
We cannot accept the notion that the Administrative Procedure Act, 60 Stat. 237, as amended, 5 U.S.C. §§ 551—559 (1964 ed. Supp. II), overruled these established precedents and imposed a requirement of individual findings upon the Commission.
21
For example, in Official-Southern Divisions, 325 I.C.C. 1, 449, the Commission undertook separate consideration and prescribed special divisions for the Norfolk Southern Railroad after that carrier had disassociated itself from its geographical group and presented evidence on an individual basis.
22
That the Commission based its increase of the Midwestern divisions on costs is further indicated by its rejection, in its original report, of divisional scales proposed by the Mountain-Pacific carriers on the ground that they were based on studies which 'understate the costs of the midwestern lines.'
23
The Eastern divisions do apply to some service by five of the Midwestern appellants in a small part of Eastern Territory, but the only active issue with regard to these divisions is whether the Commission's minimum 15% divisions are justified by the evidence on cost. See n. 17, supra.
24
See n. 8, supra.
25
As the Court observed in ICC v. Hoboken Manufacturers' R. Co., 320 U.S. 368, 381, 64 S.Ct. 159, 166, 88 L.Ed. 107, 'The prescription of divisions where carriers are unable to agree is not a mere partition of property. It is one aspect of the general rate policy which Congress has directed the Commission to establish and administer in the public interest.' See also the New England Divisions Case, 261 U.S. 184, 195, 43 S.Ct. 270, 275, 67 L.Ed. 605.
26
E.g., New England Divisions, 66 I.C.C. 196, 202; Alabama & Mississippi R. Co. v. A., T. & S.F.R. Co., 95 I.C.C. 385, 402 403; Divisions of Freight Rates, 148 I.C.C. 457, 476; Atlantic Coast Line R. Co. v. Arcade & A.R. Co., 194 I.C.C. 729, 752—755, 198 I.C.C. 375, 382—384; Divisions of Freight Rates, 203 I.C.C. 299, 328, 342; Southwestern-Official Divisions, 216 I.C.C. 687, 701—702, 739; Southwestern-Official Divisions, 234 I.C.C. 135, 146, 148; Official-Southern Divisions, 287 I.C.C. 497, 503—504; Official-Southwestern Divisions, 287 I.C.C. 553, 564, 289 I.C.C. 11, 12.
27
Beaumont, S.L. & W.R. Co. v. United States, 282 U.S. 74, 51 S.Ct. 1, 75 L.Ed. 221; Baltimore & O.R. Co. v. United States, 298 U.S. 349, 56 S.Ct. 797, 80 L.Ed. 1209; Boston & Maine R. Co. v. United States, 371 U.S. 26, 83 S.Ct. 117, 9 L.Ed.2d 95, affirming D.C., 208 F.Supp. 661. Cf. State of New York v. United States, 331 U.S. 284, 329, 347—349, 67 S.Ct. 1207, 1231, 1240 1241, 91 L.Ed. 1492.
Chicago, M., St. P. & P.R. Co. v. State of Illinois, 355 U.S. 300, 78 S.Ct. 304, 2 L.Ed.2d 292, relied upon by the appellees, is not apposite. There the Court upheld the District Court in setting aside an order of the Commission made under § 13(4) of the Interstate Commerce Act, 24 Stat. 383, as amended, 49 U.S.C. § 13(4). The Commission had ordered increases in fares on an intrastate passenger run made by the Milwaukee Road, on the ground that existing fares did not cover operating and indirect costs and thus constituted an 'undue, unreasonable, or unjust discrimination' against the Milwaukee Road's interstate operations. The Court held that the Commission erred in comparing the costs and revenues of the particular intrastate service involved instead of all the Milwaukee Road's intrastate operations in Illinois taken together. In a footnote, the Court also stated that it agreed with the District Court's holding that the Commission had not satisfactorily explained how it derived the figure of $77,000 as the commuter service's proper share of indirect costs. 355 U.S., at 309—310, n. 8, 78 S.Ct., at 309—310. It did not hold that in any consideration of revenue need the Commission must make findings in precise dollar amount, but that when it does make precise dollar findings as the basis for raising intrastate fares, it must explain how they were derived.
Moreover, different issues are involved in an intrastate fare case and a rate divisions case, and in the former context this Court has noted that the Commission's exercise of its § 13(4) power must be scrutinized 'with suitable regard to the principle that whenever the federal power is exerted within what would otherwise be the domain of state power, the justification of the exercise of the federal power must clearly appear.' State of Florida v. United States, 282 U.S. 14, 211—212, 51 S.Ct. 119, 124, 75 L.Ed. 291. See also Pub. Service Comm. of Utah v. United States, 356 U.S. 421, 425—426, 78 S.Ct. 796, 798—799, 2 L.Ed.2d 886.
28
Divisions of Freight Rates, 148 I.C.C. 457, 474—475; Atlantic Coast Line R. Co. v. Arcade & A.R. Co., 194 I.C.C. 729, 753, 755; Southwestern-Official Divisions, 216 I.C.C. 687, 698, 708; Florida East Coast R. Co. v. Atlantic Coast Line R. Co., 235 I.C.C. 211, 236—237; Official Western Trunk Line Divisions, 269 I.C.C. 765, 772; Gardner v. Akron, C. & Y.R. Co., 272 I.C.C. 529, 573—577.
29
E.g., Increased Freight Rates, 1948, 276 I.C.C. 9, 35. See also King v. United States, 344 U.S. 254, 263—264, 73 S.Ct. 259, 264—265, 97 L.Ed. 301.
30
Also, when as little as 50% of the traffic on a branch line was in some way related to interterritorial service, the Mountain-Pacific study charged 100% of the expenses of the branch to the cost of the latter service. The Commission's rejection of this technique was not challenged in the District Court.
31
238 F.Supp., at 540.
32
Official-Southern Divisions, 325 I.C.C. 1, 449. The parties in that case specifically requested a cost-constructed scale.
33
See Beaumont, S.L. & W.R. Co. v. United States, D.C., 36 F.2d 789, 799. This Court has never suggested that there was legal infirmity in divisional scales constructed on a basis similar to that employed by the Commission in this case. Beaumont, S.L. & W.R. Co. v. United States, 282 U.S. 74, 51 S.Ct. 1, 75 L.Ed. 221; Baltimore & O.R. Co. v. United States, 298 U.S. 349, 56 S.Ct. 797, 80 L.Ed. 1209; Boston & Maine R. Co. v. United States, 371 U.S. 26, 83 S.Ct. 117, 9 L.Ed.2d 95, affirming D.C., 208 F.Supp. 661.
34
Georgia Public Service Comm. v. United States, 283 U.S. 765, 775, 51 S.Ct. 619, 623, 75 L.Ed. 1397. See also Virginian R. Co. v. United States, 272 U.S. 658, 665—666, 47 S.Ct. 222, 225 226, 71 L.Ed. 463.
35
See nn. 26 and 27, supra, and accompanying text.
36
238 F.Supp., at 539.
37
After the examiners' recommended report, the Mountain-Pacific carriers told the Commission that: 'Any legitimate concern the Midwestern lines may have in any threat to the equalization of divisions over Utah gateways is premature. If any problems arise as to equalization of divisions over those gateways on a fair and equitable basis, they can be considered in the negotiations contemplated in the Recommended Report.'
38
In Official-Southern Divisions, 325 I.C.C. 449, 450, the Commission stated:
'To avoid serious injustice to any carrier, our procedures permit any railroad to be excepted from a group order, in whole or in part, on a proper showing of differing circumstances. Where it is demonstrated by competent and reliable evidence that a carrier's financial or revenue needs situation requires the preservation of its share of the joint rates on the same level as presently existing or at a level different than that to be maintained for the group as a whole, we may provide special individual treatment in order to maintain such carrier as part of the Nation's transportation system without regard to its costs of rendering the service.'
| 89
|
387 U.S. 244
87 S.Ct. 1622
18 L.Ed.2d 749
FEDERAL TRADE COMMISSION, Petitioner,v.UNIVERSAL-RUNDLE CORPORATION.
No. 101.
Argued March 13, 1967.
Decided May 29, 1967.
Robert S. Rifkind, New York City, for petitioner.
Frank C. McAleer, Chicago, Ill., for respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
The question presented by this case is whether the Court of Appeals exceeded its authority as a reviewing court by postponing the operation of a Federal Trade Commission cease-and-desist order against respondent until an investigation should be made of alleged industry-wide violations of the price discrimination provisions of the Clayton Act, § 2, 38 Stat. 730, as amended by the Robinson-Patman Act, 49 Stat. 1526, 15 U.S.C. § 13.
2
Respondent Universal-Rundle produces a full line of china and cast-iron plumbing fixtures which it sells to customers located throughout the United States. In 1960, the Federal Trade Commission issued a complaint charging that for more than three years Universal-Rundle's sales to some of these customers had been made 'at substantially higher prices than the prices at which respondent sells such products of like grade and quality to other purchasers, some of whom are engaged in competition with the less favored purchasers in the resale of such products.' The effect of the discriminations, the complaint alleged, 'may be substantially to lessen competition' in violation of § 2(a) of the Clayton Act, as amended. In its answer, Universal-Rundle denied the essential allegations of the complaint, and, in addition, asserted as affirmative defenses that such price differentials as may have existed were cost justified or were made 'in good faith to meet competition.'
3
After evidentiary hearings, in which Universal-Rundle made no effort to sustain its affirmative defenses, the Commission found that during 1957 Universal-Rundle had offered 'truckload discounts' averaging approximately 10% to all of its customers. Because some of these customers could not afford to purchase in truckload quantities, and thus were unable to avail themselves of the discounts, the Commission held that the offering of the truckload discounts constituted price discrimination within the meaning of § 2(a) of the Clayton Act, as amended. Since some Universal-Rundle customers who were able to purchase in truckload quantities were found to be in competition with customers unable to take advantage of the discounts, the Commission concluded that Universal-Rundle's price discrimination had the anticompetitive effect proscribed by § 2(a).1 Accordingly, it ordered Universal-Rundle to refrain from:
4
'Discriminating in price by selling 'Universal-Rundle' brand or Universal-Rundle manufactured plumbing fixtures * * * of like grade and quality to any purchaser at prices higher than those granted any other purchaser, where such other purchaser competes in fact with the unfavored purchaser in the resale or distribution of such products.'
5
At no time during the four years in which the complaint was pending did Universal-Rundle offer the Commission any information as to its competitors' princing practices or suggest that industry-wide proceedings might be appropriate. But one month after the issuance of the cease-and-desist order, Universal-Rundle petitioned the Commission to stay its cease-and-desist order for a time sufficient 'to investigate and institute whatever proceedings are deemed appropriate by the Commission to correct the industry-wide practice by plumbing fixture manufacturers of granting discounts inpr ices on truckload shipments.' In support of its petition, Universal-Rundle submitted affidavits and documents tending to show: (1) that its principal competitors were offering truckload discounts averaging approximately 18%; (2) that Universal-Rundle's share of the Plumbing fixture market, exclusive of its sales to Sears, Roebuck and Co., was 5.75% whereas the five leading plumbing manufacturing concerns enjoyed market shares of 6 to 3i%;2 and (3) that each of these five competitors had reported profits within the preceding two years whereas Universal-Rundle had sustained substantial losses during each of the preceding three years. In addition, Universal-Rundle submitted an affidavit in which its marketing vice president declared on information and belief that some of Universal-Rundle's competitors were selling to customers who 'may not purchase in truckload quantities.' The vice president further averred:
6
'That based upon his knowledge of the competitive conditions in this industry, if respondent is not permitted to sell plumbing fixtures with a differential in price as are its competitors on truckload and less than truckload quantities, respondent's sales of plumbing fixtures under the 'U/R' brand will be substantially decreased and lost to its competitors, who continue to offer substantial discounts on truckload shipments. And he is of the further belief (that) the Company may suffer further substantial financial losses if it must be the sole plumbing fixture manufacturer under an order to cease and desist.' In a unanimous decision denying the petition for the stay, the Commission held that a general allegation that competitors were offering truckload discounts was not a sufficient basis for instituting industry-wide proceedings or for withholding enforcement of the cease-and-desist order. Noting that respondent's petition appeared to be premised on the contention that truckload discounts had been held to be per se illegal, the Commission wrote, 'There is nothing in our decision to support this contention, * * * nor does the order to cease and desist entered against respondent absolutely prohibit it from granting truckload discounts.' While the granting of such discounts may result in price discriminations having proscribed anticompetitive effects, 'the practice is not necessarily illegal as indicated in respondent's petition.' In each case, it must be determined:
7
'Whether the discount creates a price difference, whether the recipient of such a discount is competing at the same functional level with a customer paying a higher price, whether the customer buying in less than truckload quantities is able to avail itself of the truckload discount, and whether the differential is sufficient in the competitive conditions shown to exist to have the requisite anticompetitive effects.'3
8
'Moreover,' the Commission wrote, 'the fact that respondent may have incurred losses prior to the issuance of the order does not support the contention that enforcement of the order will cause it financial hardship.'4
9
Following denial of its petition for a stay, Universal-Rundle instituted review proceedings in the Court of Appeals for the Seventh Circuit. Without reaching the merits of the petition to set aside the cease-and-desist order, the court below set aside the Commission's order denying the stay and rma nded the cause with instructions that the Commission conduct an industry investigation. 352 F.2d 831 (1965). The court conceded that under Moog Industries v. Federal Trade Commission, 355 U.S. 411, 78 S.Ct. 377, 2 L.Ed.2d 370 (1958), the Federal Trade Commission's discretionary determination to refuse to stay a cease-and-desist order 'should not be overturned in the absence of a patent abuse of discretion.' 355 U.S., at 414, 78 S.Ct. at 380. But it considered that Universal-Rundle's evidentiary offering was sufficient to demonstrate that the refusal to grant the requested stay constituted a patent abuse of discretion. The premises upon which the court below based its conclusion may be briefly restated: (1) '(i)t is apparent,' the court wrote with reference to the evidentiary offering, 'that the Commission has directed its attack against a general practice which is prevalent in the industry'; (2) enforcement would lead to the 'sacrifice' of one of the 'smallest participants' in the industry; and, consequently, (3) approval of the enforcement sanctions would be contrary to the purposes of the Clayton Act since 'the giants in the field would be the real benefactors—not the public.'
10
In Moog Industries v. Federal Trade Commission, supra, we set forth the principles which must govern our review of the action taken by the court below: The decision as to whether to postpone enforcement of a cease-and-desist order 'depends on a variety of factors peculiarly within the expert understanding of the Commission.' 355 U.S., at 413, 78 S.Ct. at 379. Thus, 'although an allegedly illegal practice may appear to be operative throughout an industry, whether such appearances reflect fact' is a question 'that call(s) for discretionary determination by the administrative agency.' Ibid. Because these determinations require the specialized experienced judgment of the Commission, they cannot be overturned by the courts 'in the absence of a patent abuse of discretion.' 355 U.S., at 414, 78 S.Ct. at 380. Consequently, the reviewing court's inquiry is not whether the evidence adduced in support of a petition for a stay tends to establish certain facts, such as that the industry is engaged in allegedly illegal price discrimination practices; rather, the court's review must be limited to determining whether the Commission's evaluation of the merit of the petition for a stay was patently arbitrary and capricious.
11
Viewed in the light of these principles, the decision below must be reversed. The evidence which Universal-Rundle offered in its petition for a stay is so inconclusive that it cannot be said that the Commission's evaluation of the evidence, and its consequent refusal to grant the stay, constituted a patent abuse of discretion. Indeed, Universal-Rundle's evidence does not even support the improper de novo findings which formed the basis for the Court of Appeals' decision. Universal-Rundle's truckload discounts were held to be illegal only because the corporation sold fixtures to one group of customers who were unable to purchase in truckload quantities while simultaneously selling fixtures at a discount to another group of customers who were in competition with the nonfavored group. Since the evidence presented in the petition for a stay did not tend to show that the discounts offered by Universal-Rundle's competitors had such an anticompetitive effect, there was no basis for a conclusion that the practice held illegal by the Commission was prevalent throughout the plumbing industry. Similarly, the unsupported speculation of Universal-Rundle's vice president as to the pecuniary effect of enforcement of the cease-and-desist order does not provide a sufficient basis for a finding that Universal-Rundle would be 'sacrificed' or even that it would suffer substantial financial injury. It follows that Universal-Rundle has failed to demonstrate that enforcement would be contrary to the purposes of the Clayton Act.
12
We note that even if a petitoner succeeded in demonstrating to the Commission that all of its competitors were engaged in illegal price-discrimination practices identical to its own, and that enforcement of a cease-and-desist order might cause it substantial financial injury, the Commission would not necessarily be obliged to withhold enforcement of the order. As we stated in Moog Industries, 355 U.S., at 413, 78 S.Ct. at 379:
13
'It is clearly within the special competence of the Commission to appraise the adverse effect on competition that might result from postponing a particular order prohibiting continued violations of the law. Furthermore, the Commission alone is empowered to develop that enforcement policy best calculated to achieve the ends contemplated by Congress and to allocate its available funds and personnel in such a way as to execute its policy efficiently and economically.'
14
On the other hand, as the Moog Industries case also indicates, the Federal Trade Commission does not have unbridled power to institute proceedings which will arbitrarily destroy one of many law violators in an industry. This is not such a case. The Commission's refusal to withhold enforcement of the cease-and-desist order against respondent was based upon a reasonable evaluation of the merits of the petition for a stay; thus it was not within the scope of the reviewing authority of the court below to overthrow the Commission's determination. Consequently, we reverse the judgment below, set aside the stay, and remand the cause for further proceedings consistent with this opinion.5 It is so ordered.
15
Judgment reversed, stay set aside, and cause remanded.
1
The Commission's opinion is reported in Trade Reg. Rep., 1963—1965 Transfer Binder, 16,948.
2
According to respondent's petition for a stay, the shares enjoyed by its principal competitors were:
Percent
American Radiator & Standard Sanitary Corp.. 32
Kohler Co...................... 15
Eljer Division of the Murray Corp. of America 10
Crane Co........................ 9
Briggs Manufacturing Co......... 6
Rheem Manufacturing Co.......... 5
3
The Commission further noted that 'even if a prima facie violation of Section 2(a) is established, the seller may in each case interpose the statutory defenses to justify the discrimination.' Trade Reg. Rep., 1963—1965 Transfer Binder, 16,998, at 22,070.
4
Ibid.
5
We are informed by the parties that after the Commission's refusal to grant the stay, the respondent presented some evidence to the Commission staff which was relevant to the anticompetitive effects of the discounts offered by two of its competitors. Apparently relying on this evidence, the court below ruled that the Commission was obliged to conduct its own industry investigation and that the pendency of a Department of Justice antitrust investigation of the industry did not relieve the Commission of this responsibility. Since the post-proceeding evidence was not properly before the court below on a petition for review and is not in the record here, we do not reach, and the court below should not have reached, the questions of whether an industry investigation was necessitated by the additional evidence or whether such an investigation would be unnecessary in light of the Department of Justice investigation.
| 89
|
387 U.S. 253
87 S.Ct. 1660
18 L.Ed.2d 757
Beys AFROYIM, Petitioner,v.Dean RUSK, Secretary of State.
No. 456.
Argued Feb. 20, 1967.
Decided May 29, 1967.
Edward J. Ennis, New York City, for petitioner.
Charles Gordon, Washington, D.C., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
Petitioner, born in Poland in 1893, immigrated to this country in 1912 and became a naturalized American citizen in 1926. He went to Israel in 1950, and in 1951 he voluntarily voted in an election for the Israeli Knesset, the legislative body of Israel. In 1960, when he applied for renewal of his United States passport, the Department of State refused to grant it on the sole ground that he had lost his American citizenship by virtue of § 401(e) of the Nationality Act of 1940 which provides that a United States citizen shall 'lose' his citizenship if he votes 'in a political election in a foreign state.'1 Petitioner then brought this declaratory judgment action in federal district court alleging that § 401(e) violates both the Due Process Clause of the Fifth Amendment and § 1, cl. 1, of the Fourteenth Amendment2 which grants American citizenship to persons like petitioner. Because neither the Fourteenth Amendment nor any other provision of the Constitution expressly grants Congress the power to take away that citizenship once it has been acquired, petitioner contended that the only way he could lose his citizenship was by his own voluntary renunciation of it. Since the Government took the position that § 401(e) empowers it to terminate citizenship without the citizen's voluntary renunciation, petitioner argued that this section is prohibited by the Constitution. The District Court and the Court of Appeals, rejecting this argument, held that Congress has constitutional authority forcibly to take away citizenship for voting in a foreign country based on its implied power to regulate foreign affairs. Consequently, petitioner was held to have lost his American citizenship regardless of his intention not to give it up. This is precisely what this Court held in Perez v. Brownell, 356 U.S. 44, 78 S.Ct. 568, 2 L.Ed.2d 603.
2
Petitioner, relying on the same contentions about voluntary renunciation of citizenship which this Court rejected in upholding § 401(e) in Perez, urges us to reconsider that case, adopt the view of the minority there and overrule it. That case, decided by a 5—4 vote almost 10 years ago, has been a source of controversy and confusion ever since, as was emphatically recognized in the opinions of all the judges who participated in this case below.3 Moreover, in the other cases decided with4 and since5 Perez, this Court has consistently invalidated on a case-by-case basis various other statutory sections providing for involuntary expatriation. It has done so on various grounds and has refused to hold that citizens can be expatriated without their voluntary renunciation of citizenship. These cases, as well as many commentators,6 have cast great doubt upon the soundness of Perez. Under these circumstances, we granted certiorari to reconsider it, 385 U.S. 917, 87 S.Ct. 232, 17 L.Ed.2d 142. In view of the many recent opinions and dissents comprehensively discussing all the issues involved,7 we deem it unnecessary to treat this subject at great length.
3
The fundamental issue before this Court here, as it was in Perez, is whether Congress can consistently with the Fourteenth Amendment enact a law stripping an American of his citizenship which he has never voluntarily renounced or given up. The majority in Perez held that Congress could do this because withdrawal of citizenship is 'reasonably calculated to effect the end that is within the power of Congress to achieve'. 356 U.S., at 60, 78 S.Ct., at 577. That conclusion was reached by this chain of reasoning: Congress has an implied power to deal with foreign affairs as an indispensable attribute of sovereignty; this implied power, plus the Necessary and Proper Clause, empowers Congress to regulate voting by American citizens in foreign elections; involuntary expatriation is within the 'ample scope' of 'appropriate modes' Congress can adopt to effectuate its general regulatory power. Id., 356 U.S., at 57—60, 78 S.Ct., at 575—577. Then, upon summarily concluding that 'there is nothing in the * * * Fourteenth Amendment to warrant drawing from it a restriction upon the power otherwise possessed by Congress to withdraw citizenship,' id., at 58, n. 3, 78 S.Ct., at 576, the majority specifically rejected the 'notion that the power of Congress to terminate citizenship depends upon the citizen's assent,' id., at 61, 78 S.Ct., at 578.
4
First we reject the idea xp ressed in Perez that, aside from the Fourteenth Amendment, Congress has any general power, express or implied, to take away an American citizen's citizenship without his assent. This power cannot, as Perez indicated, be sustained as an implied attribute of sovereignty possessed by all nations. Other nations are governed by their own constitutions, if any, and we can draw no support from theirs. In our country the people are sovereign and the Government cannot sever its relationship to the people by taking away their citizenship. Our Constitution governs us and we must never forget that our Constitution limits the Government to those powers specifically granted or those that are necessary and proper to carry out the specifically granted ones. The Constitution of course, grants Congress no express power to strip people of their citizenship, whether in the exercise of the implied power to regulate foreign affairs or in the exercise of any specifically granted power. And even before the adoption of the Fourteenth Amendment, views were expressed in Congress and by this Court that under the Constitution the Government was granted no power, even under its express power to pass a uniform rule of naturalization, to determine what conduct should and should not result in the loss of citizenship. On three occasions, in 1794, 1797, and 1818, Congress considered and rejected proposals to enact laws which would describe certain conduct as resulting in expatriation.8 On each occasion Congress was considering bills that were concerned with recognizing the right of voluntary expatriation and with providing some means of exercising that right. In 1795 and 1797, many members of Congress still adhered to the English doctrine of perpetual allegiance and doubted whether a citizen could even voluntarily renounce his citizenship.9 By 1818, however, almost no one doubted the existence of the right of voluntary expatriation, but several judicial decisions had indicated that the right could not be exercised by the citizen without the consent of the Federal Government in the form of enabling legislation.10 Therefore, a bill was introduced to provide that a person could voluntarily relinquish his citizenship by declaring such relinquishment in writing before a district court and then departing from the country.11 The opponents of the bill argued that Congress had no constitutional authority, either express or implied, under either the Naturalization Clause or the Necessary and Proper Clause, to provide that a certain act would constitute expatriation.12 They pointed to a proposed Thirteenth Amendment, subsequently not ratified, which would have provided that a person would lose his citizenship by accepting an office or emolument from a foreign government.13 Congressman Anderson of Kentucky argued:
5
'The introduction of this article declares the opinion * * * that Congress could not declare the acts which should amount to a renunciation of citizenship; otherwise there would have been no necessity for this last resort. When it was settled that Congress could not declare that the acceptance of a pension or an office from a foreign Emperor amounted to a disfranchisement of the citizen, it must surely be conceded that they could not declare that any other act did. The cases to which their powers before this amendment confessedly did not extend, are very strong, and induce a belief that Congress could not in any case declare the acts which should cause 'a person to cease to be a citizen.' The want of power in a case like this, where the individual has given the strongest evidence of attachment to a foreign potentate and an entire renunciation of the feelings and principles of an American citizen, certainly establishes the absence of all power to pass a bill like the present one. Although the intention with which it was introduced and the title of the bill declare that it is to insure and foster the right of the citizen, the direct and inevitable effect of the bill, is an assumption of power by Congress to declare that certain acts when committed shall amount to a renunciation of citizenship.' 31 Annals of Cong. 1038—1039 (1818).
6
Congressman Pindall of Virginia rejected the notion, later accepted by the majority in Perez, that the nature of sovereignty gives Congress a right to expatriate citizens:
7
'(A)llegiance imports an obligation on the citizen or subject, the correlative right to which resides in the sovereign power: allegiance in this country is not due to Congress, but to the people, with whom the sovereign power is found; it is, therefore by the people only that any alteration can be made of the existing institutions with respect to allegiance.' Id., at 1045.
8
Although he recognized that the bill merely sought to provide a means of voluntary expatriation, Congressman Lowndes of South Carolina argued:
9
'But, if the Constitution had intended to give to Congress so delicate a power, it would have been expressly granted. That it was a delicate power, and ought not to be loosely inferred, * * * appeared in a strong light, when it was said, and could not be denied, that to determine the manner in which a citizen may relinquish his right of citizenship, is equivalent to determining how he shall be divested of that right. The effect of assuming the exercise of these powers will be, that by acts of Congress a man may not only be released from all the liabilities, but from all the privileges of a citizen. If you pass this bill, * * * you have only one step further to go, and say that such and such acts shall be considered as presumption of the intention of the citizen to expatriate, and thus take from him the privileges of a citizen. * * * (Q) uestions affecting the right of the citizen were questions to be regulated, not by the laws of the General or State Governments, but by Constitutional provisions. If there was anything essential to our notion of a Constitution, * * * it was this: that while the employment of the physical force of the country is in the hands of the Legislature, those rules which determine what constitutes the rights of the citizen, shall be a matter of Constitutional provision.' Id., at 1050—1051.
10
The bill was finally defeated.14 It is in this setting that six years later, in Osborn v. Bank of the United States, 9 Wheat. 738, 827, 6 L.Ed. 204, this Court, speaking through Chief Justice Marshall, declared in what appears to be a mature and well-considered dictum that Congress, once a person becomes a citizen, cannot deprive him of that status:
11
'(The naturalized citizen) becomes a member of the society, possessing all the rights of a native citizen, and standing, in view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual.'
12
Although these legislative and judicial statements may be regarded as inconclusive and must be considered in the historical context in which they were made,15 any doubt as to whether prior to the passage of the Fourteenth Amendment Congress had the power to deprive a person against his will of citizenship once obtained should have been removed by the unequivocal terms of the Amendment itself. It provides its own constitutional rule in language calculated completely to control the status of citizenship: 'All persons born or naturalized in the United States * * * are citizens of the United States * * *.' There is no indication in these words of a fleeting citizenship, good at the moment it is acquired but subject to destruction by the Government at any time. Rather the Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other governmental unit.
13
It is true that the chief interest of the people in giving permanence and security to citizenship in the Fourteenth Amendment was the desire to protect Negroes. The Dred Scott decision, Dred Scott v. Sandford, 19 How. 393, 15 L.Ed. 691, had shortly before greatly disturbed many people about the status of Negro citizenship. But the Civil Rights Act of 1866, 14 Stat. 27, had already attempted to confer citizenship on all persons born or naturalized in the United States. Nevertheless, when the Fourteenth Amendment passed the House without containing any definition of citizenship, the sponsors of the Amendment in the Senate insisted on inserting a constitutional definition and grant of citizenship. They expressed fears that the citizenship so recently conferred on Negroes by the Civil Rights Act could be just as easily take away from them by subsequent Congresses, and it was to provide an insuperable obstacle against every governmental effort to strip Negroes of their newly acquired citizenship that the first clause was added to the Fourteenth Amendment.16 Senator Howard, who sponsored the Amendment in the Senate, thus explained the purpose of the clause:
14
'It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. * * * We desired to put this question of citizenship and the rights of citizens * * * under the civil rights bill beyond the legislative power * * *.' Cong. Globe, 39th Cong., 1st Sess., 2890, 2896 (1866).
15
This undeniable purpose of the Fourteenth Amendment to make citizenship of Negroes permanent and secure would be frustrated by holding that the Government can rob a citizen of his citizenship without his consent by simply proceeding to act under an implied general power to regulate foreign affairs o § ome other power generally granted. Though the framers of the Amendment were not particularly concerned with the problem of expatriation, it seems undeniable from the language they used that they wanted to put citizenship beyond the power of any governmental unit to destroy. In 1868, two years after the Fourteenth Amendment had been proposed, Congress specifically considered the subject of expatriation. Several bills were introduced to impose involuntary expatriation on citizens who committed certain acts.17 With little discussion, these proposals were defeated. Other bills, like the one proposed but defeated in 1818, provided merely a means by which the citizen could himself voluntarily renounce his citizenship.18 Representative Van Trump of Ohio, who proposed such a bill, vehemently denied in supporting it that his measure would make the Government 'a party to the act dissolving the tie between the citizen and his country * * * where the statute simply prescribes the manner in which the citizen shall proceed to perpetuate the evidence of his intention, or election, to renounce his citizenship by expatriation.' Cong. Globe, 40th Cong., 2d Sess., 1804 (1868). He insisted that 'inasmuch as the act of expatriation depends almost entirely upon a question of intention on the part of the citizen,' id., at 1801, 'the true question is, that not only the right of expatriation, but the whole power of its exercise, rests solely and exclusively in the will of the individual,' id., at 1804.19 In strongest of terms, not contradicted by any during the debates, he concluded:
16
'To enforce expatriation or exile against a citizen without his consent is not a power anywhere belonging to this Government. No conservativeminded statesman, no intelligent legislator, no sound lawyer has ever maintained any such power in any branch of the Government. The lawless precedents created in the delirium of war * * * of sending men by force into exile, as a punishment for political opinion, were violations of this great law * * * of the Constitution. * * * The men who debated the question in 1818 failed to see the true distinction. * * * They failed to comprehend that it is not the Government, but that it is the individual, who has the right and the only power of expatriation. * * * (I)t belongs and appertains to the citizen and not to the Government; and it is the evidence of his election to exercise his right, and not the power to control either the election or the right itself, which is the legitimate subject matter of legislation. There has been, and there can be, no legislation under our Constitution to control in any manner the right itself.' Ibid.
17
But even Van Trump's proposal, which went no further than to provide a means of evidencing a citizen's intent to renounce his citizenship, was defeated.20 The Act, as finally passed, merely recognized the 'right of expatriation' as an inherent right of all people.21
18
The entire legislative history of the 1868 Act makes it abundantly clear that there was a strong feeling in the Congress that the only way the citizenship it conferred could be lost was by the voluntary renunciation or abandonment by the citizen himself. And this was the unequivocal statement of the Court in the case of United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890. The issues in that case were whether a person born in the United States to Chinese aliens was a citizen of the United States and whether, nevertheless, he could be excluded under the Chinese Exclusion Act, 22 Stat. 58. The Court first held that within the terms of the Fourteenth Amendment, Wong Kim Ark was a citizen of the United States, and then pointed out that though he might 'renounce this citizenship, and become a citizen of * * * any other country,' he had never done so. Id., at 704 705, 18 S.Ct. at 478. The Court then held22 that Congress could not do anything to abridge or affect his citizenship conferred by the Fourteenth Amendment. Quoting Chief Justice Marshall's well-considered and oft-repeated dictum in Osborn to the effect that Congress under the power of naturalization has 'a power to confer citizenship, not a power to take it away,' the Court said:
19
'Congress having no power to abridge the rights conferred by the constitution upon those who have become naturalized citizens by virtue of acts of congress, a fortiori no act * * * of congress * * * can affect citizenship acquired as a birthright by virtue of the constitution itself * * *. The fourteenth amendment, while it leaves the power, where it was before, in congress, to regulate naturalization, has conferred no authority upon congress to restrict the effect of birth, declared by the constitution to constitute a sufficient and complete right to citizenship.' Id., at 703, 18 S.Ct., at 477.
20
To uphold Congress' power to take away a man's citizenship because he voted in a foreign election in violation of § 401(e) would be equivalent to holding that Congress has the power to 'abridge,' 'affect,' 'restrict the effect of,' and 'take * * * away' citizenship. Because the Fourteenth Amendment prevents Congress from doing any of these things, we agree with the Chief Justice's dissent in the Perez case that the Government is without power to rob a citizen of his citizenship under § 401(e).23
21
Because the legislative history of the Fourteenth Amendment and of the expatriation proposals which preceded and followed it, like most other legislative history, contains many statements from which conflicting inferences can be drawn, our holding might be unwarranted if it rested entirely or principally upon that legislative history. But it does not. Our holding we think is the only one that can stand in view of the language and the purpose of the Fourteenth Amendment, and our construction of that Amendment, we believe, comports more nearly than Perez with the principles of liberty and equal justice to all that the entire Fourteenth Amendment was adopted to guarantee. Citizenship is no light trifle to be jeopardized any moment Congress decides to do so under the name of one of its general or implied grants of power. In some instances, loss of citizenship can mean that a man is left without the protection of citizenship in any country in the world—as a man without a country. Citizenship in this Nation is a part of a cooperative affair. Its citizenry is the country and the country is its citizenry. The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship. We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.
22
Perez v. Brownell is overruled. The judgment is reversed.
23
Reversed.
24
Mr. Justice HARLAN, whom Mr. Justice CLARK, Mr. Justice STEWART, and Mr. Justice WHITE join, dissenting.
25
Almost 10 years ago, in Perez v. Brownell, 356 U.S. 44, 78 S.Ct. 568, 2 L.Ed.2d 603, the Court upheld the constitutionality of § 401(e) of the Nationality Act of 1940, 54 Stat. 116. The section deprives of his nationality any citizen who has voted in a foreign political election. The Court reasoned that Congress derived from its power to regulate foreign affairs authority to expatriate any citizen who intentionally commits acts which may be prejudicial to the foreign relations of the United States, and which reasonably may be deemed to indicate a dilution of his allegiance to this country. Congress, it was held, could appropriately consider purposeful voting in a foreign political election to be such an act.
26
The Court today overrules Perez, and declares § 401(e) unconstitutional by a remarkable process of circumlocution. First, the Court fails almost entirely to dispute the reasoning in Perez; it is essentially content with the conclusory and quite unsubstantial assertion that Congress is without 'any general power, express or implied,' to expatriate a citizen 'without his assent.'1 Next, the Court embarks upon a lengthy, albeit incomplete, survey of the historical background of the congressional power at stake here, and yet, at the end, concedes that the history is susceptible of 'conflicting inferences.' The Court acknowledges that its conclusions might not be warranted by that history alone, and disclaims that the decision today relies, even 'principally,' upon it. Finally, the Court declares that its result is bottomed upon the 'language and the purpose' of the Citizenship Clause of the Fourteenth Amendment; in explanation, the Court offers only the terms of the clause itself, the contention that any other result would be 'completely incogr uous,' and the essentially arcane observation that the 'citizenry is the country and the country is its citizenry.'
27
I can find nothing in this extraordinary series of circumventions which permits, still less compels, the imposition of this constitutional constraints upon the authority of Congress. I must respectfully dissent.
28
There is no need here to rehearse Mr. Justice Frankfurter's opinion for the Court in Perez; it then proved and still proves to my satisfaction that § 401(e) is within the power of Congress.2 It suffices simply to supplement Perez with an examination of the historical evidence which the Court in part recites, and which provides the only apparent basis for many of the Court's conclusions. As will be seen, the available historical evidence is not only inadequate to support the Court's abandonment of Perez, but, with due regard for the restraints that should surround the judicial invalidation of an Act of Congress, even seems to confirm Perez' soundness.
I.
29
Not much evidence is available from the period prior to the adoption of the Fourteenth Amendment through which the then-prevailing attitudes on these constitutional questions can now be determined. The questions pertinent here were only tangentially debated; controversy centered instead upon the wider issues of whether a citizen might under any circumstances renounce his citizenship, and, if he might, whether that right should be conditioned upon any formal prerequisites.3 Even the discussion of these issues was seriously clouded by the widely accepted view that authority to regulate the incidents of citizenship had been retained, at least in part, by the several States.4 It should therefore be remembered that the evidence which is now available may not necessarily represent any carefully considered, still less prevailing, viewpoint upon the pressent issues.
30
Measured even within these limitations, the Court's evidence for this period is remarkably inconclusive; the Court relies simply upon the rejection by Congress of legislation proposed in 1794, 1797, and 1818, and upon an isolated dictum from the opinion of Chief Justice Marshall in Osborn b. Bank of the United States, 9 Wheat. 738, 6 L.Ed. 204. This, as will appear, is entirely inadequate to support the Court's conclusion, particularly in light of other and more pertinent evidence which the Court does not notice.
31
The expatriation of unwilling citizens was apparently first discussed in the lengthy congressional debates of 1794 and 1795, which culminated eventually in the Uniform Naturalization Act of 1795.5 1 Stat. 414. Little contained in those debates is pertinent here. The present question was considered only in connection with an amendment, offered by Congressman Hillhouse of Connecticut which provided that any American who acquired a foreign citizenship should not subsequently be permitted to repatriate in the United States. Although this obscure proposal scarcely seems relevant to the present issues, it was apparently understood at least by some members to require the automatic expatriation of an American who acquired a second citizenship. Its discussion in the House consumed substantially less than one day, and of this debate only the views of two Congressmen, other than Hillhouse, were recorded by the Annals.6 Murray of Maryland, for reasons immaterial here, supported the proposal. In response, Baldwin of Georgia urged that foreign citizenship was often conferred only as a mark of esteem, and that it would be unfair to deprive of his domestic citizenship an American honored in this fashion. There is no indication that any member believed the proposal to be forbidden by the Constitution. The measure was rejected by the House without a reported vote, and no analogous proposal was offered in the Senate. Insofar as this brief exchange is pertinent here, it establishes at most that two or more members believed the proposal both constitutional and desirable, and that some larger number determined, for reasons that are utterly obscure, that it should not be adopted.
32
The Court next relies upon the rejection of proposed legislation in 1797. The bill there at issue would have forbidden the entry of American citizens into the service of any foreign state in time of war; its sixth section included machinery by which a citizen might voluntarily expatriate himself.7 The bill contained nothing which would have expatriated unwilling citizens, and the debates do not include any pronounceen ts relevant to that issue. It is difficult to see how the failure of that bill might be probative here.
33
The debates in 1817 and 1818, upon which the Court so heavily relies, are scarcely more revealing. Debate centered upon a brief bill8 which provided merely that any citizen who wished to renounce his citizenship must first declare his intention in open court, and thereafter depart the United States. His citizenship would have terminated at the moment of his renunciation. The bill was debated only in the House; no proposal permitting the involuntary expatriation of any citizen was made or considered there or in the Senate. Nonetheless, the Court selects portions of statements made by three individual Congressmen, who apparently denied that Congress had authority to enact legislation to deprive unwilling citizens of their citizenship. These brief dicta are, by the most generous standard, inadequate to warrant the Court's broad constitutional conclusion. Moreover, it must be observed that they were in great part deductions from constitutional premises which have subsequently been entirely abandoned. They stemmed principally from the Jeffersonian contention that allegiance is owed by a citizen first to his State, and only through the State to the Federal Government. The spokesmen upon whom the Court now relies supposed that Congress was without authority to dissolve citizenship, since 'we have no control' over 'allegiance to the State * * *.'9 The bill's opponents urged that 'The relation to the State government was the basis of the relation to the General Government, and therefore, as long as a man continues a citizen of a State, he must be considered a citizen of the United States.'10 Any statute, it was thought, which dissolved federal citizenship while a man remained a citizen of a State 'would be inoperative.'11 Surely the Court does not revive this entirely discredited doctrine; and yet so long as it does not, it is difficult to see that any significant support for the ruling made today may be derived from the statements on which the Court relies. To sever the statements from their constitutional premises, as the Court has apparently done, is to transform the meaning these expressions were intended to convey.
34
Finally, it must be remembered that these were merely the views of three Congressmen; nothing in the debates indicates that their constitutional doubts were shared by any substantial number of the other 67 members who eventually opposed the bill. They were plainly not accepted by the 58 members who voted in the bill's favor. The bill's opponents repeatedly urged that, whatever its constitutional validity, the bill was imprudent and undesirable. Pindall of Virginia, for example, asserted that a citizen who employed its provisions would have 'motives of idleness or criminality,'12 and that the bill would thus cause 'much evil.'13 McLane of Delaware feared that citizens would use the bill to escape service in the armed forces in time of war; he warned that the bill would, moreover, weaken 'the love of country, so necessary to individual happiness and national prosperity.'14 He even urged that 'The commission of treason, and the objects of plunder and spoil, are equally legalized by this bill.'15 Lowndes of South Carolina cautioned the House that difficulties might again arise with foreign governments over the rights of seamen if the bill were passed.16 Given these vigorous and repeated arguments, it is quite impossible to assume, as the Court apparently has, that any substantial portion of the House was motivated wholly, or even in pat, by any particular set of constitutional assumptions. These three statements must instead be taken as representative only of the beliefs of three members, premised chiefly upon constitutional doctrines which have subsequently been rejected, and expressed in a debate in which the present issues were not directly involved.
35
The last piece of evidenc upon which the Court relies for this period is a brief obiter dictum from the lengthy opinion for the Court in Osborn v. Bank of the United States, 9 Wheat. 738, 827, 6 L.Ed. 204, written by Mr. Chief Justice Marshall. This use of the dictum is entirely unpersuasive, for its terms and context make quite plain that it cannot have been intended to reach the questions presented here. The central issue before the Court in Osborn was the right of the bank to bring its suit for equitable relief in the courts of the United States. In argument, counsel for Osborn had asserted that although the bank had been created by the laws of the United States, it dis not necessarily follow that any cause involving the bank had arisen under those laws. Counsel urged by analogy that the naturalization of an alien might as readily be said to confer upon the new citizen a right to bring all his actions in the federal courts. Id., at 813—814, 6 L.Ed. 204. Not surprisingly, the Court rejected the analogy, and remarked that an act of naturalization 'does not proceed to give, to regulate, or to prescribe his capacities,' since the Constitution demands that a naturalized citizen must in all respects stand 'on the footing of a native.' Id., at 827, 6 L.Ed. 204. The Court plainly meant no more than that counsel's analogy is broken by Congress' inability to offer a naturalized citizen rights or capacities which differ in any particular from those given to a native-born citizen by birth. Mr. Justice Johnson's discussion of the analogy in dissent confirms the Court's purpose. Id., at 875—876, 6 L.Ed. 204.
36
Any wider meaning, so as to reach the questions here, wrenches the dictum from its context, and attributes to the Court an observation extraneous even to the analogy beore it. Moreover, the construction given to the dictum by the Court today requires the assumption that the Court in Osborn meant to decide an issue which had to that moment scarcely been debated, to which counsel in Osborn had never referred, and upon which no case had ever reached the Court. All this, it must be recalled, is in an area of the law in which the Court had steadfastly avoided unnecessary comment. See e.g. M'Ilvaine v. Coxe's Lessee, 4 Cranch 209, 212 213, 2 L.Ed. 598; The Santissima Trinidad, 7 Wheat. 283, 347—348, 5 L.Ed. 454. By any standard, the dictum cannot provide material assistance to the Court's position in the present case.17
37
Before turning to the evidence from this period which has been overlooked by the Court, attention must be given an incident to which the Court refers, but upon which it apparently places relatively little reliance. In 1810, a proposed thirteenth amendment to the Constitution was introduced into the Senate by Senator Reed of Maryland; the amendment, as subsequently modified, provided that any citizen who accepted a title of nobility, pension, or emolument from a foreign state, or who married a person of royal blood, should 'cease to be a citizen of the United States.'18 The proposed amendment was, in a modified form, accepted by both Houses, and subsequently obtained the approval of all but one of the requisite number of States.19 I have found nothing which indicates with any certainty why such a provision should then have been thought necessary,20 but two reasons suggest themselves for the use of a constitutional amendment. First, the provisions may have been intended in part as a sanction for Art. I, § 9, cl. 8;21 it may therefore have been thought more appropriate that it be placed within the Constitution itself. Second, a student of expatriation issues in this period has dismissed the preference for an amendment with the explanation that 'the dominant Jeffersonian view held that citizenship was within the jurisdiction of the states; a statute would thus have been a federal usurpation of state power.'22 This second explanation is fully substantiated by the debate in 1818; the statements from that debate set out in the opinion for the Court were, as I have noted, bottomed on the reasoning that since allegiance given by an individual to a State could not be dissolved by Congress, a federal statute could not regulate expatriation. It surely follows that this 'obscure enterprise'23 in 1810, motivated by now discredited constitutional premises, cannot offer any significant guidance for solution of the important issues now before us.
38
The most pertinent evidence from this period upon these questions has been virtually overlooked by the Court. Twice in the two years immediately prior to its passage of the Fourteenth Amendment, Congress exercised the very authority which the Court now suggests that it should have recognized was entirely lacking. In each case, a bill was debated and adopted by both Houses which included provisions to expatriate unwilling citizens.
39
In the spring and summer of 1864, both Houses debated intensively the Wade-Davis bill to provide reconstruction governments for the States which had seceded to form the Confederacy. Among the bill's provisions was § 14, by which 'every person who shall hereafter hold or exercise any office * * * in the rebel service * * * is hereby declared not to be a citizen of the United States.'24 Much of the debate upon the bll did not, of course, center on the expatriation provision, although it certainly did not escape critical attention.25 Nonetheless, I have not found any indication in the debates in either House that it was supposed that Congress was without authority to deprive an unwilling citizen of his citizenship. The bill was not signed by President Lincoln before the adjournment of Congress, and thus failed to become law, but a subsequent statement issued by Lincoln makes quite plain that he was not troubled by any doubts of the constitutionality of § 14.26 Passage of the Wade-Davis bill of itself 'suffices to destroy the notion that the men who drafted the Fourteenth Amendment felt that citizenship was an 'absolute."27
40
Twelve months later, and less than a year before its passage of the Fourteenth Amendment, Congress adopted a second measure which included provisions that permitted the expatriation of unwilling citizens. Section 21 of the Enrollment Act of 1865 provided that deserters from the military service of the United States 'shall be deemed and taken to have voluntarily relinquished and forfeited their rights of citizenship and their rights to become citizens * * *.'28 The same section extended these disabilities to persons who departed the United States with intent to avoid 'draft into the military or naval service * * *.'29 The bitterness of war did not cause Congress here to neglect the requirements of the Constitution; for it was urged in both Houses that § 21 as written was ex post facto, and thus was constitutionally impermissible.30 Significantly, however, it was never suggested in either debate that expatriation without a citizen's consent lay beyond Congress' authority. Members of both Houses had apparently examined intensively the section's constitutional validity, and yet had been undisturbed by the matters upon which the Court now relies.
41
Some doubt, based on the phrase 'rights of citizenship,' has since been expressed31 that § 21 was intended to require any more tha d isfranchisement, but this is, for several reasons, unconvincing. First, § 21 also explicitly provided that persons subject to its provisions should not thereafter exercise various 'rights of citizens';32 if the section had not been intended to cause expatriation, it is difficult to see why these additional provisions would have been thought necessary. Second, the executive authorities of the United States afterwards consistently construed the section as causing expatriation.33 Third, the section was apparently understood by various courts to result in expatriation; in particular, Mr. Justice Strong, while a member of the Supreme Court of Pennsylvania, construed the section to cause a 'forfeiture of citizenship,' Huber v. Reily, 53 Pa. 112, 118, and although this point was not expressly reached, his general understanding of the statute was approved by this Court in Kurtz v. Moffitt, 115 U.S. 487, 501, 6 S.Ct. 148, 153, 29 L.Ed. 458. Finally, Congress in 1867 approved an exemption from the section's provisions for those who had deserted after the termination of general hostilities, and the statute as adopted specifically described the disability from which exemption was given as a 'loss of his citizenship.' 15 Stat. 14. The same choice of phrase occurs in the pertinent debates.34
42
It thus appears that Congress had twice, immediately before its passage of the Fourteenth Amendment, unequivocally affirmed its belief that it had authority to expatriate an unwilling citizen.
43
The pertinent evidence for the period prior to the adoption of the Fourteenth Amendment can therefore be summarized as follows. The Court's conclusion today is supported only by the statements, associated at least in part with a now abandoned view of citizenship, of three individual Congressmen, and by the ambiguous and inapposite dictum from Osborn. Inconsistent with the Court's position are statements from individual Congressmen in 1794, and Congress' passage in 1864 and 1865 of legislation which expressly authorized the expatriation of unwilling citizens. It may be that legislation adopted in the heat of war should be discounted in part by its origins, but, even if this is done, it is surely plain that the Court's conclusion is entirely unwarranted by the available historical evidence for the period prior to the passage of the Fourteenth Amendment. The evidence suggests, to the contrary, that Congress in 1865 understood that it had authority, at least in some circumstances, to deprive a citizen of his nationality.
II.
44
The evidence with which the Court supports its thesis that the Citizenship Clause of the Fourteenth Amendment was intended to lay at rest any doubts of Congress' inability to expatriate without the citizen's consent is no more persuasive. The evidence consists almost exclusively of two brief and general quotations from Howard of Michigan, the sponsor of the Citizenship Clause in the Senate, and of a statement made in a debate in the House of Representatives in 1868 by Van Trump of Ohio. Measured most generously, this evidence would be inadequate to support the important constitutional conclusion presumably drawn in large part from it by the Court; but, as will be shown, other relevant evidence indicates that the Court plainly has mistaken the purposes of the clause's draftsmen.
45
The Amendment as initially approved by the House contained nothing which described or defined citizenship.35 The issue did not as such even arise in the House debates; it was apparently assumed that Negroes were citizens, and that it was necessary only to guarantee to them the rights which sprang from citizenship. It is quite impossible to derive from these debates any indicatio t hat the House wished to deny itself the authority it had exercised in 1864 and 1865; so far as the House is concerned, it seems that no issues of citizenship were 'at all involved.'36
46
In the Senate, however, it was evidently feared that unless citizenship were defined, or some more general classification substituted, freedmen might, on the premise that they were not citizens, be excluded from the Amendment's protection. Senator Stewart thus offered an amendment which would have inserted into § 1 a definition of citizenship,37 and Senator Wade urged as an alternative the elimination of the term 'citizen' from the Amendment's first section.38 After a caucus of the chief supporters of the Amendment, Senator Howard announced on their behalf that they favored the addition of the present Citizenship Clause.39
47
The debate upon the clause was essentially cursory in both Houses, but there are several clear indications of its intended effect. Its sponsors evidently shared the fears of Senators Stewart and Wade that unless citizenship were defined, freedmen might, under the reasoning of the Dred Scott decision,40 be excluded by the courts from the scope of the Amendment. It was agreed that, since there 'courts have stumbled on the subject,' it would be prudent to remove the 'doubt thrown over' it.41 The clause would essentially overrule Dred Scott, and place beyond question the freedmen's right of citizenship because of birth. It was suggested, moreover, that it would, by creating a basis for federal citizenship which was indisputably independent of state citizenship, preclude any effort by state legislatures to circumvent the Amendment by denying freedmen state citizenship.42 Nothing in the debates, however, supports the Court's assertion that the clause was intended to deny Congress its authority to expatriate unwilling citizens. The evidence indicates that its draftsmen instead expected the clause only to declare unreservedly to whom citizenship initially adhered, thus overturning the restrictions both of Dred Scott and of the doctrine of primary state citizenship, while preserving Congress' authority to prescribe the methods and terms of expatriation.
48
The narrow, essentially definitional purpose of the Citizenship Clause is reflected in the clear declarations in the debates that the clause would not revise the prevailing incidents of citizenship. Senator Henderson of Missouri thus stated specifically his understanding that the 'section will leave citizenship where it now is.'43 Senator Howard, in the first of the statements relied upon, in part, by the Court, said quite unreservedly that 'This amendment (the Citizenship Clause) which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the Uit ed States, and subject to their jurisdiction, is * * * a citizen of the United States.'44 Henderson had been present at the Senate's consideration both of the Wade-Davis bill and of the Enrollment Act, and had voted at least for the Wade-Davis bill.45 Howard was a member of the Senate when both bills were passed, and had actively participated in the debates upon the Enrollment Act.46 Although his views of the two expatriation measures were not specifically recorded, Howard certainly never expressed to the Senate any doubt either of their wisdom or of their constitutionality. It would be extraordinary if these prominent supporters of the Citizenship Clause could have imagined, as the Court's construction of the clause now demands, that the clause was only 'declaratory' of the law 'where it now is,' and yet that it would entirely withdraw a power twice recently exercised by Congress in their presence.
49
There is, however, even more positive evidence that the Court's construction of the clause is not that intended by its draftsmen. Between the two brief statements from Senator Howard relied upon by the Court, Howard, in response to a question, said the following:
50
'I take it for granted that after a man becomes a citizen of the United States under the Constitution he cannot cease to be citizen, except by expatriation or the commission of some crime by which his citizenship shall be forfeited.'47 (Emphasis added.)
51
It would be difficult to imagine a more unqualified rejection of the Court's position; Senator Howard, the clause's sponsor, very plainly believed that it would leave unimpaired Congress' power to deprive unwilling citizens of their citizenship.48
52
Additional confirmation of the expectations of the clause's draftsmen may be found in the legislative history, wholly overlooked by the Court, of the Act for the Relief of certain Soldiers and Sailors, adopted in 1867. 15 Stat. 14. The Act, debated by Congress within 12 months of its passage of the Fourteenth Amendment, provided an exception from the provisions of § 21 of the Enrollment Act of 1865 for those who had deserted from the Union forces after the termination of general hostilities. Had the Citizenship Clause been understood to have the effect now given it by the Court, surely this would have been clearly reflected in the debates; members would at least have noted that, upon final approval of the Amendment, which had already obtained the approval of 21 States, § 21 would necessarily be invalid. Nothing of the sort occurred; it was argued by some members that § 21 was imprudent and even unfair,49 but Congress evidently did not suppose that it was, or would be, unconstitutional. Congress simply failed to attribute to the Citizenship Clause the constitutional consequences now discovered by the Court.50
53
Nonetheless, the Court urges that the debates which culminated in the Expatriation Act of 1868 materially support its understanding of the purposes of the Citizenship Clause. This is, for several reasons, wholly unconvincing. Initially, it should be remembered that discussion of the Act began in committee some six months after the passage of the Relief Act of 1867, by the Second Session of the Congress which had approved the Relief Act; the Court's interpretation of the history of the Expatriation Act thus demands, at the outset, the supposition that a view of the Citizenship Clause entirely absent in July had appeared vividly by the following January. Further, the purposes and background of the Act should not be forgotten. The debates were stimulated by repeated requests both from President Andrew Johnson and from the public that Congress assert the rights of naturalized Americans against the demands of their former countries.51 The Act as finally adopted was thus intended 'primarily to assail the conduct of the British Government (chiefly for its acts toward naturalized Americans resident in Ireland) and to declare the right of naturalized Americans to renounce their native allegiance';52 accordingly, very little of the lengthy debate was in the least pertinent to the present issues. Several members did make plain, through their proposed amendments to the bill or their interstitial comments, that they understood Congress to have authority to expatriate unwilling citizens,53 but in general both the issues now before the Court and questions of the implications of the Citizenship Clause were virtually untouched in the debates.
54
Nevertheless, the Court, in order to establish that Congress understood that the Citizenship Clause denied it such authority, fastens principally upon the speeches of Congressman Van Trump of Ohio. Van Trump sponsored, as one of many similar me ndments offered to the bill by various members, a proposal to create formal machinery by which a citizen might voluntarily renounce his citizenship.54 Van Trump himself spoke at length in support of his proposal; his principal speech consisted chiefly of a detailed examination of the debates and judicial decisions pertinent to the issues of voluntary renunciation of citizenship.55 Never in his catalog of relevant materials did Van Trump even mention the Citizenship Clause of the Fourteenth Amendment;56 so far as may be seen from his comments on the House floor, Van Trump evidently supposed the clause to be entirely immaterial to the issues of expatriation. This is completely characteristic of the debate in both Houses; even its draftsmen and principal supporters, such as Senator Howard, permitted the Citizenship Clause to pass unnoticed. The conclusion seems inescapable that the discussions surrounding the Act of 1868 cast only the most minimal light, if indeed any, upon the purposes of the clause, and that the Court's evidence from the debates is, by any standard, exceedingly slight.57
55
There is, moreover, still further evidence, overlooked by the Court, which confirms yet again that the Court's view of the intended purposes of the Citizenship Clause is mistaken. While the debate on the Act of 1868 was still in progress, negotiations were completed on the first of a series of bilateral expatriation treaties, which 'initiated this country's policy of automatic divestment of citizenship for specified conduct affecting our foreign relations.' Perez v. Brownell, supra, 356 U.S., at 48, 78 S.Ct., at 571. Seven such treaties were negotiated in 1868 and 1869 alone;58 each was ratified by the Senate. If, as the Court now suggests, it was 'abundantly clear' to Congress in 1868 that the Citizenship Clause had taken from its hands the power to expatriation, it is quite difficult to understand why these conventions were negotiated, or why, once negotiated, they were not immediately repudiated by the Senate.59
56
Further, the executive authorities of the United States repeatedly acted, in the 40 years following 1868, upon the premise that a citizen might automatically be deemed to have expatriated himself by conduct short of a voluntary renunciation of citizenship; individual citizens were, as the Court indicated in Perez, regularly held on this basis to have lost their citizenship. Interested Members of Congress, and others, could scarcely have been unaware of the practice; as early as 1874. President Grant urged Congress in his Sixth Annual Message to supplement the Act of 1868 with a statutory declaration of the acts by which a citizen might 'be deemed to have renounced or to have lost his citizenship.'60 It was the necessity to provide a more satisfactory basis for this practice that led first to the appointment of the Citizenship Board of 1906, and subsequently to the Nationality Acts of 1907 and 1940. The administrative practice in this period was described by the Court in Perez; it suffices here merely to emphasize that the Court today has not ventured to explain why the Citizenship Clause should, so shortly after its adoption, have been, under the Court's construction, so seriously misunderstood.
57
It seems to me apparent that the historical evidence which the Court in part recites is wholly inconclusive, as indeed the Court recognizes; the evidence, to the contrary, irresistibly suggests that the draftsman of the Fourteenth Amendment did not intend, and could not have expected, that the Citizenship Clause would deprive Congress of authority which it had, to their knowledge, only recently twice exercised. The construction demanded by the pertinent historical evidence, and entirely consistent with the clause's terms and purposes, is instead that it declares to whom citizenship, as a consequence either of birth or of naturalization, initially attaches. The clause thus served at the time of its passage both to overturn Dred Scott and to provide a foundation for federal citizenship entirely independent of state citizenship; in this fashion it effectively guaranteed that the Amendment's protection would not subsequently be withheld from those for whom it was principally intended. But nothing in the history, purposes, or language of the clause suggests that it forbids Congress in all circumstances to withdraw the citizenship of an unwilling citizen. To the contrary, it was expected, and should now be understood, to leave Congress at liberty to expatriate a citizen if the expatriation is an approprate exercise of a power otherwise given to Congress by the Constitution, and if the methods and terms of expatriation adopted by Congress are consistent with the Constitution's other relevant commands.
58
The Citizenship Clause thus neither denies nor provides to Congress any power to expatriation; its consequences are, for present purposes, exhausted by its declaration of the classes of individuals to whom citizenship initially attaches. Once obtained, citizenship is of course protected from arbitrary withdrawal by the constraints placed around Congress' powers by the Constitution; it is not proper to create from the Citizenship Clause an additional, and entirely unwarranted, restriction upon legislative authority. The construction now placed on the Citizenship Clause rests, in the last analysis, simply on the Court's ipse dixit, evincing little more, it is quite apparent, than the present majority's own distaste for the expatriation power.
59
I believe that Perez was rightly decided, and on its authority would affirm the judgment of the Court of Appeals.
1
54 Stat. 1168, as amended, 58 Stat. 746, 8 U.S.C. §§ 801 (1946 ed.):
'(A) person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:
'(e) Voting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory.'
This provision was re-enacted as § 349(a)(5) of the Immigration and Nationality Act of 1952, 66 Stat. 267, 8 U.S.C. § 1481(a)(5).
2
'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States ** *.'
3
250 F.Supp. 686; 361 F.2d 102, 105.
4
Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630; Nishikawa v. Dulles, 356 U.S. 129, 78 S.Ct. 612, 2 L.Ed.2d 659.
5
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644; Schneider v. Rusk, 377 U.S. 163, 84 S.Ct. 1187, 12 L.Ed.2d 218. In his concurring opinion in Mendoza-Martinez, Mr. Justice Brennan expressed 'felt doubts of the correctness of Perez * * *.' 372 U.S., at 187, 83 S.Ct., at 577.
6
See, e.g., Agata, Involuntary Expatriation and Schneider v. Rusk, 27 U.Pitt.L.Rev. 1 (1965); Hurst, Can Congress Take Away Citizenship?, 29 Rocky Mt.L.Rev. 62 (1956); Kurland, Foreward: 'Equal in Origin and Equal in Title to the Legislative and Executive Branches of the Government,' 78 Harv.L.Rev. 143, 169—175 (1964); Comment, 56 Mich.L.Rev. 1142 (1958); Note, Forfeiture of Citizenship Through Congressional Enactments, 21 U.Cin.L.Rev. 59 (1952); 40 Cornell L.Q. 365 (1955); 25 S.Cal.L.Rev. 196 (1952). But see, e.g., Comment, The Expatriation Act of 1954, 64 Yale L.J. 1164 (1955).
7
See Perez v. Brownell, supra, 356 U.S. at 62, 78 S.Ct. at 578 (dissenting opinion of The Chief Justice), 356 U.S. 79, 78 S.Ct. at 586 (dissenting opinion of Mr. Justice Douglas); Trop v. Dulles, supra, 356 U.S. at 91—93, 78 S.Ct. at 593—594 (part I of opinion of Court); Nishikawa v. Dulles, supra, 356 U.S. 618 at 138, 78 S.Ct. at 618 (concurring opinion of Mr. Justice Black).
8
For a history of the early American view of the right of expatriation, including these congressional proposals, see generally Roche, The Early Development of United States Citizenship (1949); Tsiang, The Question of Expatriation in America Prior to 1907 (1942); Dutcher, The Right of Expatriation, 11 Am.L.Rev. 447 (1877); Roche, The Loss of American Nationality The Development of Statutory Expatriation, 99 U.Pa.L.Rev. 25 (1950); Slaymaker, The Right of the American Citizen to Expatriate, 37 Am.L.Rev. 191 (1903).
9
4 Annals of Cong. 1005, 1027—1030 (1794); 7 Annals of Cong. 349 et seq. (1797).
10
See, e.g., Talbot v. Janson, 3 Dall. 133, 1 L.Ed. 540.
11
31 Annals of Cong. 495 (1817).
12
Id., at 1036—1037, 1058 (1818). Although some of the opponents, believing that citizenship was derived from the States, argued that any power to prescribe the mode for its relinquishment rested in the States, they were careful to point out that 'the absence of all power from the State Legislatures would not vest it in us.' Id., at 1039.
13
The amendment had been proposed by the 11th Cong., 2d Sess. See The Constitution of the United States of America, S.oc .No. 39, 88th Cong., 1st Sess., 77—78 (1964).
14
Id., at 1071. It is interesting to note that the proponents of the bill, such as Congressman Cobb of Georgia, considered it to be 'the simple declaration of the manner in which a voluntary act, in the exercise of a natual right, may be performed' and denied that it created or could lead to the creation of 'a presumption of relinquishment of the right of citizenship.' Id., at 1068.
15
The dissenting opinion here points to the fact that a Civil War Congress passed two Acts designed to deprive militiary deserters to the Southern side of the rights of citizenship. Measures of this kind passed in those days of emotional stress and hostility are by no means the most reliable criteria for determining what the Constitution means.
16
Cong.Globe, 39th Cong., 1st Sess., 2768—2769, 2869, 2890 et seq. (1866). See generally, Flack, Adoption of the Fourteenth Amendment 88—94 (1908).
17
Representative Jenckes of Rhode Island introduced an amendment that would expatriate those citizens who became naturalized by a foreign government, performed public duties for a foreign government, or took up domicile in a foreign country without intent to return. Cong. Globe, 40th Cong., 2d Sess., 968, 1129, 2311 (1868). Although he characterized his proposal as covering 'cases where citizens may voluntarily renounce their allegiance to this country,' id., at 1159, it was opposed by Representative Chanler of New York who said, 'So long as a citizen does not expressly dissolve his allegiance and does not swear allegiance to another country his citizenship remains in statu quo, unaltered and unimpaired.' Id., at 1016.
18
Proposals of Representatives Pruyn of New York (id., at 1130) and Van Trump of Ohio (id., at 1801, 2311).
19
While Van Trump disagreed with the 1818 opponents as to whether Congress had power to prescribe a means of voluntary renunciation of citizenship, he wholeheartedly agreed with their premise that the right of expatriation belongs to the citizen, not to the Government, and that the Constitution forbids the Government from being party to the act of expatriation. Van Trump simply thought that the opponents of the 1818 proposal failed to recognize that their mutual premise would not be violated by an Act which merely prescribed 'how * * * (the rights of citizenship) might be relinquished at the option of the person in whom they were vested.' Cong.Globe, 40th Cong., 2d Sess., 1804 (1868).
20
Id., at 2317. Representative Banks of Massachusetts, the Chairman of the House Committee on Foreign Affairs which drafted the bill eventually enacted into law, explained why Congress refrained from providing a means of expatriation:
'It is a subject which, in our opinion, ought not to be legislated upon. * * * (T)his comes within the scope and character of natural rights which no Government has the right to control and which no Government can confer. And wherever this subject is alluded to in the Constitution—* * * it is in the declaration that Congress shall have no power whatever to legislate upon these matters.' Id., at 2316.
21
15 Stat. 223, R.S. § 1999.
22
Some have referred to this part of the decision as a holding, see, e.g., Hurst, supra, 29 Rocky Mt.L.Rev., at 78—79; Comment, 56 Mich.L.Rev., at 1153—1154; while others have referred to it as obiter dictum, see, e.g., Roche, supra, 99 U.Pa.L.Rev., at 26—27. Whichever it was, the statement was evidently the result of serious consideration and is entitled to great weight.
23
Of course, as The Chief Justice said in his dissent, 356 U.S., at 66, 78 S.t. , at 580; naturalization unlawfully procured can be set side. See e.g., Knauer v. United States, 328 U.S. 654, 66 S.Ct. 1304, 90 L.Ed. 1500; Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525; Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796.
1
It is appropriate to note at the outset what appears to be a fundamental ambiguity in the opinion for the Court. The Court at one point intimates, but does not expressly declare, that it adopts the reasoning of the dissent of The Chief Justice in Perez. The Chief Justice there acknowledged that 'actions in derogation of undivided allegiance to this country' had 'long been recognized' to result in expatriation, id., at 68, 78 S.Ct. at 581; he argued, however, that the connection between voting in a foreign political election and abandonment of citizenship was logically insufficient to support a presumption that a citizen had renounced his nationality. Id., at 76, 78 S.Ct. at 586. It is difficult to find any semblance of this reasoning, beyond the momentary reference to the opinion of The Chief Justice, in the approach taken by the Court today; it seems instead to adopt a substantially wider view of the restrictions upon Congress' authority in this area. Whatever the Court's position, it has assumed that voluntariness is here a term of fixed meaning; in fact, of course, it has been employed to describe both a specific intent to renounce citizenship, and the uncoerced commission of an act conclusively deemed by law to be a relinquishment of citizenship. Until the Court indicates with greater precision what it means by 'assent,' today's opinion will surely cause still greater confusion in this area of the law.
2
It is useful, however, to reiterate the essential facts of this case, for the Court's very summary statement might unfortunately cause confusion about the situation to which § 401(e) was here applied. Petitioner emigrated from the United States to Israel in 1950, and, although the issue was not argued at any stage of these proceedings, it was assumed by the District Court that he 'has acquired Israeli citizenship.' 250 F.Supp. 686, 687. He voted in the election for the Israeli Knesset in 1951, and, as his Israeli Identification Booklet indicates, in various political elections which followed. Transcript of Record 1—2. In 1960, after 10 years in Israel, petitioner determined to return to the United States, and applied to the United States Consulate in Haifa for a passport. The application was rejected, and a Certificate of Loss of Nationality, based entirely on his participation in the 1951 election, was issued. Petitioner's action for declaratory judgment followed. There is, as the District Court noted, 'no claim by the (petitioner) that the deprivation of his American citizenship will render him a stateless person.' Ibid.
3
See generally Tsiang, The Question of Expiration in America Prior to 1907, 25—70; Roche, The Expatriation Cases, 1963 Sup.Ct.Rev. 325, 327—330; Roche. Loss of American Nationality, 4 West.Pol.Q. 268.
4
Roche, The Expatriation Cases, 1963 Sup.Ct.Rev. 325, 329. Although the evidence, which consists principally of a letter to Albert Gallatin, is rather ambiguous, Jefferson apparently believed even that a state expatriation statute could deprive a citizen of his federal citizenship. 1 Writings of Albert Gallatin 301—302 (Adams ed. 1879). His premise was presumably that state citizenship was primary, and that federal citizenship attached only through it. See Tsiang, supra, at 25. Gallatin's own views have been described as essentially 'states' rights'; see Roche, Loss of American Nationality, 4 West.Pol.Q. 268, 271.
5
See 4 Annals of Cong. 1004 et seq.
6
The discussion and rejection of the amendment are cursorily reported at 4 Annals of Cong. 1028—1030.
7
The sixth section is set out at 7 Annals of Cong. 349.
8
The bill is summarized at 31 Annals of Cong. 495.
9
31 Annals of Cong. 1046.
10
31 Annals of Cong. 1057.
11
Ibid. Roche describes the Congressmen upon whom the Court chiefly relies as 'the states' rights opposition.' Loss of American Nationality, 4 West.Pol.Q. 268, 276.
12
31 Annals of Cong. 1047.
13
31 Annals of Cong. 1050.
14
31 Annals of Cong. 1059.
15
Ibid.
16
31 Annals of Cong. 1051.
17
Similarly, the Court can obtain little support from its invocation of the dictum from the opinion for the Court in United States v. Wong Kim Ark, 169 U.S. 649. 703, 18 S.Ct. 456, 477, 42 L.Ed. 890. The central issue there was whether a child born of Chinese nationals domiciled in the United States is an American citizen if its birth occurs in this country. The dictum upon which the Court relies, which consists essentially of a reiteration of the dictum from Osborn, can therefore scarcely be considered a reasoned consideration of the issues now before the Court. Moreover, the dictum could conceivably be read to hold only that no power to expatriate an unwilling citizen was conferred either by the Naturalization Clause or by the Fourteenth Amendment; if the dictum means no more, it would of course not even reach the holding in Perez. Finally, the dictum must be read in light of the subsequent opinion for the Court, written by Mr. Justice McKenna, in Mackenzie v. Hare, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297. Despite counsel's invocation of Wong Kim Ark, id., at 302 at 303, 36 S.Ct. 106, the Court hld in Mackenzie that marriage between an Amercian citizen and an alien, unaccompanied by any intention of the citizen to renounce her citizenship, nonetheless permitted Congress to withdraw her nationality. It is immaterial for these purposes that Mrs. Mackenzie's citizenship might, under the statute there, have been restored upon termination of the marital relationship; she did not consent to the loss, even temporarily, of her citizenship, and, under the proposition apparently urged by the Court today, it can therefore scarcely matter that her expatriation was subject to some condition subsequent. It seems that neither Mr. Justice McKenna, who became a member of the Court after the argument but before the decision of Wong Kin Ark, supra, 169 U.S., at 732, 18 S.Ct., at 488, nor Mr. Chief Justice White, who joined the Court's opinions in both Wong Kim Ark and Mackenzie, thought that Wong Kim Ark required the result reached by the Court today. Nor, it must be supposed, did the other six members of the Court who joined Mackenzie, despite Wong Kim Ark.
18
The various revisions of the proposed amendment may be traced through 20 Annals of Cong. 530, 549, 572—573, 635, 671.
19
Ames, The Proposed Amendments to the Constitution of the United States during the First Century of Its History, 2 Ann.Rep.Am.Hist. Assn. for the Year 1896, 188.
20
Ames, supra, at 187, speculates that the presence of Jerome Bonaparte in this country some few years earlier might have caused apprehension, and concludes that the amendment was merely an expression of 'animosity against foreigners.' Id., at 188.
21
The clause provides that 'No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.'
22
Roche, The Expatriation Cases, 1963 Sup.Ct.Rev. 325, 335.
23
Ibid.
24
6 Richardson, Messages and Papers of the Presidents 226.
25
See, e.g., the comments of Senator Brown of Missouri, Cong.Globe, 38th Cong., 1st Sess., 3460.
26
Lincoln indicated that although he was 'unprepared' to be 'inflexibly committed' to 'any single plan of restoration,' he was 'fully satisfied' with the bill's provisions. 6 Richardson, Messages and Papers of the Presidents 222—223.
27
Roche, The Expatriation Cases, 1963 Sup.Ct.Rev. 325, 343.
28
13 Stat. 490. It was this provision that, after various recodifications, was held unconstitutional by this Court in Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630. A majority of the Court did not there hold that the provision was invalid because Congress lacked all power to expatriate an unwilling citizen. In any event, a judgment by this Court 90 years after the Act's passage can scarcely reduce the Act's evidentiary value for determining whether Congress understood in 1865, as the Court now intimates that it did, that it lacked such power.
29
13 Stat. 491.
30
Cong.Globe, 38th Cong., 2d Sess., 642—643, 1155—1156.
31
Roche, The Expatriation Cases, 1963 Sup.Ct.Rev. 325, 336.
32
13 Stat. 490.
33
Hearings before House Committee on Immigration and Naturalization on H.R. 6127, 76th Cong., 1st Sess., 38.
34
See, e.g., the remarks of Senator Hendricks, Cong.Globe, 40th Cong., 1st Sess., 661.
35
The pertinent events are described in Flack, Adoption of the Fourteenth Amendment 83—94.
36
Id., at 84.
37
Cong.Globe, 39th Cong., 1st Sess., 2560.
38
Wade would have emplyed the formula 'persons born in the United States or naturalized under the laws thereof' to measure the section's protection. Cong.Globe, 39th Cong., 1st Sess., 2768 2769.
39
Cong.Globe, 39th Cong., 1st Sess., 2869. The precise terms of the discussion in the caucus were, and have remained, unknown. For contemporary comment, see Cong.Globe, 39th Cong., 1st Sess., 2939.
40
Scott v. Sanford, 19 How. 393.
41
Cong.Golbe, 39th Cong., 1st Sess., 2768.
42
See, e.g., the comments of Senator Johnson of Maryland, Cong.Globe, 39th Cong., 1st Sess., 2893. It was subsequently acknowledged by several members of this Court that a central purpose of the Citizenship Clause was to create an independent basis of federal citizenship, and thus to overturn the doctrine of primary state citizenship. The Slaughter-House Cases, 16 Wall. 36, 74, 95, 112, 21 L.Ed. 394. The background of this issue is traced in tenBroek, The Antislavery Origins of the Fourteenth Amendment 71—93.
43
Cong.Globe, 39th Cong., 1st Sess., 3031. See also Flack, The Adoption of the Fourteenth Amendment 93. In the same fashion, tenBroek, supra, at 215—217, concludes that the whole of § 1 was 'declaratory and confirmatory.' Id., at 217.
44
Cong.Globe, 39th Cong., 1st Sess., 2890. See also the statement of Congressman Baker, Cong.Globe, 39th Cong., 1st Sess., App. 255, 256. Similarly, two months after the Amendment's passage through Congress, Senator Lane of Indiana remarked that the clause was 'simply a reaffirmation' of the declaratory citizenship section of the Civil Rights Bill. Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? 2 Stan.L.Rev. 5, 74.
45
Senator Henderson participated in the debates upon the Enrollment Act and expressed no doubts about the constitutionality of § 21, Cong.Globe, 38th Cong., 2d Sess., 641, but the final vote upon the measure in the Senate was not recorded. Cong.Globe, 38th Cong., 2d Sess., 643.
46
See, e.g., Cong.Globe, 38th Cong.2d Sess., 632.
47
Cong.Globe, 39th Cong., 1st Sess., 2895.
48
The issues pertinent here were not, of course, matters of great consequence in the ratification debates in the several state legislatures, but some additional evidence is nonetheless available from them. The Committee on Federal Relations of the Texas House of Representatives thus reported to the House that the Amendment's first section 'proposes to deprive the States of the right * * * to determine what shall constitute citizenship of a State, and to transfer that right to the Federal Government.' Its 'object' was, they thought, 'to declare negroes to be citizens of the United States.' Tex. House J. 578 (1866). The Governor of Georgia reported to the legislature that the 'prominent feature of the first (section) is, that it settles definitely the right of citizenship in the several States, * * * thereby depriving them in the future of all discretionary power over the subject within their respective limits, and with reference to their State Governments proper.' Ga.Sen.J. 6 (1866). See also the message of Governor Cox to the Ohio Legislature, Fairman, supra, 2 Stan.L.Rev., at 96 and the message of Governor Fletcher to the Missouri Legislature, Mo.Sen.J. 14 (1867). In combination, this evidence again suggests that the Citizenship Clause was expected merely to ec lare to whom citizenship initially attaches, and to overturn the doctrine of primary state citizenship.
49
Senator Hendricks, for example, lamented its unfairness, declared that its presence was an 'embarrassment' to the country, and asserted that it 'is not required any longer.' Cong. Globe, 40th Cong., 1st Sess., 660—661.
50
Similarly, in 1885, this Court construed § 21 without any apparent indication that the section was, or had ever been thought to be, beyond Congress' authority. Kurtz v. Moffitt, 115 U.S. 487, 501—502, 6 S.Ct. 148, 153, 29 L.Ed. 458.
51
Tsiang, supra, n. 3, at 95. President Johnson emphasized in his Third Annual Message the difficulties which were then prevalent. 6 Richardson, Messages and Papers of the Presidents 558, 580—581.
52
Tsiang, supra, at 95. See also 3 Moore, Digest of International Law 579—580.
53
See, e.g., Cong.Globe, 40th Cong., 2d Sess., 968, 1129 1131.
54
Van Trump's proposal contained nothing which would have expatriated any unwilling citizen, see Cong.Globe, 40th Cong., 2d Sess., 1801; its ultimate failure therefore cannot, despite the Court's apparent suggestion, help to establish that the House supposed that legislation similar to that at issue here was impermissible under the Constitution.
55
Cong.Globe, 40th Cong., 2d Sess., 1800—1805.
56
It should be noted that Van Trump, far from a 'framer' of the Amendment, had not even been a member of the Congress which adopted it. Biographical Directory of the American Congress 1774 1961, H.R.Doc. No. 442, 85th Cong., 2d Sess., 1750.
57
As General Banks, the Chairman of the House Committee on Foreign Affairs, carefully emphasized, the debates were intended simply to produce a declaration of the obligation of the United States to compel other countries 'to consider the rights of our citizens and to bring the matter to negotiation and settlement'; the bill's proponents stood 'for that and nothing more.' Cong.Globe. 40th Cong., 2d Sess., 2315.
58
The first such treaty was that with the North German Union, concluded February 22, 1868, and ratified by the Senate on March 26, 1868. 2 Malloy, Treaties, Conventions, International Acts, Protocols and Agreements between the United States and other Powers 1298. Similar treaties were reached in 1868 with Bavaria, Baden, Belgium, Hesse, and Wu rttemberg; a treaty was reached in 1869 with Norway and Sweden. An analogous treaty was made with Mexico in 1868, but, significantly, it permitted rebuttal of the presumption of renunciation of citizenship. See generally Tsiang, supra at 88.
59
The relevance of these treaties was certainly not overlooked in the debates in the Senate upon the Act of 1868. See, e.g., Cong.Globe, 40th Cong., 2d Sess., 4205, 4211, 4329, 4331. Senator Howard attacked the treaties, but employed none of the reasons which might be suggested by the opinionfo r the Court today. Id., at 4211.
60
7 Richardson, Messages and Papers of the Presidents 284, 291. See further Borchard, Diplomatic Protection of Citizens Abroad §§ 319, 324, 325.
| 12
|
387 U.S. 294
87 S.Ct. 1642
18 L.Ed.2d 782
WARDEN, MARYLAND PENITENTIARY, Petitioner,v.Bennie Joe HAYDEN.
No. 480.
Argued April 12, 1967.
Decided May 29, 1967.
Franklin Goldstein, Asst. Atty. Gen. of Maryland, for petitioner.
Albert R. Turnbull, Norfolk, Va., for respondent, pro hac vice, by special leave of Court.
Ralph S. Spritzer, Washington, D.C., for the United States, as amicus curiae, by special leave of Court.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
We review in this case the validity of the proposition that there is under the Fourth Amendment a 'distinction between merely evidentiary materials, on the one hand, which may not be seized either under the authority of a search warrant or during the course of a search incident to arrest, and on the other hand, those objects which may validly be seized including the instrumentalities and means by which a crime is committed, the fruits of crime such as stolen property, weapons by which escape of the person arrested might be effected, and property the possession of which is a crime.'1
2
A Maryland court sitting without a jury convicted respondent of armed robbery. Items of his clothing, a cap, jacket, and trousers, among other things, were seized during a search of his home, and were admitted in evidence without objection. After unsuccessful state court proceedings, he sought and was denied federal habeas corpus relief in the District Court for Maryland.2 A divided panel of the Court of Appeals for the Fourth Circuit reversed. 363 F.2d 647. The Court of Appeals believed that Harris v. United States, 331 U.S. 145, 154, 67 S.Ct. 1098, 1103, 91 L.Ed. 1399, sustained the validity of the search, but held that respondent was correct in his contention that the clothing seized was improperly admitted in evidence because the items had 'evidential value only' and therefore were not lawfully subject to seizure. We granted certiorari. 385 U.S. 926, 87 S.Ct. 290, 17 L.Ed.2d 210. We reverse.3
I.
3
About 8 a.m. on March 17, 1962, an armed robber entered the business premises of the Diamond Cab Company in Baltimore, Maryland. He took some $363 and ran. Two cab drivers in the vicinity, attracted by shouts of 'Holdup,' followed the man to 2111 Cocoa Lane. One driver notified the company dispatcher by radio that the man was a Negro about 5 8 tall, wearing a light cap and dark jacket, and that he had entered the house on Cocoa Lane. The dispatcher relayed the information to police who were proceeding to the scene of the robbery. Within minutes, police arrived at the house in a number of patrol cars. An officer knocked and announced their presence. Mrs. Hayden answered, and the officers told her they believed that a robber had entered the house, and asked to search the house. She offered no objection.4
4
The officers spread out through the first and second floors and the cellar in search of the robber. Hayden was found in an upstairs bedroom feigning sleep. He was arrested when the officers on the first floor and in the cellar reported that no other man was in the house. Meanwhile an officer was attracted to an adjoining bathroom by the noise of running water, and discovered a shotgun and a pistol in a flush tank; another officer who, according to the District Court, 'was searching the cellar for a man or the money' found in a washing machine a jacket and trousers of the type the fleeing man was said to have worn. A clip of ammunition for the pistol and a cap were found under the mattress of Hayden's bed, and ammunition for the shotgun was found in a bureau drawer in Hayden's room. All these items of evidence were introduced against respondent at his trial.
II.
5
We agree with the Court of Appeals that neither the entry without warrant to search for the robber, nor the search for him without warrant was invalid. Under the circumstances of this case, 'the exigencies of the situation made that course imperative.' McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153. The police were informed that an armed robbery had taken place, and that the suspect had entered 2111 Cocoa Lane less than five minutes before they reached it. They acted reasonably when they entered the house and began to search for a man of the description they had been given and for weapons which he had used in the robbery or might use against them. The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape.
6
We do not rely upon Harris v. United States, supra, in sustaining the validity of the search. The principal issue in Harris was whether the search there could properly be regarded as incident to the lawful arrest, since Harris was in custody before the search was made and the evidence seized. Here, the seizures occurred prior to or immediately contemporaneous with Hayden's arrest, as part of an effort to find a suspected felon, armed, within the house into which he had run only minutes before the police arrived. The permissible scope of search must, therefore, at the least, be as broad as may reasonably be necessary to prevent the dangers that the suspect at large in the house may resist or escape.
7
It is argued that, while the weapons, ammunition, and cap may have been seized in the course of a search for weapons, the officer who seized the clothing was searching neither for the suspect nor for weapons when he looked into the washing machine in which he found the clothing. But even if we assume, although we do not decide, that the exigent circumstances in this case made lawful a search without warrant only for the suspect or his weapons, it cannot be said on this record that the officer who found the clothes in the washing machine was not searching for weapons. He testified that he was searching for the man or the money, but his failure to state explicitly that he was searching for weapons, in the absence of a specific question to that effect, can hardly be accorded controlling weight. He knew that the robber was armed and he did not know that some weapons had been found at the time he opened the machine.5 In these circumstances the inference that he was in fact also looking for weapons is fully justified.
III.
8
We come, then, to the question whether, even though the search was lawful, the Court of Appeals was correct in holding that the seizure and introduction of the items of clothing violated the Fourth Amendment because they are 'mere evidence.' The distinction made by some of our cases between seizure of items of evidential value only and seizure of instrumentalities, fruits, or contraband has been criticized by courts6 and commentators.7 The Court of Appeals, however, felt 'obligated to adhere to it.' 363 F.2d, at 655. We today reject the distinction as based on premises no longer accepted as rules governing the application of the Fourth Amendment.8
9
We have examined on many occasions the history and purposes of the Amendment.9 It was a reaction to the evils of the use of the general warrant in England and the writs of assistance in the Colonies, and was intended to protect against invasions of '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, from searches under indiscriminate, general authority. Protection of these interests was assured by prohibiting all 'unreasonable' searches and seizures, and by requiring the use of warrants, which particularly describe 'the place to be searched, and the persons or things to be seized,' thereby interposing 'a magistrate between the citizen and the police,' McDonald v. United States, supra, 335 U.S., at 455, 69 S.Ct., at 193.
10
Nothing in the language of the Fourth Amendment supports the distinction between 'mere evidence' and instrumentalities, fruits of crime, or contraband. On its face, the provision assures the 'right of the people to be secure in their persons, houses, papers, and effects * * *,' without regard to the use to which any of these things are applied. This 'right of the people' is certainly unrelated to the 'mere evidence' limitation. Privacy is disturbed no more by a search directed to a purely evidentiary object than it is by a search directed to an instrumentality, fruit, or contraband. A magistrate can intervene in both situations, and the requirements of probable cause and specificity can be preserved intact. Moreover, nothing in the nature of property seized as evidence renders it more private than property seized, for example, as an instrumentality; quite the opposite may be true. Indeed, the distinction is wholly irrational, since, depending on the circumstances, the same 'papers and effects' may be 'mere evidence' in one case and 'instrumentality' in another. See Comment, 20 U.Chi.L.Rev. 319, 320—322 (1953).
11
In Gouled v. United States, 255 U.S. 298, 309, 41 S.Ct. 261, 265, 65 L.Ed. 647, the Court said that search warrants '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 * * *.' The Court derived from Boyd v. United States, supra, the proposition that warrants 'may be resorted to only when a primary right to such search and seizure may be found in the interest which the public or the complainant may have in the property to be seized, or in the right to the possession of it, or when a valid exercise of the ol ice power renders possession of the property by the accused unlawful and provides that it may be taken,' 255 U.S., at 309, 41 S.Ct. at 265; that is, when the property is an instrumentality or fruit of crime, or contraband. Since it was 'impossible to say, on the record * * * that the government had any interest' in the papers involved 'other than as evidence against the accused * * *,' 'to permit them to be used in evidence would be, in effect, as ruled in the Boyd Case, to compel the defendant to become a witness against himself.' Id., at 311, 41 S.Ct., at 265.
12
The items of clothing involved in this case are not 'testimonial' or 'communicative' in nature, and their introduction therefore did not compel respondent to become a witness against himself in violation of the Fifth Amendment. Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. This case thus does not require that we consider whether there are items of evidential value whose very nature precludes them from being the object of a reasonable search and seizure.
13
The Fourth Amendment ruling in Gouled was based upon the dual, related premises that historically the right to search for and seize property depended upon the assertion by the Government of a valid claim of superior interest, and that it was not enough that the purpose of the search and seizure was to obtain evidence to use in apprehending and convicting criminals. The common law of search and seizure after Entick v. Carrington, 19 How.St.Tr. 1029, reflected Lord Camden's view, derived no doubt from the political thought of his time, that the 'great end, for which men entered into society, was to secure their property.' Id., at 1066. Warrants were 'allowed only where the primary right to such a search and seizure is in the interest which the public or complainant may have in the property seized.' The History and Development of the Fourth Amendment to the United States Constitution 133-134. Thus stolen property—the fruits of crime—was always subject to seizure. And the power to search for stolen property was graudually extended to cover 'any property which the private citizen was not permitted to possess,' which included instrumentalities of crime (because of the early notion that items used in crime were forfeited to the State) and contraband. Kaplan, Search and Seizure: A No-Man's Land in the Criminal Law, 49 Calif.L.Rev. 474, 475. No separate governmental interest in seizing evidence to apprehend and convict criminals was recognized; it was required that some property interest be asserted. The remedial structure also reflected these dual premises. Trespass, replevin, and the other means of redress for persons aggrieved by searches and seizures, depended upon proof of a superior property interest. And since a lawful seizure presupposed a superior claim, it was inconceivable that a person could recover property lawfully seized. As Lord Camden pointed out in Entick v. Carrington, supra, at 1066, a general warrant enabled 'the party's own property (to be) seized before and without conviction, and he has no power to reclaim his goods, even after his innocence is cleared by acquittal.'
14
The premise that property interests control the right of the Government to search and seize has been discredited. Searches and seizures may be 'unreasonable' within the Fourth Amendment even though the Government asserts a superior property interest at common law. We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property concepts. See Jones v. United States, 362 U.S. 257, 266, 80 S.Ct. 725, 733, 4 L.Ed.2d 697; Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682, 5 L.Ed.2d 734. This shift in emphasis from property to privacy has come about through a subtle interplay of substantive and procedural reform. The remedial structure at the time even of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, was arguably explainable in property terms. The Court held in Weeks that a defendant could petition before trial for the return of his illegally seized property, a proposition not necessarily inconsistent with Adams v. People of State of New York, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575, which held in effect that the property issues involved in search and seizure are collateral to a criminal proceeding.10 The remedial structure finally escaped the bounds of common law property limitations in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, and Gouled v. United States, supra, when it became established that suppression might be sought during a criminal trial, and under circumstances which would not sustain an action in trespass or replevin. Recognition that the role of the Fourth Amendment was to protect against invasions of privacy demanded a remedy to condemn the seizure in Silverthorne, although no possible common law claim existed for the return of the copies made by the Government of the papers it had seized. The remedy of suppression, necessarily involving only the limited, functional consequence of excluding the evidence from trial, satisfied that demand.
15
The development of search and seizure law since Silverthorne and Gouled is replete with examples of the transformation in substantive law brought about through the interaction of the felt need to protect privacy from unreasonable invasions and the flexibility in rulemaking made possible by the remedy of exclusion. We have held, for example, that intangible as well as tangible evidence may be suppressed, Wong Sun v. United States, 371 U.S. 471, 485—486, 83 S.Ct. 407, 416—417, 9 L.Ed.2d 441, and that an actual trespass under local property law is unnecessary to support a remediable violation of the Fourth Amendment, Silverman v. United States, supra. In determining whether someone is a 'person aggrieved by an unlawful search and seizure' we have refused 'to import into the law * * * subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical.' Jones v. United States, supra, 362 U.S., at 266, 80 S.Ct., at 733. And with particular relevance here, we have given recognition to the interest in privacy despite the complete absence of a property claim by suppressing the very items which at common law could be seized with impunity: stolen goods, Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134; instrumentalities, Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142; McDonald v. United States, supra; and contraband, Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663; Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.
16
The premise in Gouled that government may not seize evidence simply for the purpose of proving crime has likewise been discredited. The requirement that the Government assert in addition some property interest in material it seizes has long been a fiction,11 obscuring the reality that government has an interest in solving crime. Schmerber settled the proposition that it is reasonable, within the terms of the Fourth Amendment, to conduct otherwise permissible searches for the purpose of obtaining evidence which would aid in apprehending and convicting criminals. The requirements of the Fourth Amendment can secure the same protection of privacy whether the search is for 'mere evidence' or for fruits, instrumentalities or contraband. There must, of course, be a nexus automatically provided in the case of fruits, instrumentalities or contraband—between the item to be seized and criminal behavior. Thus in the case of 'mere vi dence,' probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction. In so doing, consideration of police purposes will be required. Cf. Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876. But no such problem is presented in this case. The clothes found in the washing machine matched the description of those worn by the robber and the police therefore could reasonably believe that the items would aid in the identification of the culprit.
17
The remedy of suppression, moreover, which made possible protection of privacy from unreasonable searches without regard to proof of a superior property interest, likewise provides the procedural device necessary for allowing otherwise permissible searches and seizures conducted solely to obtain evidence of crime. For just as the suppression of evidence does not entail a declaration of superior property interest in the person aggrieved, thereby enabling him to suppress evidence unlawfully seized despite his inability to demonstrate such an interest (as with fruits, instrumentalities, contraband), the refusal to suppress evidence carries no declaration of superior property interest in the State, and should thereby enable the State to introduce evidence lawfully seized despite its inability to demonstrate such an interest. And, unlike the situation at common law, the owner of property would not be rendered remediless if 'mere evidence' could lawfully be seized to prove crime. For just as the suppression of evidence does not in itself necessarily entitle the aggrieved person to its return (as, for example, contraband), the introduction of 'mere evidence' does not in itself entitle the State to its retention. Where public officials 'unlawfully seize or hold a citizen's realty or chattels, recoverable by appropriate action at law or in equity * * *,' the true owner may 'bring his possessory action to reclaim that which is wrongfully withheld.' Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209. (Emphasis added.) See Burdeau v. McDowell, 256 U.S. 465, 474, 41 S.Ct. 574, 575, 65 L.Ed. 1048.
18
The survival of the Gouled distinction is attributable more to chance than considered judgment. Legislation has helped perpetuate it. Thus, Congress has never authorized the issuance of search warrants for the seizure of mere evidence of crime. See Davis v. United States, 328 U.S. 582, 606, 66 S.Ct. 1256, 1267, 90 L.Ed. 1453 (dissenting opinion of Mr. Justice Frankfurter). Even in the Espionage Act of 1917, where Congress for the first time granted general authority for the issuance of search warants, the authority was limited to fruits of crime i nstrumentalities, and certain contraband. 40 Stat. 228. Gouled concluded, needlessly it appears, that the Constitution virtually limited searches and seizures to these categories.12 After Gouled, pressure to test this conclusion was slow to mount. Rule 41(b) of the Federal Rules of Criminal Procedure incorporated the Gouled categories as limitations on federal authorities to issue warrants, and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, only recently made the 'mere evidence' rule a problem in the state courts. Pressure against the rule in the federal courts has taken the form rather of broadening the categories of evidence subject to seizure, thereby creating considerable confusion in the law. See, e.g., Note, 54 Geo.L.J. 593, 607—621 (1966).
19
The rationale most frequently suggested for the rule preventing the seizure of evidence is that 'limitations upon the fruit to be gathered tend to limit the quest itself.' United States v. Poller, 43 F.2d 911, 914 (C.A.2d Cir. 1930). But privacy 'would be just as well served by a restriction on search to the even-numbered days of the month. * * * And it would have the extra advantage of avoiding hair-splitting questions. * * *' Kaplan, op. cit. supra, at 479. The 'mere evidence' limitation has spawned exceptions so numerous and confusion so great, in fact, that it is questionable whether it affords meaningful protection. But if its rejection does enlarge the area of permissible searches, the intrusions are nevertheless made after fulfilling the probable cause and particularity requirements of the Fourth Amendment and after the intervention of 'a neutral and detached magistrate. * * *' Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436. The Fourth Amendment allows intrusions upon privacy under these circumstances, and there is no viable reason to distinguish intrusions to secure 'mere evidence' from intrusions to secure fruits, instrumentalities, or contraband.
20
The judgment of the Court of Appeals is reversed.
21
Reversed.
22
Mr. Justice BLACK concurs in the result.
23
Mr. Justice FORTAS, with whom THE CHIEF JUSTICE joins, concurring.
24
While I agree that the Fourth Amendment should not be held to require exclusion frm evidence of the clothing as well as the weapons and ammunition found by the officers during the search, I cannot join in the majority's broad—and in my judgment, totally unnecessary—repudiation of the so-called 'mere evidence' rule.
25
Our Constitution envisions that searches will ordinarily follow procurement by police of a valid search warrant. Such warrants are to issue only on probable cause, and must describe with particularity the persons or things to be seized. There are exceptions to this rule. Searches may be made incident to a lawful arrest, and—as today's decision indicates—in the course of 'hot pursuit.' But searches under each of these exceptions have, until today, been confined to those essential to fulfill the purpose of the exception: that is, we have refused to permit use of articles the seizure of which could not be strictly tied to and justified by the exigencies which excused the warrantless search. The use in evidence of weapons seized in a 'hot pursuit' search or search incident to arrest satisfies this criterion because of the need to protect the arresting officers from weapons to which the suspect might resort. The search for and seizure of fruits are, of course, justifiable on independent grounds: The fruits are an object of the pursuit or arrest of the suspect, and should be restored to their true owner. The seizure of contraband has been justified on the ground that the suspect has not even a bare possessory right to contraband. See, e.g., Boyd v. United States, 116 U.S. 616, 623—624, 6 S.Ct. 524, 528—529, 29 L.Ed. 746 (1886); United States v. Kirschenblatt, 16 F.2d 202, 203, 51 A.L.R. 416 (C.A.2d Cir. 1926) (L. Hand, J.).
26
Similarly, we have forbidden the use of articles seized in such a search unless obtained from the person of the suspect or from the immediate vicinity. Since a warrantless search is justified only as incident to an arrest or 'hot pursuit,' this Court and others have held that its scope does not include permission to search the entire building in which the arrests occurs, or to rummage through locked drawers and closets, or to search at another time or place. James v. State of Louisiana, 382 U.S. 36, 86 S.Ct. 151, 15 L.Ed.2d 30 (1965); Stoner v. State of California, 376 U.S. 483, 486—487, 84 S.Ct. 889, 891—892, 11 L.Ed.2d 856 (1964); Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964); United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932); Go-Bart Importing Co. v. United States, 282 U.S. 344, 358, 51 S.Ct. 153, 158, 75 L.Ed. 374 (1931); Agnello v. United States, 269 U.S. 20, 30—31, 46 S.Ct. 4, 5—6, 70 L.Ed. 145 (1925); United States v. Kirschenblatt, supra.1
27
In the present case, the articles of clothing admitted into evidence are not within any of the traditional categories which describe what materials may be seized, either with or without a warrant. The restrictiveness of these categories has been subjected to telling criticism,2 and although I believe that we should approach expansion of these categories with the diffidence which their imposing provenance commands, I agree that the use of identifying clothing worn in the commission of a crime and seized during 'hot pursuit' is within the spirit and intendment of the 'hot pursuit' exception to the search-warrant requirement. That is because the clothing is pertinent to identification of the person hotly pursued as being, in fact, the person whose pursuit was justified by connection with the crime. I would frankly place the ruling on that basis. I would not drive an enorou § and dangerous hole in the Fourth Amendment to accommodate a specific and, I think, reasonable exception.
28
As my Brother DOUGLAS notes, post, opposition to general searches is a fundamental of our heritage and of the history of Anglo-Saxon legal principles. Such searches, pursuant to 'writs of assistance,' were one of the matters over which the American Revolution was fought. The very purpose of the Fourth Amendment was to outlaw such searches, which the Court today sanctions. I fear that in gratuitously striking down the 'mere evidence' rule, which distinguished members of this Court have acknowledged as essential to enforce the Fourth Amendment's prohibition against general searches, the Court today needlessly destroys, root and branch, a basic part of liberty's heritage.
29
Mr. Justice DOUGLAS, dissenting.
30
We start with the Fourth Amendment which provides:
31
'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' This constitutional guarantee, now as applicable to the States (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081) as to the Federal Government, has been thought, until today, to have two faces of privacy:
32
(1) One creates a zone of privacy that may not be invaded by the police through raids, by the legislators through laws, or by magistrates through the issuance of warrants.
33
(2) A second creates a zone of privacy that may be invaded either by the police in hot pursuit or by a search incident to arrest or by a warrant issued by a magistrate on a showing of probable cause.
34
The first has been recognized from early days in Anglo-American law. Search warrants, for seizure of stolen property, though having an ancient lineage, were criticized even by Coke. Institutes Bk. 4, pp. 176—177.
35
As stated by Lord Camden in Entick v. Carington, 19 How.St.Tr. 1029, 1067, even warrants authorizing seizure of stolen goods were looked upon with disfavor but 'crept into the law by imperceptible practice.' By the time of Charles II they had burst their original bounds and were used by the Star Chamber to find evidence among the files and papers of political suspects. Thus in the trial of Algernon Sidney in 1683 for treason 'papers, which were said to be found in my (Sidney's) house, were produced as another witness' (9 How.St.Tr. 818, 901) and the defendant was executed. Id., at 906—907. From this use of papers as evidence there grew up the practice of the Star Chamber empowering a person 'to search in all places, where books were printing, in order to see if the printer had a licence; and if upon such search he found any books which he suspected to be libellous against the church or state, he was to seize them, and carry them before the proper magistrate.' Entick v. Carrington, supra, at 1069. Thus the general warrant became a powerful instrument in proceedings for seditious libel against printers and authors. Ibid. John Wilkes led the campaign against the general warrant. Boyd v. United States, 116 U.S. 616, 625, 6 S.Ct. 524, 529, 29 L.Ed. 746. Wilkes won (Entick v. Carrington, supra, decided in 1765); and Lord Camden's opinion not only outlawed the general warrant (id., at 1072) but went on to condemn searches 'for evidence' with or without a general warrant:
36
'There is no process against papers in civil causes. It has been often tried, but never prevailed. Nay, where the adversary has by force or fraud got possession of your own proper evidence, there is no way to get it back but by acton .
37
'In the criminal law such a proceeding was never heard of; and yet there are some crimes, such for instance as murder, rape, robbery, and housebreaking, to say nothing of forgery and perjury, that are more atrocious than libelling. But our law has provided no paper-search in these cases to help forward the conviction.
38
'Whether this procedeth from the gentleness of the law towards criminals, or from a consideration that such a power would be more pernicious to the innocent than useful to the public, I will not say.
39
'It is very certain, that the law obligeth no man to accuse himself; because the necessary means of compelling self-accusation, falling upon the innocent as well as the guilty, would be both cruel and unjust; and it should seem, that search for evidence is disallowed upon the same principle. There too the innocent would be confounded with the guilty.' Id., at 1073.
40
Thus Lord Camden decided two things: (1) that searches for evidence violated the principle against self-incrimination; (2) that general warrants were void.
41
This decision, in the very forefront when the Fourth Amendment was adopted, underlines the construction that it covers something other than the form of the warrant1 and creates a zone of privacy which no government official may enter.
42
The complaint of Bostonians, while including the general warrants, went to the point of police invasions of personal sanctuaries:
43
"A List of Infringements and Violations of Rights' drawn up by the Boston town meeting late in 1772 alluded to a number of personal rights which had allegedly been violated by agents of the crown. The list included complaints against the writs of assistance which had been employed by royal officers in their searches for contraband. The Bostonians complained that 'our houses and even our bed chambers are exposed to be ransacked, our boxes, chests, and trunks broke open, ravaged and plundered by wretches, whom no prudent man would venture to employ even as menial servants." Rutland, The Birth of the Bill of Rights 25 (1955).
44
The debates concerning the Bill of Rights did not focus on the precise point with which we here deal. There was much talk about the general warrants and the fear of them. But there was also some reference to the sanctity of one's home and his personal belongings, even including the clothes he wore. Thus in Virginia, Patrick Henry said:
45
'The officers of Congress may come upon you now, fortified with all the terrors of paramount federal authority. Excisemen may come in multitudes; for the limitation of their numbers no man knows. They may, unless the general government be restrained by a bill of rights, or some similar restriction, go into your cellars and rooms, and search, ransack, and measure, every thing you eat, drink, and wear. They ought to be restrained within proper bounds.' 3 Elliot's Debates 448—449.
46
This indicates that the Fourth Amendment has the dual aspect that I have mentioned. Certainly the debates nowhere suggest that it was concerned only with regulating the form of warrants.
47
This is borne out by what happened in the Congress. In the House the original draft read as follows:
48
'The right of the people to be secured in their persons, houses, papers and effects, shall not be violated by warrants issuing without probable cause, supported by oath or affirmation, and not particularly describing the place to be searched and the persons or things to be seized.' 1 Annals of Cong. 754.
49
That was amended to read 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable seizures and searches,' etc. Ibid. Mr. Benson, Chairman of a Committee of Three to arrange the amendments, objected to the words 'by warrants issuing' and proposed to alter the amendment so as to read 'and no warrant shall issue.' Ibid. But Benson's amendment was defeated. Ibid. And if the story had ended there, it would be clear that the Fourth Amendment touched only the form of the warrants and the manner of their issuance. But when the Benson Committee later reported the Fourth Amendment to the House, it was in the form he had earlier proposed and was then accepted. 1 Annals of Cong. 779. The Senate agreed. Senate Journal August 25, 1789.
50
Thus it is clear that the Fourth Amendment has two faces of privacy, a conclusion emphasized by Lawson, The History and Development of the Fourth Amendment to the United States Constitution 103 (1937):
51
'As reported by the Committee of Eleven and corrected by Gerry, the Amendment was a one-barrelled affair, directed apparently only to the essentials of a valid warrant. The general principle of freedom from unreasonable search and seizure seems to have been stated only by way of premise, and the positive inhibition upon action by the Federal Government limited consequently to the issuance of warrants without probable cause, etc. That Benson interpreted it in this light is shown by his argument that although the clause was good as far as it went, it was not sufficient, and by the change which he advocated to obviate this objection. The provision as he proposed it contained two clauses. The general right of security from unreasonable search and seizure was given a sanction of its own and the amendment thus intentionally given a broader scope. That the prohibition against 'unreasonable searches' was intended, accordingly, to cover something other than the form of the warrant is a question no longer left to implication to be derived from the phraseology of the Amendment.' Lord Camden's twofold classification of zones of privacy was said by Cooley to be reflected in the Fourth Amendment:
52
'The warrant is not allowed for the purpose of obtaining evidence of an intended crime; but only after lawful evidence of an offence actually committed. Nor even then is it allowable to invade one's privacy for the sole purpose of obtaining evidence against him, except in a few special cases where that which is the subject of the crime is supposed to be concealed, and the public or the complainant has an interest in it or in its destruction.' Constitutional Limitations 431—432 (7th ed. 1903).
53
And that was the holding of the Court in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, decided in 1886. Mr. Justice Bradley reviewed British history, including Entick v. Carrington, supra, and American history under the Bill of Rights and said:
54
'The search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, are totally different things from a search for and seizure of a man's private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him. The two things differ toto coelo. In the one case, the government is entitled to the possession of the property; in the other it is not.' Id., as 623.
55
What Mr. Justice Bradley said about stolen or forfeited goods or contraband is, of course, not accurate if read to mean that they may be seized at any time even without a warrant or not incident to an arrest that is lawful. The right to seize contraband is not absolute. If the search leading to discovery of an illicit article is not incidental to a lawful arrest or not authorized by a search warrant, the fact that contraband is discovered does not make the seizure constitutional. Trupiano v. United States, 334 U.S. 699, 705, 68 S.Ct. 1229, 1232, 92 L.Ed. 1663; McDonald v. United States, 335 US. 451, 69 S.Ct. 191, 93 L.Ed. 153; Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 171, 4 L.Ed.2d 134; Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142; Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.
56
That is not our question. Our question is whether the Government, though armed with a proper search warrant or though making a search incident to an arrest, may seize, and use at the trial, testimonial evidence, whether it would otherwise be barred by the Fifth Amendment or would be free from such strictures. The teaching of Boyd is that such evidence, though seized pursuant to a lawful search, is inadmissible.
57
That doctrine had its full flowering in Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647, where an opinion was written by Mr. Justice Clarke for a unanimous Court that included both Mr. Justice Holmes and Mr. Justice Brandeis. The prosecution was for defrauding the Government under procurement contracts. Documents were taken from defendant's business office under a search warrant and used at the trial as evidence against him. Stolen or forged papers could be so seized, the Court said; so could lottery tickets; so could contraband; so could property in which the public had an interest, for reasons tracing back to warrants allowing the seizure of stolen property. But the papers or documents fell in none of those categories and the Court therefore held that even though they had been taken under a warrant, they were inadmissible at the trial as not even a warrant, though otherwise proper and regular, could be used 'for the purpose of making search to secure evidence' of a crime. Id., at 309, 41 S.Ct., at 265. The use of those documents against the accused might, of course, violate the Fifth Amendment. Id., at 311, 41 S.Ct., at 265. But whatever may be the intrinsic nature of the evidence, the owner is then 'the unwilling source of the evidence' (id., at 306, 41 S.Ct., at 264), there being no difference so far as the Fifth Amendment is concerned 'whether he be obliged to supply evidence against himself or whether such evidence be obtained by an illegal search of his premises and seizure of his private papers.' Ibid.
58
We have, to be sure, breached that barrier, Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, being a conspicuous example. But I dissented then and renew my opposing view at this time. That which is taken from a person without his consent and used as testimonial evidence violates the Fifth Amendment.
59
That was the holding in Gouled; and that was the line of authority followed by Judge Simon Sobeloff, writing for the Court of Appeals for reversal in this case. 363 F.2d 647. As he said, even if we assume that the search was lawful, the articles of clothing seized were of evidential value only and under Gouled could not be used at the trial against petitioner. As he said, the Fourth Amendment guarantees the right of the people to be secure 'in their persons, houses, papers, and effects, against unreasonable searches and seizures.' Articles of clothing are covered as well as papers. Articles of clothing may be of evidential value as much as documents or papers.
60
Judge Learned Hand stated a part of the philosophy of the Fourth Amendment in United States v. Poller, 2 Cir., 43 F.2d 911, 914:
61
'(I)t is only fair to observe that the real evil aimed at by the Fourth Amendment is the search itself, that invasion of a man's privacy which consists in rummaging about among his effects to secure evidence against him. If the search is permitted at all, perhaps it does not make so much difference what is taken away, since the officers will ordinarily not be interested in what does not incriminate, and there can be no sound policy in protecting what does. Nevertheless, limitations upon the fruit to be gathered tend to limit the quest itself * * *.'
62
The right of privacy protected by the Fourth Amendment relates in part of course to the precincts o t he home or the office. But it does not make them sanctuaries where the law can never reach. There are such places in the world. A mosque in Fez, Morocco, that I have visited, is by custom a sanctuary where any refugee may hide, safe from police intrusion. We have no such sanctuaries here. A policeman in 'hot pursuit' or an officer with a search warrant can enter any house, any room, any building, any office. The privacy of those places is of course protected against invasion except in limited situations. The full privacy protected by the Fourth Amendment is, however, reached when we come to books, phamphlets, papers, letters, documents, and other personal effects. Unless they are contraband or instruments of the crime, they may not be reached by any warrant nor may they be lawfully seized by the police who are in 'hot pursuit.' By reason of the Fourth Amendment the police may not rummage around among these personal effects, no matter how formally perfect their authority may appear to be. They may not seize them. If they do, those articles may not be used in evidence. Any invasion whatsoever of those personal effects is 'unreasonable' within the meaning of the Fourth Amendment. That is the teaching of Entick v. Carrington, Boyd v. United States, and Gouled v. United States.
63
Some seek to explain Entick v. Carrington on the ground that it dealt with seditious libel and that any search for political tracts or letters under our Bill of Rights would be unlawful per se because of the First Amendment and therefore 'unreasonable' under the Fourth. That argument misses the main point. A prosecution for seditious libel would of course be unconstitutional under the First Amendment because it bars laws 'abridging the freedom of speech, or of the press.' The First Amendment also has a penumbra, for while it protects only 'speech' and 'press' it also protects related rights such as the right of association. See NAACP v. State of Alabama, 357 U.S. 449, 460, 462, 78 S.Ct. 1163, 1170, 1171, 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; and NAACP v. Button, 371 U.S. 415, 430—431, 83 S.Ct. 328, 336—337, 9 L.Ed.2d 405. So it could be held, quite apart from the Fourth Amendment, that any probing into the area of opinions and beliefs would be barred by the First Amendment. That is the essence of what we said in Watkins v. United States, 354 U.S. 178, 197, 77 S.Ct. 1173, 1184, 1 L.Ed.2d 1273:
64
'Clearly, an investigation is subject to the command that the Congress shall make no law abridging freedom of speech or press or assembly. While it is true that there is no statute to be reviewed, and that an investigation is not a law, nevertheless an investigation is part of lawmaking. It is justified solely as an adjunct to the legislative process. The First Amendment may be invoked against infringement of the protected freedoms by law or by lawmaking.'
65
But the privacy protected by the Fourth Amendment is much wider than the one protected by the First. Boyd v. United States was a forfeiture proceeding under the customs revenue law and the paper held to be beyond the reach of the Fourth Amendment was an invoice covering the imported goods. 116 U.S., at 617—619, 638, 6 S.Ct., at 525—526, 536. And as noted, Gouled v. United States involved a prosecution for defrauding the Government under procurement contracts and the papers held protected against seizure, even under a technically proper warrant, were (1) an unexecuted form of contract between defendant and another person; (2) a written contract signed by defendant and another person; and (3) a bill for disbursement and professional services rendered by the attorney to the defendant. 255 U.S., at 306—307, 41 S.Ct., at 263—264.
66
The constitutional philosophy is, I think, clear. The personal effects ad possessions of the individual (all contraband and the like excepted) are sacrosanct from prying eyes, from the long arm of the law, from any rummaging by police. Privacy involves the choice of the individual to disclose or to reveal what he believes, what he thinks, what he possesses. The article may be a nondescript work of art, a manuscript of a book, a personal account book, a diary, invoices, personal clothing, jewelry, or whatnot. Those who wrote the Bill of Rights believed that every individual needs both to communicate with others and to keep his affairs to himself. That dual aspect of privacy means that the individual should have the freedom to select for himself the time and circumstances when he will share his secrets with others and decide the extent of that sharing.2 This is his prerogative not the States'. The Framers, who were as knowledgeable as we, knew what police surveillance meant and how the practice of rummaging through one's personal effects could destroy freedom.
67
It was in that tradition that we held in Griswold v. State of Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, that lawmakers could not, as respects husband and wife at least, make the use of contraceptives a crime. We spoke of the pronouncement in Boyd v. United States that the Fourth and Fifth Amendments protected the person against all governmental invasions 'of the sanctity of a man's home and the privacies of life.' 116 U.S., at 630, 6 S.Ct., at 532. We spoke of the 'right to privacy' of the Fourth Amendment upheld by Mapp v. Ohio, 367 U.S. 643, 656, 81 S.Ct. 1684, 1692, 6 L.Ed.2d 1081, and of the many other controversies 'over these penumbral rights of 'privacy and repose." 381 U.S., at 485, 85 S.Ct., at 1682. And we added:
68
'Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.
69
'We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.' Id., at 485—486, 85 S.Ct., at 1682.
70
This right of privacy, sustained in Griswold, is kin to the right of privacy created b t he Fourth Amendment. That there is a zone that no police can enter—whether in 'hot pursuit' or armed with a meticulously proper warrant—has been emphasized by Boyd and by Gouled. They have been consistently and continuously approved.3 I would adhere to them and leave with the individual the choice of opening his private effects (apart from contraband and the like) to the police or keeping their contents a secret and their integrity inviolate. The existence of that choice is the very essence of the right to privacy. Without it the Fourth Amendment and the Fifth are ready instruments for the police state that the Framers sought to avoid.
1
Harris v. United States, 331 U.S. 145, 154, 67 S.Ct. 1098, 1103, 91 L.Ed. 1399; see also Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; United States v. Lefkowitz, 285 U.S. 452, 465—466, 52 S.Ct. 420, 423—424, 76 L.Ed. 877; United States v. Rabinowitz, 339 U.S. 56, 64, n. 6, 70 S.Ct. 430, 434, 94 L.Ed. 653; Abel v. United States, 362 U.S. 217, 234—235, 80 S.Ct. 683, 691—695, 4 L.Ed.2d 668.
2
Hayden did not appeal from his conviction. He first souht relief by an application under the Maryland Post Conviction Procedure Act which was denied without hearing. The Maryland Court of Appeals reversed and remanded for a hearing. 233 Md. 613, 195 A.2d 692. The trial court denied relief after hearing, concluding 'that the search of his home and the seizure of the articles in question were proper.' His application for federal habeas corpus relief resulted, after hearing in the District Court, in the same conclusion.
3
The State claims that, since Hayden failed to raise the search and seizure question at trial, he deliberately bypassed state remedies and should be denied an opportunity to assert his claim in federal court. See Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408; Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837. Whether or not the Maryland Court of Appeals actually intended, when it reversed the state trial court's denial of post-conviction relief, that Hayden be afforded a hearing on the merits of his claim, it is clear that the trial court so understood the order of the Court of Appeals. A hearing was held in the state courts, and the claim denied on the merits. In this circumstance, the Fourth Circuit was correct in rejecting the State's deliberate-bypassing claim. The deliberate-bypass rule is applicable only 'to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies.' Fay v. Noia, supra, 372 U.S., at 438, 83 S.Ct., at 849. (Emphasis added.) But see Nelson v. People of State of California, 346 F.2d 73, 82 (C.A.9th Cir. 1965).
4
The state postconviction court found that Mrs. Hayden 'gave the policeman permission to enter the home.' The federal habeas corpus court stated it 'would be justified in accepting the findings of historical fact made by Judge Sodaro on that issue * * *,' but concluded that resolution of the issue would be unnecessary, because the officers were 'justified in entering and searching the house for the felon, for his weapons and for the fruits of the robbery.'
5
The officer was asked in the District Court whether he found the money. He answered that he did not, and stated: 'By the time I had gotten down into the basement I heard someone say upstairs, 'There's a man up here." He was asked: 'What did you do then?' and answered: 'By this time I had already discovered some clothing which fit the description of the clothing worn by the subject that we were looking for. * * *' It is clear from the record and from the findings that the weapons were found after or at the same time the police found Hayden.
6
People v. Thayer, 63 Cal.2d 635, 47 Cal.Rptr. 780, 408 P.2d 108, cert. denied, 384 U.S. 908, 86 S.Ct. 1342, 16 L.Ed.2d 361; State v. Bisaccia, 4 N .J. 504, 213 A.2d 185. Compare United States v. Poller, 43 F.2d 911, 914 (C.A.2d Cir. 1930).
7
E.g., Chafee, The Progress of the Law, 1919—1922, 35 Harv.L.Rev. 673 (1922); Kamisar, The Wiretapping-Eavesdropping Problem: A Professor's View, 44 Minn.L.Rev. 891, 914—918 (1960); Kaplan, Search and Seizure: A No-Man's Land in the Criminal Law, 49 Calif.L.Rev. 474, 478 (1961); Comment, 45 N.C.L.Rev. 512 (1967); Comment, 66 Col.L.Rev. 355 (1966); Comment, 20 U.Chi.L.Rev. 319 (1953); Comment, 31 Yale L.J. 518 (1922). Compare, e.g., Fraenkel, Concerning Searches and Seizures, 34 Harv.L.Rev. 361 (1921); Note, 54 Geo.L.J. 593 (1966).
8
This Court has approved the seizure and introduction of items having only evidential value without, however, considering the validity of the distinction rejected today. See Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908; Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730.
9
E.g., Stanford v. State of Texas, 379 U.S. 476, 481—485, 85 S.Ct. 506, 509—512, 13 L.Ed.2d 431; Marcus v. Search Warrants, etc., 367 U.S. 717, 724—729, 81 S.Ct. 1708, 1712—1715, 6 L.Ed.2d 1127; Frank v. State of Maryland, 359 U.S. 360, 363—365, 79 S.Ct. 804, 807—808, 3 L.Ed.2d 877. See generally Lasson, The History and Development of the Fourth Amendment to the United States Constitution (1937); Landynski, Search and Seizure and the Supreme Court (1966).
10
Both Weeks and Adams were written by Justice Day, and joined by several of the same Justices, including Justice Holmes.
11
At common law the Government did assert a superior property interest when it searched lawfully for stolen property, since the procedure then followed made it necessary that the true owner swear that his goods had been taken. But no such procedure need be followed today; the Government may demonstrate probable cause and lawfully search for stolen property even though the true owner is unknown or unavailable to request and authorize the Government to assert his interest. As to instrumentalities, the Court in Gouled allowed their seizure, not because the Government had some property interest in them (under the ancient, fictitious forfeiture theory), but because they could be used to perpetrate further crime. 255 U.S., at 309, 41 S.Ct., at 265. The same holds true, of course, for 'mere evidence'; the prevention of crime is served at least as much by allowing the Government to identify and capture the criminal, as it is by allowing the seizure of his instrumentalities. Finally, contraband is indeed property in which the Government holds a superior interest, but only because the Government decides to vest such an interest in itself. And while there may be limits to what may be declared contraband, the concept is hardly more than a form through which the Government seeks to prevent and deter crime.
12
Gouled was decided on certified questions. The only question which referred to the Espionage Act of 1917 stated: 'Are papers of * * * evidential value * * *, when taken under search warrants issued pursuant to Act of June 15, 1917, from the house or office of the person so suspected, seized and taken in violation of the Fourth Amendment?' Gouled v. United States, No. 250, Oct. Term, 1920, Certificate, p. 4. Thus the form in which the case was certified made it difficult if not impossible 'to limit the decision to the sensible proposition of statutory construction, that Congress had not as yet authorized the seizure of purely evidentiary material.' Chafee, op. cit. supra, at 699. The Government assumed the validity of petitioner's argument that Entick v. Carrington, Boyd v. United States, and other authorities established the constitutional illegality of seizures of private papers for use as evidence. Gouled v. United States, supra, Brief for the United States, p. 50. It argued, complaining of the absence of a record, that the papers introduced in evidence were instrumentalities of crime. The Court ruled that the record before it revealed no government interest in the papers other than an evidence against the accused. 255 U.S., at 311, 41 S.Ct., at 265.
Significantly, Entick v. Carrington itself has not been read by the English courts as making unlawful the siezure of all papers for use as evidence. See Dillon v. O'Brien, 20 L.R.Ir. 300; Elias v. Pasmore, (1934) 2 K.B. 164. Although Dillon, decided in 1887, involved instrumentalities, the court did not rely on this fact, but rather on 'the interest which the State has in a person guilty (or reasonably believed to be guilty) of a crime being brought to justice. * * *' 20 L.R.Ir., at 317.
1
It is true that this Court has not always been as vigilant as it should to enforce these traditional and extremely important restrictions upon the scope of such searches. See United States v. Rabinowitz, 339 U.S. 56, 68—86, 70 S.Ct. 430, 436—444, 94 L.Ed. 653 (1950) (Frankfurter, J., dissenting); Harris v. United States, 331 U.S. 145, 155-198, 67 S.Ct. 1098, 1103—1120, 91 L.Ed. 1399 (1947) (dissenting opinions).
2
See, e.g., People v. Thayer, 63 Cal.2d 635, 47 Cal.Rptr. 780, 408 P.2d 108 (Traynor, C.J.) (1965), cert. denied, 384 U.S. 908, 86 S.Ct. 1342, 16 L.Ed.2d 361 (1966); Kaplan, Search and Seizure: A No-Man's Land in the Criminal Law, 49 Calif.L.Rev. 474, 478 (1961).
1
The Virginia Declaration of Rights, June 12, 1776, in its Article 10 proclaimed only against 'general warrants.' See Rutland, The Birth of the Bill of Rights 232 (1955). And the definition of the general warrant included not only a license to search for everything in a named place but to search all and any places in the discretion of the officers. Frisbie v. Butler, 1 Kirby 213 (Conn.). See generally Quincy's Mass.Rep. 1761—1772 Appendix I for the forms of these writs.
2
This concept of the right of privacy protected by the Fourth Amendment is mirrored in the cases involving collateral aspects of the problem presented in this case:
'It has, similarly, been held that a defendant cannot complain of the seizure of books and papers neither his own, nor in his possession. It is also the well-settled rule that where the papers are public records the defendant's custody will not avail him against their seizure. Where papers are taken out of the custody of one not their owner, it seems that such person can object if there has been no warrant, or if the warrant was directed to him, but not if the warrant is directed to the owner. If the defendant's property is lawfully out of his possession it makes no difference by what means it comes into the Government's hands as there has been no compulsion exercised upon him. But the privilege extends to letters in the mails. The privilege extends to the office as well as the home.
'On the other hand, to enable a person to claim the privilege, it is not necessary that he be a party to any pending criminal proceeding. He can object to the illegal seizure of his own property and resist a forcible production of it even if he is only called as a witness.
'Nor must a person be a citizen to be entitled to the protection of the Fourth Amendment. * * *' Fraenkel, Concerning Searches and Seizures, 34 Harv.L.Rev. 361, 375—376.
3
See, e.g., Carroll v. United States, 267 U.S. 132, 149 150, 45 S.Ct. 280, 283—284, 69 L.Ed. 543; United States v. Lefkowitz, 285 U.S. 452, 464—466, 52 S.Ct. 420, 423—424, 76 L.Ed. 877; Davis v. United States, 328 U.S. 582, 590, n. 11, 66 S.Ct. 1256, 1260, 90 L.Ed. 1453; 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, n. 6, 70 S.Ct. 430, 434, 94 L.Ed. 653; Abel v. United States, 362 U.S. 217, 234—235, 80 S.Ct. 683, 694—695, 4 L.Ed.2d 668.
| 01
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387 U.S. 428
87 S.Ct. 1712
18 L.Ed.2d 869
Stewart L. UDALL, Secretary of the Interior, Petitioner,v.FEDERAL POWER COMM'N et al. WASHINGTON PUBLIC POWER SUPPLY SYSTEM, Petitioner, v. FEDERAL POWER COMM'N et al.
Nos. 463 and 462.
Argued April 11 and 12, 1967.
Decided June 5, 1967.
[Syllabus from pages 428-429 intentionally omitted]
Louis F. Claiborne, Northcutt Ely, Washington, D.C., for petitioners.
Richard Solomon and Hugh Smith, Washington, D.C., for respondents.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
The Federal Power Commission has awarded Pacific Northwest Power Company (a joint venture of four private power companies) a license to construct a hydroelectric power project at High Mountain Sheep, a site on the Snake River, a mile upstream from its confluence with the Salmon. 31 F.P.C. 247, 1051. The Court of Appeals approved the action, 123 U.S.App.D.C. 209, 358 F.2d 840; and we granted the petitions for certiorari. 385 U.S. 926, 927, 87 S.Ct. 286, 17 L.Ed.2d 209.
2
The primary question in the cases involves an interpretation of § 7(b) of the Federal Water Power Act of 1920, as amended by the Federal Power Act, 49 Stat. 842, 16 U.S.C. § 800(b), which provides:
3
'Whenever, in the judgment of the Commission, the development of any water resources for public purposes should be undertaken by the United States itself, the Commission shall not approve any application for any project affecting such development, but shall cause to be made such examinations, surveys, reports, plans, and estimates of the cost of the proposed development as it may find necessary, and shall submit its findings to Congress with such recommendations as it may find appropriate concerning such development.'
4
The question turns on whether § 7(b) requires a showing that licensing of a private, state, or municipal agency1 is a satisfactory alternative to federal development. We put the question that way because the present record is largely silent on the relative merits of federal and nonfederal development. What transpired is as follows:
5
Both Pacific Northwest and Washington Public Power Supply System, allegedly a 'municipality' under § 4(e) and under § 7(a) of the Act,2 filed applications for licenses on mutually exclusive sites; and they were consolidated for hearing. Before the hearing the Commission solicited the views of the Secretary of the Interior. The Secretary urged postponement of the licensing of either project while means of protecting the salmon and other fisheries were studied. That was on March 15, 1961. But the hearings went forward and on June 28, 1962, after the record before the Examiner was closed, but before he rendered his decision, the Secretary wrote the Commission urging it to recommend to Congress the consideration of federal construction of High Mountain Sheep. The Commission reopened the record to allow the Secretary's letter to be incorporated and invited the parties to file supplemental briefs in response to it. On October 8, 1962, the Examiner rendered his decision, recommending that Pacific Northwest receive the license. He disposed of the issue of federal development on the ground that there 'is no evidence in this record that Federal development will provide greater flood control, power benefits, fish passage, navigation or recreation; and there is substantial evidence to the contrary.'
6
The Secretary asked for leave to intervene and to file exceptions to the Examiner's decision.3 The Commission allowed intervention 'limited to filing of exceptions to the Presiding Examiner's decision and participation in such oral argument as might subsequently be ordered.'
7
The Secretary filed exceptions and participated in oral argument. The Commission on February 5, 1964, affirmed the Examiner saying that it agreed with him 'that the record supports no reason why federal development should be superior,' observing that '(w)hile we have extensive material before us on the position of the Secretary of the Interior, there is no evidence in the record presented by him to support his position.' 31 F.P.C., at 275.
8
It went on to say that it found 'nothing in this record to indicate' that the public purposes of the dam (flood control, etc.) would not be served as adequately by Pacific Northwest as they would under federal development. and it added, 'We agree that the Secretary (or any single operator) normally would have a superior ability to co-ordinate the operations of HMS with the other affected projects on the river. But there is no evidence upon which we can determine the scope or the seriousness of this matter in the context of a river system which already has a number of different project operators and an existing co-ordination system, i.e., the Northwest Power Pool.' Id., at 276—277.
9
The Secretary petitioned for a rehearing, asking that the record be opened to permit him to supply the evidentiary deficiencies. A rehearing, but not a reopening of the record, was granted; and the Commission shortly reaffirmed its original decision with modifications not material here.
10
The issue of federal development has never been explored in this record. The applicants introduced no evidence addressed to that question; and the Commission denied the Secretary an opportunity to do so though his application was timely. The issue was of course briefed and argued; yet no factual inquiry was undertaken. Section 7(b) says 'Whenever, in the judgment of the Commission, the development of any water resources for public purposes should be undertaken by the United States itself,' the Commission shall not approve other applications. Yet the Commission by its rulings on the applications of the Secretary to intervene and to reopen precluded it from having the informed judgment that § 7(b) commands.
11
We indicate no judgment on the merits. We do know that on the Snake-Columbia waterway between High Mountain Sheep and the ocean, eight hydroelectric dams have been built and another authorized. These are federal projects; and if another dam is to be built, the question whether it should be under federal auspices looms large. Timed releases of stored water at High Mountain Sheep may affect navigability; they may affect hydroelectric production of the downstream dams when the river level is too low for the generators to be operated at maximum capacity; they may affect irrigation; and they may protect salmon runs when the water downstream is too hot or insufficiently oxygenated. Federal versus private or municipal control may conceivably make a vast difference in the functioning of the vast river complex.4
12
Beyond that is the question whether any dam should be constructed.
13
As to this the Secretary in his letter to the Commission dated November 21, 1960, in pleading for a deferment of consideration of applications stated:
14
'In carrying out this Department's responsibility for the protection and conservation of the vital Northwest anadromous fishery resource and in light of the fact that the power to be available as a result of ratification of the proposed Columbia River treaty with Canada will provide needed time which can be devoted to further efforts to resolve the fishery problems presently posed by these applications, we believe that it is unnecessary at this time and for some years to come to undertake any project in this area.
15
'You may be assured that the Fish and Wildlife Service of this Department will continue, with renewed emphasis, the engineering and research studies that must be done before we can be assured that the passage of anadromous fish can be provided for at these proposed projects.'
16
Since the cases must be remanded to the Commission, it is appropriate to refer to that aspect of the cases.
17
Section 10(a) of the Act5 provides that 'the project adopted' shall be such 'as in the judgment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway * * * and for other beneficial public uses, including recreational purposes'. (Emphasis added.)
18
The objective of protecting 'recreational purposes' means more than that the reservoir created by the dam will be the best one possible or practical from a recreational viewpoint. There are already eight lower dams on this Columbia River system and a ninth one authoried ; and if the Secretary is right in fearing that this additional dam would destroy the waterway as spawning grounds for anadromous fish (salmon and steelhead) or seriously impair that function, the project is put in an entirely different light. The importance of salmon and steelhead in our outdoor life as well as in commerce6 is so great that there certainly comes a time when their destruction might necessitate a halt in so-called 'improvement' or 'development' of waterways. The destruction of anadromous fish in our western waters is so notorious7 that we cannot believe that Congress through the present Act authorized their ultimate demise.
19
We need not speculate as to what the 1920 purpose may have been. For the 1965 Anadromous Fish Act, 79 Stat. 1125, 16 U.S.C. §§ 757a—757f (1964 ed., Supp. II), is on this aspect of the present case in pari materia with the 1920 Act. We know from § 1 of the 1965 Act that Congress is greatly concerned with the depletion of these fish resources 'from water resources developments and other causes.' See also H.R.Rep. No. 1007, 89th Cong., 1st Sess., pp. 2—5; S.Rep. No. 860, 89th Cong., 1st Sess.; U.S. Code Congressional and Administrative News, 1965, p. 3837; Anadromous Fish, Hearings before the Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries, 89th Cong., 1st Sess., 133; Anadromous Fish, Hearings before the Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries, 88th Cong., 2d Sess., 11. The rapid depletion of the Nation's anadromous fish resources led Congress to enact the Anadromous Fish Act which authorizes federal-state cooperation for the conservation, development, and enhancement of the Nation's anadromous fish resources and to prevent their depletion from various causes including water resources development. In passing the Act, Congress was well aware that the responsibility for the destruction of the anadromous fish population partially lies with the 'improvement' and 'development' of water resources. It directed the Secretary of the Interior 'to conduct such studies and make such recommendations as the Secretary determines to be appropriate regarding the development and management of any stream or other body of water for the conservation and enhancement of anadromous fishery resources.' § 2.
20
Mr. Justice Holmes once wrote that 'A river is more than an amenity, it is a treasure.'8 State of New Jersey v. State of New York, 283 U.S. 336, 342, 51 S.Ct. 478, 479, 75 L.Ed. 1104. That dictum is relevant here for the Commission under § 10 of the 1920 Act, as amended, must take into consideration not only hydroelectric power, navigation, and flood control, but also the 'recreational purposes' served by the river. And, as we have noted, the Secretary of the Interior has a mandate under the 1965 Act to study recommendations concerning water development programs for the purpose of the conservation of anadromous fish. Thus apart from § 7(b) of the 1920 Act, as aen ded, the Secretary by reason of § 2 of the 1965 Act comes to the Federal Power Commission with a special mandate from Congress, a mandate that gives him special standing to appear, to intervene, to introduce evidence on the proposed river development program, and to participate fully in the administrative proceedings.
21
Fishing is obviously one recreational use of the river and it also has vast commercial implications as the legislative history of the 1965 Act indicates. The Commission, to be sure, did not wholly neglect this phase of the problem. In its report it adverted to the anadromous fish problem, stating that it was 'highly controversial' and was not 'clearly resolved on record.' The reservoir is 'the most important hazard' both to upstream migrants and downstream migrants. Upstream migrants can be handled quite effectively by fish ladders. But those traveling downstream must go through the turbines; and their mortality is high. Moreover, Chinook salmon are 'basically river fish and do not appear to adapt to the different conditions presented by a reservoir.' 31 F.P.C. at 260. The ecology of a river is different from the ecology of a reservoir built behind a dam. What the full effect on salmon will be is not known. But we get a glimmering from the Commission's report. As to this the Commission said:
22
'A reservoir exhibits a peculiar thermal structure. During the winter it is homogeneous with regard to temperature, but as the season advances a horizontal stratification results with the colder water sinking lower. Since Salmon River water is colder than Snake River water, it is possible, if not probable, that in the Nez Perce reservoir the water from the two rivers would be found in separate layers and be drawn off at different times. Presumably the upstream migrants reaching fish ladders might at one time be presented with water from one river and at another time water from the other river. If water quality is important in attracting the upstream migrants to their proper streams, as many experts believe, this stratification would be a source of confusion and delay. Also a source of confusion to the upstream migrants would be the predicted tendency shown by the record for water from the Salmon River arm of the Nez Perce reservoir to flow up the Snake River arm and vice versa. Again the fish are faced with a complicated problem in finding their way.
23
'The velocity of flow in the Nez Perce or HMS reservoir would be very low compared with the free flowing stream or even cmp ared to the flow in the reservoir of the McNary dam on the Columbia. Since the upstream migrants follow water flow and downstream migrants are carried by current, such low velocities offer a further obstacle to the passage of anadromous fish.
24
'The record also shows that during the summer months the oxygen content of the water in the reservoir at the lower levels will fall to amounts which are dangerously insufficient for salmon. The decrease in oxygen content appears to be due to be decomposed sinking dead organisms (plankton) from the upper layers of water. The record indicates that salmon require an oxygen content of approximately five parts per million, yet the oxygen content at the 250—350 foot level would fall in August to less than three parts per million.' 31 F.P.C., at 261.
25
The Commission further noted that some salmon remain in the reservoir due to 'loss of water velocity or accumulation of dissolved salts' and are lost 'as perpetrators of the species.' But it did not have statistics showing the loss of the downstream migrants as a result of passing through the turbines. We are told from studies of the Bureau of Commercial Fisheries that the greatest downstream migration occurs at night when turbine loads are lower.9 We are told from these studies that the effect of dams on the downstream migration of salmon and steelhead may be disastrous.10 It is reported that unless practical alternatives are designed, such as the collection of juvenile fish above the dams and their transportation below it, we may witness an inquest on a great industry and a great 'recreational' asset of the Nation.
26
In his letter of November 21, 1960, the Secretary of the Interior noted the adverse effects this present project would have on anadromous fish, that the facilities proposed to protect the fish were 'unproved,' and that 'conservation in the fullest sense calls for a deferral while full advantage is taken of the opportunity presented by Canadian storage and Libby (Dam).' The Commission admitted that 'high dams and reservoirs present major obstacles to anadromous fish,' that it was not optimistic 'as to the efficacy of fish passage facilities on high dams,' and concluded with the forlorn statement that, 'We can hope for the best and we will continue to insist that any licensee building a high dam at a site which presumably involves major fish runs do everything possible within the limits of reasonable expense to preserve the fish runs. But as of now we understandably must assume that the best efforts will be only partly successful and that real damage may and probably will be done to any such fish runs.' 31 F.P.C., at 262.
27
Equally relevant is the effect of the project on wildlife. In his letter of November 21, 1960, the Secretary of the Interior noted that the areas of the proposed projects were important wildlife sanctuaries, inhabited by elk, deer, partridge, a variety of small game and used by ducks, geese, and mourning doves during migration. He concluded that 'adverse effects of the proposed project (HMS) on wildlife could (not) be mitigated.' Letter of November 21, 1960 (Joint App. 133) as corrected by letter of December 7, 1960 (J.A. 137). The Secretary concluded that 'Several thousand acres of mule deer range would be inundated and there would be a moderate reduction in the number of deer as a result of loss of range. There would be losses of upland game, fur animals, and waterfowl. Reservoir margins would be barren and unattractive to all wildlife groups. Waterfowl use of the reservoir would be insignificant. There does not appear to be any feasible means of mitigating wildlife losses.'
28
The Fish and Wildlife Coordination Act, 48 Stat. 401, as amended, 72 Stat. 563, 16 U.S.C. § 661 et seq., establishes a national policy of 'recognizing the vital contribution of our wildlife resources to the Nation, the increasing public interest and significance thereof due to expansion of our national economy and other factors, and to provide that wildlife conservation shall receive equal consideration and be coordinated with other features of water-resource development programs * * *.' Section 2(a), 16 U.S.C. § 662(a), provides that an agency evaluating a license under which 'the waters of any stream or other body of water are proposed * * * to be impounded' 'first shall consult with the United States Fish and Wildlife Service, Department of the Interior * * * with a view to the conservation of wildlife resources by preventing loss of and damage to such resources * * *.' Certainly the wildlife conservation aspect of the project must be explored and evaluated.
29
These factors of the anadromous fish and of other wildlife may indeed to allimportant in light of the alternate sources of energy that are emerging.
30
In his letter of November 21, 1960, the Secretary noted that, due to increased power resources, the projects could be safely deferred. 'These projects could extend the time still further, as could also be the case in the event nuclear power materialized at Hanford in the 1960—1970 period. This possibility, as you know, has been under intensive study by your staff for the Atomic Energy Commission * * *.'
31
The urgency of the hydroelectric power at High Mountain Sheep was somewhat discounted by the Secretary in his petition to intervene:
32
'Power needs of the Northwest do not require immediate construction of the High Mountain Sheep Project. One of the reasons which leads the Secretary to intervene now is that the Examiner's decision of October 10, 1962, was handed down just prior to Congressional action which substantially altered the federal power resource program of the Pacific Northwest. This Congressional action requires a complete re-examination and re-appraisement of the conclusions stated as the basis for the Examiner's findings.
33
'The action of Congress in the session just concluded has made provisions for new federal power producing facilities. Brue(e)s Eddy Dam, with a peak capacity of 345,000 KW, was authorized the received an appropriation for the start of construction in Fiscal Year 1963. Asotin Dam, with a peak capacity of 331,000 KW, was also authorized. Little Goose Dam, with a peak capacity of 466,000 KW, which had previously been authorized, received an appropriation for the start of construction in 1963. Most important of all, generation at the Hanford Thermal Project, which would add approximately 905,000 kilowatts to the Northwest's power resources was also approved.
34
'There are other possibilities regarding new power sources which have reasonable prospects of realization. They include Canadian storage, realization of which is dependent upon consummation of the Canadian Treaty. Additional firm capacity which would accrue to the United States from such storage would be 1,300,000 kilowatts. In addition, the Treaty would allow the construction of Libby Dam which would initially have a capacity of 397,000 kilowatts. There is also the possibility of the availability in the Unit-States of power from the Canadian entitlement under the Treaty of 1,300,000 kilowatts. Plans are also under way for construction of a 500,000 kilowatt steam plant by Kittitas PUD and Grant County PUD. A number of different agencies have proposed the construction of the Pacific Northwest-Southwest transmission intertie which, by electrical integration, would add an additional 400,000 kilowatts of firm capacity for the Pacific Northwest.
35
'The total power resource of the area is therefore predictably in excess of all foreseeable requirements thereon for the period through 1968—1969 and sufficient to meet all requirements until at least 1972—1973 and potentially for years beyond that date. The addition of High Mountain Sheep Dam will not be needed until at least 1972—1973, and construction should be planned to bring it into production at that time or later as the developing power resource picture indicates.
36
'New generating facilities, which are not correlated to the power resources and power demands within the area of the marketing responsibility of BPA necessarily result in surpluses of power on the federal system which is the basic wholesale supplier of power in the area and thereby result in financial deficits on the federal marketing system. In view of the role of the Federal system as the base supplier for the area, this threatens the stability of the area's permanent resources the hence of the area's economy. The High Mountain Sheep project at this time would have such an effect.'
37
We are also told that hydroelectric power promises to occupy a relatively small place in the world's supply of energy. It is estimated that when the world's population reaches 7,000,000,000 as it will in a few decades—the total energy requirement11 will be 70,000,000,000 metric tons of coal or equivalent annually and that it will be supplied as follows: By 1980 nuclear energy 'should represent a significant proportion of world power production.' Id., at 109. By the end of the century 'nuclear energy may account for about one-third of our total energy consumption.' Ibid. 'By the middle of the next century it seems likely that most of our energy needs will be satisfied by nuclear energy.' Id., at 110.
38
Some of these time schedules are within the period of the 50-year licenses granted by the Commission.
39
Nuclear energy is coming to the Columbia River basin by 1975. For plans are afoot to build a plant on the Trogan site, 14 miles north of St. Helens. This one plant will have a capacity of 1,000,000 kws. This emphasizes the relevancy of the Secretary's reference to production and distribution of nuclear energy at the Hanford Thermal Project which he called 'most important of all' and which Congress has authorized. 76 Stat. 604.
40
Implicit in the reasoning of the Commission and the Examiner is the assumption that this project must be built and that it must be built now. In the view of the Commission, one of the factors militating against federal development was that '(t)he Department of Interior * * * frankly admitted it (had) no present intention of seeking authorization to commence construction or planning to construct an HMS project.' 31 F.P.C., at 277. The Examiner's report stated that '(a) comprehensive plan provides for prompt and optimum multi-purpose development of the water resource' and tha t he relative merits of the proposed projects 'turn on a comparison of the costs and benefits of component developments and on which project is best adapted to attain optimum development at the earliest time with the smallest sacrifice of natural values.' J.A. 394 (emphasis added). But neither the Examiner nor the Commission specifically found that deferral of the project would not be in the public interest or that immediate development would be more in the public interest than construction at some future time or no construction at all. Section 4(e) of the Act, the section authorizing the Commission to grant licenses, provides in part:
41
'Whenever the contemplated improvement is, in the judgment of the Commission, desirable and justified in the public interest for the purpose of improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, a finding to that effect shall be made by the Commission and shall become a part of the records of the Commission.' 49 Stat. 840, 16 U.S.C. § 797(e).
And § 10(a) of the Act provides that:
42
'the project adopted * * * shall be such as in the judgment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water-power development, and for other beneficial public uses, including recreational purposes * * *.' 49 Stat. 842, 16 U.S.C. § 803(a).
43
The issues of whether deferral of construction would be more in the public interest than immediate construction and whether preservation of the reaches of the river affected would be more desirable and in the public interest than the proposed development are largely unexplored in this record. We cannot assume that the Act commands the immediate construction of as many projects as possible. The Commission did discuss the Secretary of Interior's claim that, due to alternate power sources, the region will not need the power supplied by the High Mountain Sheep dam for some time. And it concluded that '(o)f more significance * * * than the regional power situation are the load and resources of the (Pacific Northwest Power Company) companies themselves,' which could use the power in the near future. 31 F.P.C., at 272. It added, 'In summary as to the need for power, we conclude that the PNPC sponsoring companies will be able to use HMS power as soon as it is available.' 31 F.P.C., at 273. On rehearing, the Commission stated that 'HMS power will be needed on a regional basis by 1970 1971 * * *.' 31 F.P.C. 1051, 1052.
44
The question whether the proponents of a project 'will be able to use' the power supplied is relevant to the issue of the public interest. So too is the regional need for the additional power. But the inquiry should not stop there. A license under the Act empowers the licensee to construct, for its own use and benefit, hydroelectric projects utilizing the flow of navigable waters and thus, in effect, to appropriate water resources from the public domain. The grant of authority to the Commission to alienate federal water resources does not, of course, turn simply on whether the project will be beneficial to the licensee. Nor is the test solely whether the region will be able to use the additional power. The test is whether the project will be in the public interest. And that determination can be made only after an exploration of all issues relevant to the 'public interest,' including future power demand and supply, alternate sources of power, the public interest in preserving reaches of wild rivers and wilderness areas, the preservation of anadromous fish for commercial and recreational purposes, and the protection of wildlife.
45
The need to destroy the river as a waterway, the desirability of its demise, the choices available to satisfy future demands for energy—these are all relevant to a decision under § 7 and § 10 but they were largely untouched by the Commissin.
46
On our remand there should be an exploration of these neglected phases of the cases, as well as the other points raised by the Secretary.
47
We express no opinion on the merits. It is not our task to determine whether any dam at all should be built or whether if one is authorized it should be private or public. If the ultimate ruling under § 7(b) is that the decision concerning the High Mountain Sheep site should be made by the Congress, the factors we have mentioned will be among the many considerations it doubtless will appraise. If the ultimate decision under § 7(b) is the other way, the Commission will not have discharged its functions under the Act unless it makes an informed judgment on these phases of the cases.
48
This leaves us with the questions presented by Washington Public Power Supply System in No. 462. The main points raised by it are that it is a 'municipality' within the meaning of § 7(a) and therefore entitled to a preference over this power site, that the Commission violated that statutory preference, and that while Pacific Northwest had a prior preliminary permit granted under § 5 of the Act, the Commission unlawfully expanded it to include this site. We express no opinion on the merits of these contentions because they may or may not survive a remand. If in time the project, if any, becomes a federal one, Washington Public Power Supply System would be excluded along with Pacific Northwest, and the points now raised by it would become moot. If in time a new license is issued to Pacific Northwest, the points now raised by Washington Public Power Supply System can be preserved. Accordingly in No. 462 we vacate the judgment and remand the case to the Court of Appeals with instructions to remand to the Commission. In No. 463 we reverse the judgment and remand the case to the Court of Appeals with instructions to remand to the Commission. Each remand is for further proceedings consistent with this opinion. It is so ordered.
49
One judgment vacated and case remanded and one judgment reversed and case remanded.
50
Mr. Justice FORTAS took no part in the consideration or decision of these cases.
51
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, dissenting.
52
I had thought it indisputable, first, that a court may not overturn a determination made by an administrative agency upon a question committed to the agency's judgment unless the determination is 'unsupported by substantial evidence,'1 and, second, that the substantiality of the evidence must be measured through, and only after, an examination of the 'whole record.'2
53
The Commission has determined, on the basis of 14,327 pages of testimony and exhibits, of 'extensive material'3 submitted after the close of the record by the Secretary of the Interior,4 and of the Commission's own 'general knowledge of the Columbia River System,' 31 F.P.C. 247, 277, that the application of Pacific Northwest was 'best adapted to a comprehensive plan,' 49 Stat. 842, 16 U.S.C. § 803(a), of development for this portion of the Columbia River Basin, and that, as a consequence, this site should not now be reserved for later development by the United States.5
54
The Court of Appeals unanimously concluded that this evidentiary record establishes that 'the Commission was amply justified in refusing to recommend federal development and in issuing a license for private construction.' 123 U.S.App.D.C. 209, 217, 358 F.2d 840, 848. I agree. Doubtless much of the evidence was not, as it was submitted, labeled as pertinent to a determination of the Commission's responsibilities under § 7(b), but I had not before understood that evidence marshaled in support of an agency's finding must, if it is to be credited, have been tidily categorized at the hearing according to the purposes for which it might subsequently be employed.
55
I can only conclude that the Court, despite its self-serving disclaimer, ante, pp. 450-451, has in its haste to give force to its own findings of fact on the breeding requirements of anadromous fish6 and on the likelihood that solar and nuclear power will shortly be alternative sources of supply, substituted its own preferences for the discretion given by Congress to the Federal Power Commission. In particular, it must be emphasized that the Court, alone among the Secretary of the Interior,th e Commission, Pacific Northwest, the Washington Public Power Supply System, and the various other intervenors, apparently supposes that no dam at all may now be needed at High Mountain Sheep.7 Wherever the right lies on that issue, it need only be said that Congress has entrusted its resolution to the Commission's informed discretion, and that, on the basis of an ample evidentiary record, the Commission has determined that Pacific Northwest should now be licensed to construct the project.
56
I would affirm the judgments in both cases substantially for the reasons given in Judge Miller's opinion below, as amplified by the considerations contained in this opinion.
1
Section 4 of the Act provides in part:
'The Commission is hereby authorized and empowered—
'(a) To make investigations and to collect and record data concerning the utilization of the water resources of any region to be developed, the water-power industry and its relation to other industries and to interstate or foreign commerce, and concerning the loat ion, capacity, development costs, and relation to markets of power sites, and whether the power from Government dams can be advantageously used by the United States for its public purposes, and what is a fair value of such power, to the extent the Commission may deem necessary or useful for the purposes of this Act.
'(e) To issue licenses to citizens of the United States, or to any association of such citizens, or to any corporation organized under the laws of the United States or any State thereof, or to any State or municipality for the purpose of constructing, operating, and maintaining dams, water conduits, reservoirs, power houses, transmission lines, or other project works necessary or convenient for the development and improvement of navigation and for the development, transmission, and utilization of power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States, or upon any part of the public lands and reservations of the United States (including the Territories), or for the purpose of utilizing the surplus water or water power from any Government dam, except as herein provided * * *.' 49 Stat. 839, 840, 16 U.S.C. §§ 797(a), (e).
2
See n. 1, supra, for § 4(e). Section 7(a) of the Act provides:
'In issuing preliminary permits hereunder or licenses where no preliminary permit has been issued and in issuing licenses to new licensees under section 15 hereof the Commission shall given preference to applications therefor by States and municipalties, provided the plans for the same are deemed by the Commission equally well adapted, or shall within a reasonable time to be fixed by the Commission be made equally well adapted, to conserve and utilize in the public interest the water resources of the region * * *.' 49 Stat. 842, 16 U.S.C. § 800(a).
3
The Secretary argued that federal development of High Mountain Sheep is necessary because (1) hydraulic and electrical coordination with other Columbia River Basin projects, particularly the federal dams already or to be constructed on the downstream sites, could be more effectively achieved if High Mountain Sheep is a part of the federal system; (2) federal development will assure maximum use of the federal northwest transmission grid, thus contributing to maximum repayment of the federal investment in trns mission, which will, in turn, redound to the benefit of the power consumers; (3) federal development would provide greater flexibility and protection in the management of fish resources; (4) flood control could better be effected by flexible federal operation; (5) storage releases for navigation requirements could be made under federal ownership and supervision with less effect on power supply; (6) federal development can better provide recreational facilities for an expanding population. The Secretary noted, however, that immediate construction of the project would produce an excess of power in the Pacific Northwest which would cause large losses to Bonneville Power Administration and severe harm to the region's economy.
4
Various federal agencies have been long engaged in the development of a comprehensive plan for the improvement of the Middle Snake. As early as 1948 the Secretary of the Interior submitted a comprehensive plan for the development of water resources of the Columbia River Basin. In 1949 the Corps of Engineers sumi tted a comprehensive plan for the development of the Columbia River Basin. H.R.Doc. No. 531, 81st Cong., 2d Sess., Vol. 1, pp. 1—3, Vol. 4, pp. 1429, 1482, Vol. 6, p. 2509. The plan recommended, in part, federal construction of nine run-of-the-river dams downstream from High Mountain Sheep and a regulating reservoir for the nine dams at Hells Canyon on the upper Snake. The nine dams were all authorized by Congress and have been or, in one case, will be constructed as federal projects in accordance with the plan. Hells Canyon was later licensed for private development, and, according to the Secretary of the Interior, without adequate regulating facilities. The Corps of Engineers and the Secretary of the Interior then recommended that the federal regulating dam be built, after further study, at High Mountain Sheep—the last suitable site. H.R.Doc. No. 403, 87th Cong., 2d Sess., Vol. 1, pp. iv, viii-ix, 260. Though it is not contended that congressional authorization of the nine federal dams downstream may have pre-empted the Commission's authority to license High Mountain Sheep for private development (cf. United States ex rel. Chapman v. Federal Power Comm'n, 345 U.S. 153, 73 S.Ct. 609, 97 L.Ed. 918), it is argued that Congress appropriated vast sums for federal development of the Columbia River Basin's hydroelectric resources in accordance with an overall plan that contemplated that the key structure in the system would be federally operated and that the downstream dams can be efficiently operated only if High Mountain Sheep is federally operated.
5
'All licenses issued under this Part shall be on the following conditions:
'(a) That the project adopted, including the maps, plans, and specifications, shall be such as in the judgment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water-power development, and for other beneficial public uses, including recreational purposes; and if necessary in order to secure such plan the Commission shall have authority to require the modification of any project and of the plans and specifications of the project works before approval.' 49 Stat. 842, 16 U.S.C. § 803(a).
6
In 1966 the value of the Pacific salmon catch was over $67,000,000 and in 1965 over $65,000,000. United States Department of Interior, Fish & Wildlife Service, Fisheries of the United States, 1966, p. 2. As noted by the Commission, 'the Columbia River is the greatest producer of Pacific salmon and steelhead trout in the United States.' 'Columbia River salmon have been important in the development of the Pacific Northwest for almost a century.' 'The commercial catch of Columbia River salmon is estimated to be worth $12,000,000 annually and the sport fishing attributable to the Salmon River alone * * * may be worth as much as $8 million a year.' 31 F.P.C., at 259.
7
See H.R.Rep. No. 1007, 89th Cong., 1st Sess., pp. 2—5; S.Rep. No. 860, 89th Cong. 1st Sess.; Anadromous Fish, Hearings before the Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries, 88th Cong., 2d Sess., 11.
8
Recently, Congress has expressed a renewed interest in preserving our Nation's rivers in their wild, unexploited state. On January 18, 1966, the Senate passed the National Wild Rivers bill (S. 1446, 89th Cong., 2d Sess., 112 Cong.Rec. 500 (daily ed. Jan. 18, 1966)), and it was pending before the House of Representatives when the Eighty-ninth Congress adjourned. The bill has already been reintroduced in the Ninetieth Congress. S. 119, 90th Cong., 1st Sess.). If enacted, it would preserve the Salmon River, a tributary of the Snake just below High Mountain Sheep, in its natural state. The bill states:
'The Congress finds that some of the free-flowing rivers of the United States possess unique water conservation, scenic, fish, Wildlife, and outdoor recreation values of present and potential benefit to the American people. The Congress also finds that our established national policy of dam and other construction at appropriate sections of the rivers of the United States needs to be complemented by a policy that would preserve other selected rivers or sections thereof in their free-flowing condition to protect the water quality of such rivers and to fulfill other vital national conservation purposes. It is the policy of Congress to preserve, develop, reclaim, and make accessible for the benefit of all of the American people selected parts of the Nation's diminishing resource of free-flowing rivers.' And see §§ 2 and 4(d) of the Wilderness Act of 1964, 78 Stat. 890, 894.
9
Long, Day-night Occurrence and Vertical Distribution of Juvenile Anadromous Fish in Turbine Intakes (U.S. Bureau of Commercial Fisheries, Fish-Passage Research Program) 12, 13, 16.
10
From the data, it would appear that successful passage of juvenile salmonoids is highly unlikely through the impoundments that will be created in the Middle Snake River Basin. This implies that if natural runs are to be passed in this area, downstream migrants must be collected in the head of a reservoir or in streams above the reservoir and transported below.
'Passage of juveniles has not been successful. Escapement from the reservoir varied from year to year, ranging from approximately 10 to 55 percent of the calculated recruitment. The best passage occurred in 1964 in conjunction with a substantial drawdown, high inflows, and a slow spring fill-up that resulted in large discharges (up to 50,000 c.f.s.) during smolt migration. Progeny of spring-run chinook stocks appear to fare better than those from the fall run, and limited data on steelhead suggest that this species may be having even greater difficulty than salmon in passing through the reservoir.' Collins & Elling, Summary of Progress in Fish-Passage Research 1964, p. 2, in Vol. 1, Fish-Passage Research Program, Review of Progress (U.S. Bureau of Commercial Fisheries 1964).
11
Projections of energy sources for the coming years have been summarized in Energy R & D and National Progress, prepared for the Interdepartmental Energy Study by the Energy Study Group, Under Direction of A. B. Cambel, at 22. The following table is taken from that source.
1
Administrative Procedure Act § 10(e), 5 U.S.C. § 706(2)(E) (1964 ed., Supp. II). See also Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456; Jaffe, Judicial Control of Administrative Action 600 et seq. (1965).
2
5 U.S.C. § 706 (1964 ed., Supp. II).
3
31 F.P.C. 247, 275.
4
The history of the Secretary's extraordinary series of belated and apparently indecisive interventions in these proceedings warrants a more complete chronicle than the Court has given. On March 31, 1958, Pacific Northwest applied for a license for the High Mountain Sheep site, and on October 21, 1959, the Commission solicited the views of the Secretary of the Interior. On November 21, 1960, the Secretary replied substantively, and uge d that the entire project be postponed, since the available power supply in the region was, in his view, then sufficient. The hearings nonetheless continued. On March 15, 1961, the Secretary wrote once more, first to indicate that he was withdrawing permission for Interior Department employees to testify at the hearings on questions of the alternative power sources and of the protection of the anadromous fish, and second to suggest that the hearings should be recessed or suspended until the end of 1964, more than three years later. There was, in these various communications, no intimation that federal development of the site was desirable or even appropriate. The hearings concluded on September 12, 1961.
On June 28, 1962, the Secretary suggested, for the first time, that federal development might to suitable; he did not, however, urge that either he or the Commission should immediately seek congressional approval of such a federal project, a precondition to its commencement. Nor did the Secretary intimate that the evidentiary record that had been compiled by the Commission might be incomplete, or request that it be reopened so that he might supple-
ment it. Nonetheless, the Commission sua sponte ordered the parties to respond to the Secretary's suggestion.
On October 8, 1962, the Examiner conpleted his recommendations, concluding that Pacific Northwest's proposal was 'best adapted' to the river's development in part because federal development could not reasonably be immediately anticipated. The Secretary thereupon sought to intervene out of time, and to file exceptions. He did not request that the record be reopened. His motions were granted, and very extensive exceptions were filed. Oral argument of the exceptions was subsequently heard. Neither in the exceptions nor, apparently in the oral argument did the Secretary seek to reopen the record to supplement the evidence before the Commission.
The Commission's decision, rejecting the Secretary's suggestions, was announced on February 5, 1964. The Secretary sought a rehearing on March 26, 1964, and only then did he ask that the record be reopened. He offered only the most general indications of the evidence he would introduce if his motion were granted. Not surprisingly, the Commission denied the motion, and, after consideration of various 'pleadings,' affirmed, with certain minor modifications, its first order. 31 F.P.C. 1051. These actions for review followed. The Secretary, apparently for the first time, announced in his petition to this Court for a writ of certiorari that he was now prepared to seek immediate congressional approval for federal contruction of a dam at High Mountain Sheep.
5
Section 7(b) of the Federal Power Act, 49 Stat. 842, 16 U.S.C. § 800(b), requires the Commission to refuse any application when it concludes that the project should be undertaken by the United States.
6
It must be noted that nothing in the terms, purposes, or legislative history of the Anadromous Fish Act of 1965, 79 Stat. 1125, suggests in any way that it was expected to provide the Secretary or this Court with any retroactive 'mandate' to overturn the Commission's judgment. The only pertiment portions of the legislative history are plain and uncontradicted acknowledgments from the Federal Power Commission that the Act would not 'have any effect' on its authority. Anadromous Fish, Hearings before the Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries, 88th Cong., 2d Sess., 45; H.R.Rep. No. 1007, 89th Cong., 1st Sess., 21. Ironically, the Commission twice during the course of those hearings called attention, without any rejoinder from the Secretary, to the High Mountain Sheep project as an illustration of its continuing and earnest concern for the protection of anadromous fish. Hearings, supra, at 45; Report, supra, at 22.
7
Contrary to his earlier position, supra, p. 452, the Secretary, as has been noted, now apparently entertains no doubt that the project should be immediately commenced.
| 89
|
387 U.S. 556
87 S.Ct. 1746
18 L.Ed.2d 954
The DENVER AND RIO GRANDE WESTERN RAILROAD CO., Petitioner,v.BROTHERHOOD OF RAILROAD TRAINMEN et al.
No. 794.
Argued April 19, 1967.
Decided June 5, 1967.
Martin M. Lucente, Chicago, Ill., for petitioner.
James L. Highsaw, Jr., Washington, D.C., for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
The question here concerns the proper venue for a suit against a labor union, an unincorporated association, under 28 U.S.C. § 1391(b), which at the time this action was brought read as follows: 'A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, except as otherwise provided by law.'
2
In December 1959 and January 1960, the National Railroad Adjustment Board issued monetary awards in favor of certain members of respondent union on their claims for breach of collective bargaining contracts between the union and petitioner, the Denver & Rio Grande Western Railroad Company. The railroad refused to honor the awards, the union struck to enforce them and the strike was permanently enjoinedby the District Court. 185 F.Supp. 369, aff'd, 10 Cir., 290 F.2d 266, cert. denied, 366 U.S. 966, 81 S.Ct. 1925, 6 L.Ed.2d 1256. The railroad then sued the union for damages in the United States District Court for the District of Colorado, also joining as defendants R. E. Carroll, chairman of the union's General Grievance Committee on the property of petitioner, and the chairmen of various local lodges of the union. The complaint alleged that the defendants had breached their duties under the Railway Labor Act, 44 Stat. 577, as amended, 45 U.S.C. § 151 et seq. The District Court overruled the union's motion to dismiss for improper venue, held the strike illegal because the union had failed to exhaust its statutory remedies to enforce the Adjustment Board awards, and awarded damages based on the railroad's loss of traffic caused by the illegal strike. The judgment ran against both the union and Carroll, the case against the other defendants being dismissed for failure of proof. The Court of Appeals, 367 F.2d 137, reversed, holding that the union could be sued under § 1391(b) only in the district of its residence and that its residence was not in Colorado.1 Because of the seeming conflict with Rutland R. Co. v. Brotherhood of Locomotive Eng'rs, 2 Cir., 307 F.2d 21, we granted certiorari. 385 U.S. 1000, 87 S.Ct. 719, 17 L.Ed.2d 541. We reverse.
3
Section 1391(b) is the general venue statute governing transitory causes of action in the federal courts where jurisdiction does not depend wholly on diversity of citizenship. Following its amendment in 1966, 80 Stat. 1111, the section permits suit either in the district where all of the defendants reside or in the district where the claim arose. At the time this suit was brought, however, venue lay only at the defendant's residence, as had been the case since 1887. 24 Stat. 552, as corrected by 25 Stat. 433 (1888). Thus for almost 80 years proper venue in federal-question cases was limited to the district of the defendant's residence, whether the defendant was an individual, a corporation, or an unincorporated association such as this respondent. During all of this time, down to and including the 1966 amendment, Congress has not expressly defined the residence of an unincorporated association for purposes of the general venue statute. The same was true with respect to corporations until 1948 when Congress directed that a corporation could be sued in the judicial district 'in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.' 28 U.S.C. § 1391(c). Congress has maintained its silence, however, with respect to the residence of the unincorporated association. The resolution of that issue, as was true for the corporation prior to 1948, has been left to the courts. The issue is now here for the first time.
4
Of course, venue for a suit against an unincorporated association becomes important only if the association is itself suable. At common law, such an association could be sued only in the names of its members and liability had to be enforced against each member. This principle was rejected in United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344, 42 S.Ct. 570, 66 L.Ed. 975, where this Court, recognizing the growth and pervasive influence of labor organizations and noting that the suability of trade unions 'is of primary importance in the working out of justice and in protecting individuals and society * * *,' 259 U.S., at 390, 42 S.Ct., at 576, held that such organizations were suable in the federal courts and that funds accumulated by them were subject to execution in suits for tots committed during strikes. The Coronado holding is now reflected in Fed.Rule Civ.Proc. 17(b).
5
The Coronado case dealt with capacity to be sued, not with venue, but it did legitimate suing the unincorporated association as an entity. Although that entity has no citizenship independent of its members for purposes of diversity jurisdiction, United Steelworkers of America v. R. H. Bouligny, Inc., 382 U.S. 145, 86 S.Ct. 272, 15 L.Ed.2d 217, a case relied upon by the Court of Appeals here, we think that the question of the proper venue for such a defendant, like the question of capacity, should be determined by looking to the residence of the association itself rather than that of its individual members. Otherwise, § 1391(b) would seem to require either holding the association not suable at all where its members are residents of different States, or holding that the association 'resides' in any State in which any of its members resides. The first alternative seems wholly at odds with Coronado and in addition removes federal-question litigation from the federal courts unnecessarily; the second is patently unfair to the association when it is remembered that venue is primarily a matter of convenience of litigants and witnesses. H.R.Rep. No. 1893, 89th Cong., 2d Sess., p. 2; U.S.Code Congressional and Administrative News 1966, p. 3693. Of course, having concluded that the unincorporated association should be viewed as an entity for purposes of residence under § 1391(b), that residence must still be ascertained, an inquiry requiring examination of congressional intent and the interests reflected in Coronado and in principles underlying venue limitations.
6
In Sperry Prods., Inc. v. Association of American Railroads, 132 F.2d 408, 145 A.L.R. 694, the Court of Appeals for the Second Circuit dealt with the issue of what district an unincorporated association may be said to inhabit under the special venue statute governing patent suits, then 28 U.S.C. § 109 (1940 ed.), now 28 U.S.C. § 1400. That court thought the association should be treated like a corporation. Under the decisions of this Court, corporations had a single residence for venue purposes, the State of their incorporation. Likewise, the Sperry court thought the unincorporated association should be considered as having a single residence, in its case its principle place of business. Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167, had already determined, however, that corporations, while having only one residence, nevertheless consented to be sued in federal diversity suits where they were licensed to do business. And Neirbo had much to do with producing the 1948 congressional definition of corporate residence as including not only the State of incorporation but wherever the corporation is licensed to do business or is doing business.
7
It can be argued, as respondent does, that had the 1948 Congress intended the expanded definition of corporate residence to apply to labor unions and other unincorporated associations, it would have said so. But even accepting this, the question of what the association's residence is for venue purposes remains unanswered. Saying that Congress did not intend to 'change' the venue law with respect to unincorporated associations assumes a settled meaning to the prior law. This was not the case. There was no settled construction of the law in the courts in 1948, and there is none yet. Nor was there anything to indicate that Congress had considered a labor union's residence to be in only one place or had ever intended a limited view of residence with respect to unincorporated associations. Rather than accepting respondent's position, we view the action of Congress in 1948 as simply correcting an unacceptably narrow definition of corporate residence which had been adopted by the courts, while maintaining its silence with respect to the unincorporated association. And if it is assumed that Congress was aware of Sperry at all, it i § urely reasonable to think that Congress anticipated that the approach of that case, analogizing incorporated and unincorporated entities, would continue to be followed by the courts so that if corporate residence were broadly defined by the Congress, the courts would similarly construe the concept of residence of the unincorpoated association. This was the approach of the Court of Appeals for the Second Circuit in Rutland R. Co. v. Brotherhood of Locomotive Eng'rs, supra.2
8
We think it most nearly approximates the intent of Congress to recognize the reality of the multi-state, unincorporated association such as a labor union and to permit suit against that entity, like the analogous corporate entity, wherever it is 'doing business.' Congress has itself recognized as much in a special venue statute, § 301(c) of the Labor Management Relations Act, 1947, 61 Stat. 157, 29 U.S.C. § 185(c), which provides that actions against labor unions governed by the Labor Management Relations Act may be brought in any district where the union maintains its principal office or in any district in which its duly authorized officers or agents are engaged in representing or acting for employee members. That statute was enacted but a year before the 1948 revision of the Judicial Code, and while it does not mention residence, it is a considerable indication that Congress had no desire, then or at any previous time, to construe 'residence' as used in the general venue provision so as to confine suits against a labor union to the district where its principal office is located. Moreover, from the standpoint of convenience to parties and witnesses, there would be little merit in holding that suits against unions covered by the National Labor Relations Act may be brought anywhere the responsible representatives of the union take concrete action and yet hold that suits for similar conduct against unions subject to a parallel federal labor statute, the Railway Labor Act, may be brought only where the union's principal office is located. Nor need we here be concerned, as in Bouligny, with possible effects on the scope of the jurisdiction of the federal courts. Under these circumstances, for this Court to create such a distinction without some positive lead from Congress and in the face of sound policy considerations to the contrary would be unjustified.
9
We therefore conclude that the Court of Appeals improperly applied § 1391(b) as it read when this suit was brought. But even if we instead agreed with the Court of Appeals on this question, the case must be considered in light of the present form of that section, that is, as amended by the Act of November 2, 1966, which provides for venue not only at the place of a defendant's residence but also in the ditr ict where the claim arose. This amendment does not change the substantive law applicable to this lawsuit. It is wholly procedural. Absent some contrary indications by the Congress and absent any procedural prejudice to either party, the 1966 amendment to § 1391 is applicable to this suit. See United States v. State of Alabama, 362 U.S. 602, 80 S.Ct. 924, 4 L.Ed.2d 982; Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 959, 93 L.Ed. 1207; American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 201, 42 S.Ct. 72, 75, 66 L.Ed. 189; Pruess v. Udall, 123 U.S.App.D.C. 301, 359 F.2d 615. As this Court said in applying 28 U.S.C. § 1404(a) to pending actions, 'No one has a vested right in any given mode of procedure'. Ex parte Collett, 337 U.S., at 71, 69 S.Ct., at 953. And in any event, if the decision below were affirmed, the petitioner could reinstitute the same action in the same District Court and seek the benefits of the current version of § 1391, absent the barrier of any applicable statute of limitations. We do not, of course, intimate any views as to whether this claim 'arose' in the District of Colorado. That would be an issue for the District Court should it now be determined, in light of this opinion, that respondent was not doing business in Colorado when this suit was instituted.
10
Reversed and remanded.
11
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS and Mr. Justice FORTAS, join, dissenting.
12
This suit for damages caused by an illegal strike was brought by the Denver and Rio Grande Western Railroad against the Brotherhood of Railroad Trainmen and certain of its individual members in the United States District Court for Colorado where the Brotherhood's local lodges went on strike. The Brotherhood, an unincorporated association with its headquarters and principal place of business in Cleveland, Ohio, filed a motion to dismiss on the ground of improper venue. The District Court denied this motion, and after a trial without a jury, gave the railroad a $37,988 judgment against the union. The Court of Appeals reversed. 10 Cir., 367 F.2d 137. It held that the applicable venue statute, 28 U.S.C. § 1391(b),1 gave venue only to the district court for the district where the union's principal place of business is located. I would affirm this holding.
13
In holding venue improper as to the union, the Court of Appeals rejected the holding of the Second Circuit in Rutland R. Corp. v. Brotherhood of Locomotive Eng'rs, 307 F.2d 21, cert. denied, 372 U.S. 954, 83 S.Ct. 949, 9 L.Ed.2d 978, that a union may be sued under § 1391(b) in any district where it is doing business. The Second Circuit in Rutland recognized that prior to the Judicial Code of 1948, under the predecessor of § 1391(b),2 most courts had held that an unincorporated association is suable only at its principal place of business and that the only express change made in pre-existing general venue law by the 1948 Code was the expansion of corporate venue from the place of incorporation to the place of doing business. § 1391(c).3 Nevertheless, the court reasoned that there are sound policies for treating unincorporated associations like corporations and that, though the language of § 1391(c) expressly applies to corporations and not to unincorporated associations, Congress implicitly intended for the expanded concepts of corporate residence under § 1391(c) to be applied in determining the residence of an unincorporated association under § 1391(b).
14
For myself I cannot draw any such inference from the 1948 amendments to the general venue statute. Sections 1391(b) and (c) were part of a general Code revision designed comprehensively to cover the rules of procedure, including venue, and there is no reference whatever in these sections or their legislative history, so far as I can determine, that would permit us to infer that Congress intended that unincorporated associations be treated as corporations for venue purposes, thus changing the judicially established rule that unincorporated associations are suable only at their principal place of business. Though this Court recognizes that 'Congress has maintained its silence * * * with respect to the residence of the unincorporated association', it approves the Rutland holding because 'sound policy considerations' indicate it 'most nearly approximates the intent of Congress.' In reaching this result, the Court adopts the Rutland reasoning that Congress in 1948 must have approved of assimilating for venue purposes the treatment of unincorporated associations to that of corporations, because such a process of assimilation had been advocated by Judge Learned Hand in Sperry Prods., Inc. v. Association of American Railroads, 2 Cir., 132 F.2d 408, 145 A.L.R. 694, cert. denied, 319 U.S. 744, 63 S.Ct. 1031, 87 L.Ed. 1700. The narrow issue dealt with in Sperry was where, under the special venue provisions for a patent infringement suit,4 is an unincorporated association deemed to be an 'inhabitant.' The Sperry court first held that, since an unincorporated association can be sued in its own name to enforce a federal right, United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344, 42 S.Ct. 570, 66 L.Ed. 975, and since it can be served with process under Fed.Rule Civ.Proc. 17(b), it should, for venue purposes, be treated as a single individual, not an aggregate of individuals.5 The Sperry court then held that for purposes of the special patent venue provision an unincorporated association is an 'inhabitant' of the district where its principal place of business is located—precisely what the Court of Appeals held here as to § 1391(b). In reaching this result, Judge Hand advanced legislative policy reasons, similar to those advanced by the Court here today, for treating an unincorporated association like a corporation, then deemed to be an inhabitant only of its State of incorporation and of the district within that State where its principal place of business was located. It is Judge Hand's process of reasoning, not his holding, that the Court uses in assimilating the treatment of unincorporated associations under § 1391(b) to the treatment of corporations under § 1391(c).
15
I find many objections to doing what the Court does here. First, even assuming that in enacting § 1391 Congress was aware of the Sperry decision and thought it applicable to general, as distinguished from patent, venue rules6 (an assumption I think completely unfounded), it is doubtful that Congress, without saying so, intended to reject the holding of that case—that an unincorporated association is suable at its principal place of business—but at the sme time adopt its reasoning—dicta to the effect that an unincorporated association should be treated like a corporation. Second, the only indication I can find of what Congress intended in 1948 as to unincorporated associations comes from Professor Moore, who participated in drafting the Code and who in 1949 wrote:
16
'Sperry Products, Inc. v. Association of American Railroads took the position that an unincorporated association is an 'inhabitant,' i.e., resident, of the district where it has its principal place of business.
17
And this doctrine has been applied to a partnership * * *. The Code has changed none of these doctrines.'7
18
Third, Congress in 1948 was clearly aware of the venue problems involved in suing an unincorporated association. Just the year before, in 1947, it had expressly considered these problems in relation to suits against labor unions to enforce collective bargaining agreements8 and in § 301(c) of the Labor Management Relations Act, 1947, 61 Stat. 157, 29 U.S.C. § 185(c), explicitly provided for venue in such suits '(1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in representing or acting for employee members.' That action is wholly consistent with the idea that Congress' total failure in 1948 to provide a similar venue rule applicable to other kinds of suits against a union was neither inadvertent nor meant to be cured by judicial implication. Whether there is 'little' or much 'merit' in holding that venue of a union subject to the Railway Labor Act, 44 Stat. 577, as amended, is different from the venue of a union under the express venue provisions of the National Labor Relations Act, 49 Stat. 449, as amended, is a question for Congress, not this Court. Finally, since 1948 the lower courts have been completely divided on the question of whether an unincorporated association can be sued at a place other than its principal place of business.9 In the light of all these things, I cannot impute to Congress an unarticulated intent to make an unincorporated association's venue precisely the same as that of a corporation.
19
Neither the language and history of the general venue statute nor any prior decision of this Court throws any light on the question presented here. In the final analysis it is simply an important question of public policy. Reasons can logically be advanced for expanding the venue of unincorporated associations to include districts where they engage in business, but just as strong reasons can be advanced for not doing so. Though venue, relating to the convenience of the litigants, is quite different from jurisdiction, relating to the power of a court to adjudicate, Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 167—168, 60 S.Ct. 153, 154—155, 84 L.Ed. 167, and though Congress may have more constitutional leeway to deal with venue than with jurisdiction, United Steelworkers of America v. R. H. Bouligny, Inc., 382 U.S. 145, 86 S.Ct. 272, 15 L.Ed.2d 217, venue rules nevertheless pose policy considerations which are and should be weighed by Congress and not by this Court. As we said in Olberding v. Illinois Central R. Co., 346 U.S. 338, 340, 74 S.Ct. 83, 85, 98 L.Ed. 39: 'The requirement of venue is specific and unambiguous; it is not one of those vague principles which, in the interest of some overriding policy, is to be given a 'liberal' construction.' I think the Court oversteps its boundaries in doing that which Congress did not choose to do in expanding the venue provisions with reference to corporations. I would leave the law of venue as it is until Congress decides its own policy.10
20
I would affirm the judgment of the Court of Appeals.
1
The Court of Appeals also reversed the damage award against respondent Carroll, concluding that Carroll was not responsible for the strike in question. We do not disturb this factual determination of the Court of Appeals. Carroll's residence is admittedly within the District of Colorado.
2
Other lower court cases are divided on the question whether an unincorporated association can be sued at a place other than its principal place of business. Cases restricting venue to the association's principal place of business include Brotherhood of Locomotive Firemen & Enginemen v. Graham, 84 U.S.App.D.C. 678 69, n. 2, 175 F.2d 802, 804, n. 2, rev'd on other grounds, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22; McNutt v. United Gas, Coke & Chem. Workers, D.C., 108 F.Supp. 871, 875; Salvant v. Louisville & N.R. Co., D.C., 83 F.Supp. 391, 396; Westinghouse Elec. Corp. v. United Elec. Radio & Mach. Workers, D.C., 92 F.Supp. 841, aff'd without discussion, 3 Cir., 194 F.2d 770; Cherico v. Brotherhood of R.R. Trainmen, D.C., 167 F.Supp. 635, 637—638; cf. Hadden v. Small, D.C., 145 F.Supp. 387 (partnership). Cases holding that unincorporated associations may be sued where they do business: Portsmouth Baseball Corp. v. Frick, D.C., 132 F.Supp. 922; Eastern Motor Express v. Espenshade, D.C., 138 F.Supp. 426, 432; American Airlines, Inc. v. Air Line Pilots Assn., D.C., 169 F.Supp. 777, 781—783; R & E Dental Supply Co. v. Ritter Co., D.C., 185 F.Supp. 812; cf. Joscar Co. v. Consolidated Sun Ray, Inc., D.C., 212 F.Supp. 634.
1
28 U.S.C. § 1391(b):
'A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, except as otherwise provided by law.'
2
36 Stat. 1101, § 51, 28 U.S.C. § 112 (1940 ed.), provided that 'no civil suit shall be brought in any district court against any person * * * in any other district than that whereof he is an inhabitant * * *.'
3
28 U.S.C. § 1391(c):
'A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.'
4
36 Stat. 1100, § 48, 28 U.S.C. § 109 (1940 ed.), provided that suits for patent infringement must be brought 'in the district of which the defendant is an inhabitant, or in any district in which the defendant * * * shall have committed acts of infringement and have a regular and established place of business.'
5
None of the parties here have suggested that an unincorporated association's residence for venue purposes depends on the residence of each individual member, and I agree with the Court's holding that an unincorporated association like a union is a single entity with a residence. The only problem here is to locate that residence.
6
After Sperry the lower courts divided on whether its holding should be extended to the pre-1948 general venue provision (see n. 3, supra). Compare Brotherhood of Locomotive Firemen & Enginemen v. Graham, 84 U.S.App.D.C. 67, 175 F.2d 802, rev'd on other grounds, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22, and Griffin v. Illinois Cent. R. Co., D.C., 88 F.Supp. 552, 555, with Thermoid Co. v. United Rubber Workers, D.C., 70 F.Supp. 228, 233—234.
7
Moore, Commentary on the U.S. Judicial Code 193 (1949). Now, however, for legislative policy reasons such as the protection from abuse contained in the transfer provision of 28 U.S.C. § 1404(a) and the multi-state nature of unincorporated associations' activities, Professor Moore believes the position taken in Rutland 'desirable.' 1 Moore, Federal Practice 0.142(5. 4), at 1508. See also Comment, 44 Calif.L.Rev. 130 (1956); Note, 39 St. John's L.Rev. 353, 358—360 (1965); Note, 13 Okla.L.Rev. 206 (1960); 45 Geo.L.Rev. 132 (1956). But see Kaplan, Suits Against Unincorporated Associations Under the Federal Rules of Civil Procedure, 53 Mich.L.Rev. 945, 949—950 (1955); Comment, 8 Stan.L.Rev. 708 (1956).
8
H.R.Rep. No. 245, 80th Cong., 1st Sess., 108—109 (1947); S.Rep. No. 105, 80th Cong., 1st Sess., 15—18 (1947).
9
Cases holding an unincorporated association may be sued only at its principal place of business: Brotherhood of Locomotive Firemen & Enginemen v. Graham, supra, 84 U.S.App.D.C., at 69, n. 2, 175 F.2d, at 804; McNutt v. United Gas, Coke & Chem. Workers, D.C., 108 F.Supp. 871, 875; Salvant v. Louisville & N.R. Co., D.C., 83 F.Supp. 391, 396; Westinghouse Elec. Corp. v. United Elec. Radio & Mach. Workers, D.C., 92 F.Supp. 841, 842, aff'd without discussion, 3 Cir., 194 F.2d 770; Cherico v. Brotherhood of R.R. Trainmen, D.C., 167 F.Supp. 35 , 637—638; cf. Hadden v. Small, D.C., 145 F.Supp. 387 (partnership). Cases holding that an unincorporated association may be sued where it does business: Portsmouth Baseball Corp. v. Frick, D.C., 132 F.Supp. 922; Eastern Motor Express, Inc. v. Espenshade, D.C., 138 F.Supp. 426, 432; American Airlines, Inc. v. Air Line Pilots Assn., D.C., 169 F.Supp. 777, 781—783; R & E Dental Supply Co. v. Ritter Co., D.C., 185 F.Supp. 812; cf. Joscar Co. v. Consolidated Sun Ray, Inc., D.C., 212 F.Supp. 634.
10
Since I agree with the Court that the 1966 amendment of § 1391(b) should apply to pending cases such as this one, I would not have filed this dissent had the Court remanded this case solely for a determination of the propriety of venue under the 1966 amendment.
| 89
|
387 U.S. 541
87 S.Ct. 1741
18 L.Ed.2d 930
Norman SEE, Appellant,v.CITY OF SEATTLE.
Nos. 92, 180.
Supreme Court of the United States
June 5, 1967
Norman Dorsen, New York City, for appellant.
A. L. Newbould, Seattle, Wash., for appellee.
Mr. Justice WHITE delivered the opinion of the Court.
1
Appellant seeks reversal of his conviction for refusing to permit a representative of the City of Seattle Fire Department to enter and inspect appellant's locked commercial warehouse without a warrant and without probable cause to believe that a violation of any municipal ordinance existed therein. The inspection was conducted as part of a routine, periodic city-wide canvass to obtain compliance with Seattle's Fire Code. City of Seattle Ordinance No. 87870, c. 8.01. After he refused the inspector access, appellant was arrested and charged with violating § 8.01.050 of the Code:
2
'INSPECTION OF BUILDING AND PREMISES. It shall be the duty of the Fire Chief to inspect and he may enter all buildings and premises, except the interiors of dwellings, as often as may be necessary for the purpose of ascertaining and causing to be corrected any conditions liable to cause fire, or any violations of the provisions of this Title, and of any other ordinance concerning fire hazards.' Appellant was convicted and given a suspended fine of $1001 despite his claim that § 8.01.050, if interpreted to authorize this warrantless inspection of his warehouse, would violate his rights under the Fourth and Fourteenth Amendments. We noted probable jurisic tion and set this case for argument with Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930. 385 U.S. 808, 87 S.Ct. 31, 17 L.Ed.2d 50. We find the principles enunciated in the Camara opinion applicable here and therefore we reverse.
3
In Camara, we held that the Fourth Amendment bars prosecution of a person who has refused to permit a warrantless code-enforcement inspection of his personal residence. The only question which this case presents is whether Camara applies to similar inspections of commercial structures which are not used as private residences. The Supreme Court of Washington, in affirming appellant's conviction, suggested that this Court 'has applied different standards of reasonableness to searches of dwellings than to places of business', citing Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453. The Washington court held, and appellee here argues, that § 8.01.050, which excludes 'the interiors of dwellings,'2 establishes a reasonable scheme for the warrantless inspection of commercial premises pursuant to the Seattle Fire Code.
4
In Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; and Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, this Court refused to uphold otherwise unreasonable criminal investigative searches merely because commercial rather than residential premises were the object of the police intrusions. Likewise, we see no justification for so relaxing Fourth Amendment safeguards where the official inspection is intended to aid enforcement of laws prescribing minimum physical standards for commercial premises. As we explained in Camara, a search of private houses in presumptively unreasonable if conducted without a warrant. The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property. The businessman, too, has that right placed in jeopardy if the decision to enter and inspect for violation of regulatory laws can be made and enforced by the inspector in the field without official authority evidenced by warrant.
5
As governmental regulation of business enterprise has mushroomed in recent years, the need for effective investigative techniques to achieve the aims of such regulation has been the subject of substantial comment and legislation.3 Official entry upon commercial property is a technique commonly adopted by administrative agencies at all levels of government to enforce a variety of regulatory laws; thus, entry may permit inspection of the structure in which a business is housed, as in this case, or inspection of business products, or a perusal of financial books and records. This Court has not had occasion to consider the Fourth Amendment's relation to this broad range of investigations.4 However, we have dealt with the Fourth Amendment issues raised by another comon investigative technique, the administrative subpoena of corporate books and records. We find strong support in these subpoena cases for our conclusion that warrants are a necessary and a tolerable limitation on the right to enter upon and inspect commercial premises.
6
It is now settled that, when an administrative agency subpoenas corporate books or records, the Fourth Amendment requires that the subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.5 The agency has the right to conduct all reasonable inspections of such documents which are contemplated by statute, but it must delimit the confines of a search by designating the needed documents in a formal subpoena. In addition, while the demand to inspect may be issued by the agency, in the form of an administrative subpoena, it may not be made and enforced by the inspector in the field, and the subpoenaed party may obtain judicial review of the reasonableness of the demand prior to suffering penalties for refusing to comply.
7
It is these rather minimal limitations on administrative action which we think are constitutionally required in the case of investigative entry upon commercial establishments. The agency's particular demand for access will of course be measured, in terms of probable cause to issue a warrant, against a flexible standard of reasonableness that takes into account the public need for effective enforcement of the particular regulation involved. But the decision to enter and inspect will not be the product of the unreviewed discretion of the enforcement officer in the field.6 Given the analogous investigative functions performed by the administrative subpoena and the demand for entry, we find untenable the proposition that the subpoena, which has been termed a 'constructive' search, Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 202, 66 S.Ct. 494, 502, 90 L.Ed. 614, 166 A.L.R. 531, is subject to Fourth Amendment limitations which do not apply to actual searches and inspections of commercial premises.
8
We therefore conclude that administrative entry, without consent, upon the portions of commercial premise w hich are not open to the public may only be compelled through prosecution or physical force within the framework of a warrant procedure.7 We do not in any way imply that business premises may not reasonably be inspected in many more situations than private homes, nor do we question such accepted regulatory techniques as licensing programs which require inspections prior to operating a business or marketing a product. Any constitutional challenge to such programs can only be resolved, as many have been in the past, on a case-by-case basis under the general Fourth Amendment standard of reasonableness. We hold only that the basic component of a reasonable search under the Fourth Amendment—that it not be enforced without a suitable warrant procedure—is applicable in this context, as in others, to business as well as to residential premises. Therefore, appellant may not be prosecuted for exercising his constitutional right to insist that the fire inspector obtain a warrant authorizing entry upon appellant's locked warehouse.
9
Mr. Justice CLARK, with whom Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting.
10
Eight years ago my Brother Frankfurter wisely wrote in Frank v. State of Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877 (1959):
11
'Time and experience have forcefully taught that the power to inspect dwelling places, either as a matter of systematic area-by-area search or, as here, to treat a specific problem, is of indispensable importance to the maintenance of community health; a power that would be greatly hobbled by the blanket requirement of the safeguards necessary for a search of evidence of criminal acts. The need for preventive action is great, and city after city has seen this need and granted the power of inspection to its health officials; and these inspections are apparently welcomed by all but an insignificant few.' At 372, 79 S.Ct. at 811.
12
Today the Court renders this municipal experience, which dates back to Colonial days, for naught by overruling Frank v. State of Maryland and by striking down hundreds of city ordinances throughout the country and jeopardizing thereby the health, welfare, and safety of literally millions of people.
13
But this is not all. It prostitutes the command of the Fourth Amendment that 'no Warrants shall issue, but upon probable cause' and sets up in the health and safety codes area inspection a newfangled 'warrant' system that is entirely foreign to Fourth Amendment standards. It is regrettable that the Court wipes out such a long and widely accepted practice and creates in its place such enormous confusion in all of our towns and metropolitan cities in one fell swoop. I dissent.
I.
14
I shall not treat in any detail the constitutional issue involved. For me it was settled in Frank v. State of Maryland, supra. I would adhere to that decision and the reasoning therein of my late Brother Frankfurter. Time has not shown any need for change. Indeed the opposite is true, as I shall show later. As I read it, the Fourth Amendment guarantee of individual privacy is, by its language, specifically qualified. It prohibits only those searches that are 'unreasonable.' The majority seem to recognize tis for they set up a new test for the long-recognized and enforced Fourth Amendment's 'probable-cause' requirement for the issuance of warrants. They would permit the issuance of paper warrants, in area inspection programs, with probable cause based on area inspection standards as set out in municipal codes, and with warrants issued by the rubber stamp of a willing magistrate.1 In my view, this degrades the Fourth Amendment.
II.
15
Moreover, history supports the Frank disposition. Over 150 years of city in rem inspections for health and safety purposes have continuously been enforced. In only one case during all that period have the courts denied municipalities this right. See District of Columbia v. Little, 85 U.S.App.D.C. 242, 178 F.2d 13, 13 A.L.R.2d 954 (1949), aff'd on other grounds, 339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599 (1950). In addition to the two cases in this Court (Frank, supra, and Ohio ex rel. Eaton v. Price, 364 U.S. 263, 80 S.Ct. 1463, 4 L.Ed.2d 1708 (1960)), which have upheld the municipal action, not a single state high court has held against the validity of such ordinances. Indeed, since our Frank decision five of the States' highest courts have found that reasonable inspections are constitutionally permissible and in fact imperative, for the protection of health, safety, and welfare of the millions who inhabit our cities and towns.2
16
I submit that under the carefully circumscribed requirements of health and safety codes, as well as the facts and circumstances of these particular inspections, there is nothing unreasonable about the ones undertaken here. These inspections meet the Fourth Amendment's test of reasonableness and are entirely consistent with the Amendment's commands and our cases.
17
There is nothing here that suggests that the inspection was unauthorized, unreasonable, for any improper purpose, or designed as a basis for a criminal prosecution; nor is there any indication of any discriminatory, arbitrary, or capricious action affecting the appellant in either case. Indeed, Camara was admittedly violating the Code by living in quarters prohibited thereby; and See was operating a locked warehouse—a business establishment subject to inspection.
18
The majority say, however, that under the present system the occupant has no way of knowing the necessity for the inspection, the limits of the inspector's power, or whether the inspector is himself authorized to perform the search. Each of the ordinances here is supported by findings as to the necessity for inspections of this type and San Francisco specifically bans the conduct in which appellant Camara is admittedly engaged. Furthermore, all of these doubts raised by the Court could be resolved very quickly. Indeed, the inspectors all have identification cards which they show the occupant and the latter could easily resolve the remaining questions by a call to the inspector's superior or, upon demand, receive a written answer thereto. The record here shows these challenges could have been easily interposed. The inspectors called on several occasions, but still no such questions were raised.3 These cases, from the outset, were based on the Fourth Amendmnt , not on any of the circumstances surrounding the attempted inspection. To say, therefore, that the inspection is left to the discretion of the officer in the field is to reach a conclusion not authorized by this record or the ordinances involved here. The Court says the question is not whether the 'inspections may be made but whether they may be made, without a warrant.' With due respect, inspections of this type have been made for over a century and a half without warrants and it is a little late to impose a death sentence on such procedures now. In most instances the officer could not secure a warrant—such as in See's case—thereby insulating large and important segments of our cities from inspection for health and safety conditions. It is this situation which is even recognized by the Court—that should give us pause.
III.
19
The great need for health and safety inspection is emphasized by the experience of San Francisco, a metropolitan area known for its cleanliness and safety ever since it suffered earthquake and fire back in 1906. For the fiscal year ending June 30, 1965, over 16,000 dwelling structures were inspected, of which over 5,600 required some type of compliance action in order to meet code requirements. And in 1965—1966 over 62,000 apartments, hotels, and dwellings were inspected with similar results. During the same period the Public Works Department conducted over 52,000 building inspections, over 43,000 electrical ones and over 33,000 plumbing inspections. During the entire year 1965—1966 inspectors were refused entry on less than 10 occasions where the ordinance required the householder to so permit.
20
In Seattle, the site of No. 180, See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943, fire inspections of commercial and industrial buildings totaled over 85,000 in 1965. In Jacksonville, Florida, over 21,000 fire inspections were carried on in the same year, while in excess of 135,000 health inspections were conducted. In Portland, Oregon, out of 27,000 health and safety inspections over 4,500 violations of regulations were uncovered and the fire marshal in Portland found over 17,000 violations of the fire code in 1965 alone. In Boston over 56,000 code violations were uncovered in 1966 while in Baltimore a somewhat similar situation was reported.
21
In the larger metropolitan areas such as Los Angeles, over 300,000 inspections (health and fire) revealed over 28,000 hazardous violations. In Chicago during the period November 1965 to December 1966, over 18,000 buildings were found to be rodent infested out of some 46,000 inspections. And in Cleveland the division of housing found over 42,000 violations of its code in 1965; its health inspectors found over 33,000 violations in commercial establishments alone and over 27,000 dwelling code infractions were reported in the same period. And in New York City the problem is even more acute. A grand jury in Brooklyn conducted a housing survey of 15 square blocks in three different areas and found over 12,000 hazardous violations of code restrictions in those areas alone. Prior to this test there were only 567 violations reported in the three areas. The pressing need for inspection is shown by the fact that some 12,000 additional violations were actually present at that very time.
22
An even more disastrous effect will be suffered in plumbing violations. These are not only more frequent but also the more dangerous to the community. Defective plumbing causes back siphonage of sewage and other household wastes. Chicago's disastrous amoebic dysentery epidemic is an example. Over 100 deaths resulted. Fire code violations also often cause many conflagrations. Indeed, if the fire inspection attempted in District of Columbia v. Little, 339 U.S. 1, 70 S.Ct. 468 (1950), had been permitted a two-year-oldch ild's death resulting from a fire that gutted the home involved there on August 6, 1949, might well have been prevented.
23
Inspections also play a vital role in urban redevelopment and slum clearance. Statistics indicate that slums constitute 20% of the residential area of the average American city, still they produce 35% of the fires, 45% of the major crimes, and 50% of the disease. Today's decision will play havoc with the many programs now designed to aid in the improvement of these areas. We should remember the admonition of Mr. Justice Douglas in Berman v. Parker, 348 U.S. 26, 32, 75 S.Ct. 98, 102, 99 L.Ed. 27 (1954):
24
'Miserable and disreputable housing conditions may do more than spread disease and crime and immorality. They may also suffocate the spirit by reducing the people who live there to the status of cattle. They may indeed make living an almost insufferable burden.'
IV.
25
The majority propose two answers to this admittedly pressing problem of need for constant inspection of premises for fire, health, and safety infractions of municipal codes. First, they say that there will be few refusals of entry to inspect. Unlike the attitude of householders as to codes requiring entry for inspection, we have few empirical statistics on attitudes where consent must be obtained. It is true that in the required entry-to-inspect situations most occupants welcome the periodic visits of municipal inspectors. In my view this will not be true when consent is necessary. The City of Portland, Oregon, has a voluntary home inspection program. The 1966 record shows that out of 16,171 calls where the occupant was at home, entry was refused in 2,540 cases—approximately one out of six. This is a large percentage and would place an intolerable burden on the inspection service when required to secure warrants. What is more important is that out of the houses inspected 4,515 hazardous conditions were found! Hence, on the same percentage, there would be approximately 840 hazardous situations in the 2,540 in which inspection was refused in Portland.
26
Human nature being what it is, we must face up to the fact that thousands of inspections are going to be denied. The economics of the situation alone will force this result. Homeowners generally try to minimize maintenance costs, and some landlords make needed repairs only when required to do so. Immediate prospects for costly repairs to correct possible defects are going to keep many a door closed to the inspector. It was said by way of dissent in Frank v. State of Maryland, supra, at 384, 79 S.Ct. 804, that '(o)ne rebel a year' is not too great a price to pay for the right to privacy. But when voluntary inspection is relied upon this 'one rebel' is going to become a general rebellion. That there will be a significant increase in refusals is certain and, as time goes on, that trend may well become a frightening reality. It is submitted that voluntary compliance cannot be depended upon.
27
The Court then addresses itself to the propriety of warrantless area inspections.4 The basis of 'probable cause' for area inspection warrants the Court says, begins with the Fourth Amendment's reasonableness requirement; in determining whether an inspection is reasonable 'the need for the inspection must be weighed in terms of these reasonable goals of code enforcement.' It adds that there are 'a number of persuasive factors' supporting 'the reasonableness of area code-enforcement inspections.' It is interesting to note that the factors the Court relies upon are the identical ones my Brother Frankfurter gave for excusing warrants in Frank v. State of Maryland, supra. They are: long acceptance historically; the great public interest in health and safety; and the impersonal nature of the inspections—not for evidence of crime—but for the public welfare. Upon this reasoning, the Court concludes that probable cause exists 'if reasonable legislative or administrative standards for conducting an area inspection are satisfied wih respect to a particular dwelling.' These standards will vary, it says, according to the code program and the condition of the area with reference thereto rather than the condition of a particular dwelling. The majority seem to hold that warrants may be obtained after a refusal of initial entry; I can find no such constitutional distinction or command. These boxcar warrants will be identical as to every dwelling in the area, save the street number itself. I daresay they will be printed up in pads of a thousand or more—with space for the street number to be inserted—and issued by magistrates in broadcast fashion as a matter of course.
28
I ask: Why go through such an exercise, such a pretense? As the same essentials are being followed under the present procedures, I ask: Why the ceremony, the delay, the expense, the abuse of the search warrant? In my view this will not only destroy its integrity but will degrade the magistrate issuing them and soon bring disrepute not only upon the practice but upon the judicial process. It will be very costly to the city in paperwork incident to the issuance of the paper warrants, in loss of time of inspectors and waste of the time of magistrates and will result in more annoyance to the public. It will also be more burdensome to the occupant of the premises to be inspected. Under a search warrant the inspector can enter any time he chooses. Under the existing procedures he can enter only at reasonable times and invariably the convenience of the occupant is considered. I submit that the identical grounds for action elaborated today give more support—both legal and practical—to the present practice as approved in Frank v. State of Maryland, supra, than they do to this legalistic facade that the Court creates. In the Court's anxiety to limit its own holding as to mass searches it hopes to divert attention from the fact that it destroys the health and safety codes as they apply to individual inspections of specific problems as contrasted to area ones. While the latter are important, the individual inspection is often more so; that was true in District of Columbia v. Little and it may well be in both Camara and See. Frankly, I cannot understand how the Court can authorize warrants in wholesale fashion in the case of an area inspection, but hold the hand of the inspector when a specific dwelling is hazardous to the health and safety of its neighbors.
1
Conviction and sentence were jursuant to § 8.01.140 of the Fire Code:
'PENALTY. Anyone violating or failing to comply with any provision of this Title or lawful order of the Fire Chief pursuant hereto shall upon conviction thereof be punishable by a fine not to exceed Three Hundred Dollars ($300.00), or imprisonment in the City Jail for a period not to exceed ninety (90) days, or by both such fine and imprisonment, and each day of violation shall constitute a separate offense.'
2
'Dwelling' is defined in the Code as 'a building occupied exclusively for residential purposes and having not more than two (2) dwelling units.' Such dwellings are subject to the substantive provisions of the Code, but the Fire Chief's right to enter such premises is limited to times 'when he has reasonable cause to believe a violation of the provisions of this Title exists therein.' § 8.01.040. This provision also lacks a warrant procedure.
3
See Antitrust Civil Process Act of 1962, 76 Stat. 548, 15 U.S.C. §§ 1311—1314; H.R.Rep. No. 708, 83d Cong., 1st Sess. (1953), U.S.Code Cong. & Admin. News 1953, p. 2198 (reporting the 'factory inspection' amendments to the Federal Food, Drug, and Cosmetic Act, 67 Stat. 476, 21 U.S.C. § 374); Davis, The Administrative Power of Investigation, 56 Yale L.J. 1111; Handler, The Constitutionality of Investigations by the Federal Trade Commission, I & II, 28 Col.L.Rev. 708, 905; Schwartz Crucial Areas in Administrative Law, 34 Geo.Wash.L.Rev. 401, 425—430; Note, Constitutional Aspects of Federal Tax Investigations, 57 Col.L.Rev. 676.
4
In United States v. Cardiff, 344 U.S. 174, 73 S.Ct. 189, 97 L.Ed. 200, this Court held that the Federal Food, Drug, and Cosmetic Act did not compel that consent be given to warrantless inspections of establishments covered by the Act. (As a result, the statute was subsequently amended, see n. 3, supra.) See also Federal Trade Comm'n v. American Tobacco Co., 264 U.S. 298, 44 S.Ct. 336, 68 L.Ed. 696, 32 A.L.R. 786.
5
See United States v. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 40; Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614, 166 A.L.R. 531; United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 64 S.Ct. 805, 88 L.Ed. 1024; Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652. See generally 1 Davis, Administrative Law §§ 3.05—3.06 (1958).
6
We do not decide whether warrants to inspect business premises may be issued only after access is refused; since surprise may often be a crucial aspect of routine inspections of business establishments, the reasonableness of warrants issued in advance of inspection will necessarily very with the nature of the regulation involved and may differ from standards applicable to private homes.
7
Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453, relied upon by the Supreme Court of Washington, held only that government officials could demand access to business premises and, upon obtaining consent to search, could seize gasoline ration coupons issued by the Government and illegally possessed by the petitioner. Davis thus involved the reasonableness of a particular search of business premises but did not involve a search warrant issue.
1
Under the probable-cause standard laid down by the Court, it appears to me that the issuance of warrants could more appropriately be the function of the agency involved than that of the magistrate. This would also relieve magistrates of an intolerable burden. It is therefore unfortunate that the Court fails to pass on the validity of the use of administrative warrants.
2
DePass v. City of Spartanburg, 234 S.Ct. 198, 107 S.E.2d 350 (1959); City of St. Louis v. Evans, 337 S.W.2d 948 (Mo.1960); Camara v. Municipal Court, 237 Cal.App.2d 128, 46 Cal.Rptr. 585 (1965), pet. for hearing in Cal.Sup.Ct. den. (Civ. No. 22128) Nov. 19, 1965; Commonwealth v. Hadley, 351 Mass. 439, 222 N.E.2d 681, appeal docketed, Jan. 5, 1967, No. 1179, Misc., O.T.1966; City of Seattle v. See, 67 Wash.2d 475, 408 P.2d 262 (1965).
3
Indeed, appellant Camara was summoned to the office of the district attorney—but failed to appear—where he certainly could have raised these questions.
4
It is interesting to note that in each of the cases here the authorities were making periodic area inspections when the refusals to allow entry occurred. Under the holding of the Court today, 'probable cause' would therefore be present in each case and a 'paper warrant' would issue as a matter of course. This but emphasizes the absurdity of the holding.
| 01
|
387 U.S. 523
87 S.Ct. 1727
18 L.Ed.2d 930
Roland CAMARA, Appellant,v.MUNICIPAL COURT OF the CITY AND COUNTY OF SAN FRANCISCO.
No. 92.
Argued Feb. 15, 1967.
Decided June 5, 1967.
[Syllabus from pages 523-524 intentionally omitted]
Marshall W. Krause, San Francisco, Cal., for appellant.
Albert W. Harris, Jr., San Francisco, Cal., for appellee.
Mr. Justice WHITE delivered the opinion of the Court.
1
In Frank v. State of Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877, this Court upheld, by a five-to-four vote, a state court conviction of a homeowner who refused to permit a municipal health inspector to enter and inspect his premises without a search warrant. In Ohio ex rel. Eaton v. Price, 364 U.S. 263, 80 S.Ct. 1463, 4 L.Ed.2d 1708, a similar conviction was affirmed by an equally divided Court. Since those closely divided decisions, more intensive efforts at all levels of government to contain and eliminate urban blight have led to increasing use of such inspection techniques, while numerous decisions of this Court have more fully defined the Fourth Amendment's effect on state and municipal action. E.g., Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726. In view of the growing nationwide importance of the problem, we noted probable jurisdiction in this case and in See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943, to re-examine whether administrative inspection programs, as presently authorized and conducted, violate Fourth Amendment rights as those rights are enforced against the States through the Fourteenth Amendment. 385 U.S. 808, 87 S.Ct. 31, 17 L.Ed.2d 50.
2
Appellant brought this action in a California Superior Court alleging that he was awaiting trial on a criminal charge of violating the San Francisco Housing Code by refusing to permit a warrantless inspection of his residence, and that a writ of prohibition should issue to the criminal court because the ordinance authorizing such inspections is unconstitutional on its face. The Superior Court denied the writ, the District Court of Appeal affirmed, and he Supreme Court of California denied a petition for hearing. Appellant properly raised and had considered by the California courts the federal constitutional questions he now presents to this Court.
3
Though there were no judicial findings of fact in this prohibition proceeding, we shall set forth the parties' factual allegations. On November 6, 1963, an inspector of the Division of Housing Inspection of the San Francisco Department of Public Health entered an apartment building to make a routine annual inspection for possible violations of the city's Housing Code.1 The building's manager informed the inspector that appellant, lessee of the ground floor, was using the rear of his leasehold as a personal residence. Claiming that the building's occupancy permit did not allow residential use of the ground floor, the inspector confronted appellant and demanded that he permit an inspection of the premises. Appellant refused to allow the inspection because the inspector lacked a search warrant.
4
The inspector returned on November 8, again without a warrant, and appellant again refused to allow an inspection. A citation was then mailed ordering appellant to appear at the district attorney's office. When appellant failed to appear, two inspectors returned to his apartment on November 22. They informed appellant that he was required by law to permit an inspection under § 503 of the Housing Code:
5
'Sec. 503 RIGHT TO ENTER BUILDING. Authorized employees of the City departments or City agencies, so far as may be necessary for the performance of their duties, shall, upon presentation of proper credentials, have the right to enter, at reasonable times, any building, structure, or premises in the City to perform any duty imposed upon them by the Municipal Code.' Appellant nevertheless refused the inspectors access to his apartment without a search warrant. Thereafter, a complaint was filed charging him with refusing to permit a lawful inspection in violation of § 507 of the Code.2 Appellant was arrested on December 2 and released on bail. When his demurrer to the criminal complaint was denied, appellant filed this petition for a writ of prohibition.
6
Appellant has argued throughout this litigation that § 503 is contrary to the Fourth and Fourteenth Amendments in that it authorizes municipal officials to enter a private dwelling without a search warrant and without probable cause to believe that a violation of the Housing Code exists therein. Consequently, appellant contends, he may not be prosecuted under § 507 for refusing to permit an inspection unconstitutionally authorized by § 503. Relying on Frank v. State of Maryland, Eaton v. Price, and decisions in other States,3 the District Court of Appeal held that § 503 does not violate Fourth Amendment rights because it 'is part of a regulatory scheme which is essentially civil rather than criminal in nature, inasmuch as that section creates a right of inspection which is limited in scope and may not be exercised under unreasonable conditions.' Having concluded that Frank v. State of Maryland, to the extent that it sanctioned such warrantless inspections, must be overruled, we reverse.
I.
7
The Fourth Amendment provides that, 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' The basic purpose of this Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials. The Fourth Amendment thus gives concrete expression to a right of the people which 'is basic to a free society.' Wolf v. People of State of Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782. As such, the Fourth Amendment is enforceable against the States through the Fourteenth Amendment. Ker v. State of California, 374 U.S. 23, 30, 83 S.Ct. 1623, 1628, 10 L.Ed.2d 726.
8
Though there has been general agreement as to the fundamental purpose of the Fourth Amendment, translation of the abstract prohibition against 'unreasonable searches and seizures' into workable guidelines for the decision of particular cases is a difficult task which has for many years divided the members of this Court. Nevertheless, one governing principle, justified by history and by current experience, has consistently been followed: except in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant. See, e.g., Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856; United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59; McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153; Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145. As the Court explained in Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436:
9
'The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.'
10
In Frank v. State of Maryland, this Court upheld the conviction of one who refused to permit a warrantless inspection of private premises for the purposes of locating and abating a suspected public nuisance. Although Frank can arguably be distinguished from this case on its facts,4 the Frank opinion has generally been interpreted as carving out an additional exception to the rule that warrantless searches are unreasonable under the Fourth Amendment. See Eaton v. Price, supra. The District Court of Appeal so interpreted Frank in this case, and that ruling is the core of appellant's challenge here. We proceed to a re-examination of the factors which er suaded the frank majority to adopt this construction of the Fourth Amendment's prohibition against unreasonable searches.
11
To the Frank majority, municipal fire, health, and housing inspection programs 'touch at most upon the periphery of the important interests safeguarded by the Fourteenth Amendment's protection against official intrusion,' 359 U.S., at 367, 79 S.Ct., at 809, because the inspections are merely to determine whether physical conditions exist which do not comply with minimum standards prescribed in local regulartory ordinances. Since the inspector does not ask that the property owner open his doors to a search for 'evidence of criminal action' which may be used to secure the owner's criminal conviction, historic interests of 'self-protection' jointly protected by the Fourth and Fifth Amendments5 are said not to be involved, but only the less intense 'right to be secure from intrusion into personal privacy.' Id., at 365, 79 S.Ct. at 808.
12
We may agree that a routine inspection of the physical condition of private property is a less hostile intrusion than the typical policeman's search for the fruits and instrumentalities of crime. For this reason alone, Frank differed from the great bulk of Fourth Amendment cases which have been considered by this Court. But we cannot agree that the Fourth Amendment interests at stake in these inspection cases are merely 'peripheral.' It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.6 For instance, even the most law-abiding citizen has a very tangible interest in limiting the circumstances under which the sanctity of his home may be broken by official authority, for the possibility of criminal entry under the guise of official sanction is a serious threat to personal and family security. And even accepting Frank's rather remarkable premise, inspections of the kind we are here considering do in fact jeopardize 'self-protection' interests of the property owner. Like most regulatory laws, fire, health, and housing codes are enforced by criminal processes. In some cities, discovery of a violation by the inspector leads to a criminal complaint.7 Even in cities where discovery of a violation produces only an administrative compliance order,8 refusal to comply is a criminal offense, and the fact of compliance is verified by a second inspection, again without a warrant.9 Finally, as this case demonstrates, refusal to permit an inspection is itself a crime, punishable by fine or even by jail sentence.
13
The Frank majority suggested, and appellee reasserts, two other justificaton § for permitting administrative health and safety inspections without a warrant. First, it is argued that these inspections are 'designed to make the least possible demand on the individual occupant.' 359 U.S., at 367, 79 S.Ct., at 809. The ordinances authorizing inspections are hedged with safeguards, and at any rate the inspector's particular decision to enter must comply with the constitutional standard of reasonableness even if he may enter without a warrant.10 In addition, the argument proceeds, the warrant process could not function effectively in this field. The decision to inspect an entire municipal area is based upon legislative or administrative assessment of broad factors such as the area's age and condition. Unless the magistrate is to review such policy matters, he must issue a 'rubber stamp' warrant which provides no protection at all to the property owner.
14
In our opinion, these arguments unduly discount the purposes behind the warrant machinery contemplated by the Fourth Amendment. Under the present system, when the inspector demands entry, the occupant has no way of knowing whether enforcement of the municipal code involved requires inspection of his premises, no way of knowing the lawful limits of the inspector's power to search, and no way of knowing whether the inspector himself is acting under proper authorization. These are questions which may be reviewed by a neutral magistrate without any reassessment of the basic agency decision to canvass an area. Yet, only by refusing entry and risking a criminal conviction can the occupant at present challenge the inspector's decision to search. And even if the occupant possesses sufficient fortitude to take this risk, as appellant did here, he may never learn any more about the reason for the inspection than that the law generally allows housing inspectors to gain entry. The practical effect of this system is to leave the occupant subject to the discretion of the official in the field. This is precisely the discretion to invade private property which we have consistently circumscribed by a requirement that a disinterested party warrant the need to search. See cases cited, p. 529, supra. We simply cannot say that the protections provided by the warrant procedure are not needed in this context; broad statutory safeguards are no substitute for individualized review, particularly when those safeguards may only be invoked at the risk of a criminal penalty.
15
The final justification suggested for warrantless administrative searches is that the public interest demands such a rule: it is vigorously argued that the health and safety of entire urban populations is dependent upon enforcement of minimum fire, housing, and sanitation standards, and that the only effective means of enforcing such codes is by routine systematized inspection of all physical structures. Of course, in applying any reasonableness standard, including one of constitutional dimension, an argument that the public interest demands a particular rule must receive careful consideration. But we think this argument misses the mark. The question is not, at this stage at least, whether these inspections may be made, but whether they may be made without a warrant. For example, to say that gambling raids may not be made at the discretion of the police without a warrant is not necessarily to say that gambling raids may never be made. In assessing whether the public interest demands creaton of a general exception to the Fourth Amendment's warrant requirement, the question is not whether the public interest justifies the type of search in question, but whether the authority to search should be evidenced by a warrant, which in turn depends in part upon whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search. See Schmerber v. State of California, 384 U.S. 757, 770—771, 86 S.Ct. 1826, 1835—1836, 16 L.Ed.2d 908. It has nowhere been urged that fire, health, and housing code inspection programs could not achieve their goals within the confines of a reasonable search warrant requirement. Thus, we do not find the public need argument dispositive.
16
In summary, we hold that administrative searches of the kind at issue here are significant intrusions upon the interests protected by the Fourth Amendment, that such searches when authorized and conducted without a warrant procedure lack the traditional safeguards which the Fourth Amendment guarantees to the individual, and that the reasons put forth in Frank v. State of Maryland and in other cases for upholding these warrantless searches are insufficient to justify so substantial a weakening of the Fourth Amendment's protections. Because of the nature of the municipal programs under consideration, however, these conclusions must be the beginning, not the end, of our inquiry. The Frank majority gave recognition to the unique character of these inspection programs by refusing to require search warrants; to reject that disposition does not justify ignoring the question whether some other accommodation between public need and individual rights is essential.
II.
17
The Fourth Amendment provides that, 'no Warrants shall issue, but upon probable cause.' Borrowing from more typical Fourth Amendment cases, appellant argues not only that code enforcement inspection programs must be circumscribed by a warrant procedure, but also that warrants should issue only when the inspector possesses probable cause to believe that a particular dwelling contains violations of the minimum standards prescribed by the code being enforced. We disagree.
18
In cases in which the Fourth Amendment requires that a warrant to search be obtained, 'probable cause' is the standard by which a particular decision to search is tested against the constitutional mandate of reasonableness. To apply this standard, it is obviously necessary first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen. For example, in a criminal investigation, the police may undertake to recover specific stolen or contraband goods. But that public interest would hardly justify a sweeping search of an entire city conducted in the hope that these goods might be found. Consequently, a search for these goods, even with a warrant, is 'reasonable' only when there is 'probable cause' to believe that they will be uncovered in a particular dwelling.
19
Unlike the search pursuant to a criminal investigation, the inspection programs at issue here are aimed at securing city-wide compliance with minimum physical standards for private property. The primary governmental interest at stake is to prevent even the unintentional development of conditions which are hazardous to public health and safety. Because fires and epidemics may ravage large urban areas, because unsightly conditions adversely affect the economic values of neighboring structures, numerous courts have upheld the police power of municipalities to impose and enforce such minimum standards even upon existing structures.11 In determining whether a particular inspection is reasonable—and thus in determining whether there is probable cause to issue a warrant for that inspection—the need for the inspection must be weighed in terms of these reasonable goals of code enforcement.
20
There is unanimous agreement among those most familiar with this field that the only effective way to seek universal compliance with the minimum standards required by municipal codes is through routine periodic inspections of all structures.12 It is here that the probable cause debate is focused, for the agency's decision to conduct an area inspection is unavoidably based on its appraisal of conditions in the area as a whole, not on its knowledge of conditions in each particular building. Appellee contends that, if the probable cause standard urged by appellant is adopted, the area inspection will be eliminated as a means of seeking compliance with code standards and the reasonable goals of code enforcement will be dealt a crushing blow.
21
In meeting this contention, appellant argues first, that his probable cause standard would not jeopardize area inspection programs because only a minute portion of the population will refuse to consent to such inspections, and second, that individual privacy in any event should be given preference to the public interest in conducting such inspections. The first argument, even if true, is irrelevant to the question whether the area inspection is reasonable within the meaning of the Fourth Amendment. The second argument is in effect an assertion that the area inspection is an unreasonable search. Unfortunately, there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails. But we think that a number of persuasive factors combine to support the reasonableness of area code-enforcement inspections. First, such programs have a long history of judicial and public acceptance. See Frank v. State of Maryland, 359 U.S., at 367—371, 79 S.Ct. at 809—811. Second, the public interest demands that all dangerous conditions be prevented or abated, yet it is doubtful that any other canvassing technique would achieve acceptable results. Many such conditions—faulty wiring is an obvious example—are not observable from outside the building and indeed may not be apparent to the inexpert occupant himself. Finally, because the inspections are neither personal in nature nor aimed at the discovery of evidence of crime, they involve a relatively limited invasion of the urban citizen's privacy. Both the majority and the dissent in Frank emphatically supported this conclusion:
22
'Time and experience have forcefully taught that the power to inspect dwelling places, either as a matter of systematic area-by-area search or, as here, to treat a specific problem, is of indispensable importance to the maintenance of community health; a power that would be greatly hobbled by the blanket requirement of the safeguards necessary for a search of evidence of criminal acts. Th n eed for preventive action is great, and city after city has seen this need and granted the power of inspection to its health officials; and these inspections are apparently welcomed by all but an insignificant few. Certainly, the nature of our society has not vitiated the need for inspections first thought necessary 158 years ago, nor has experience revealed any abuse or inroad on freedom in meeting this need by means that history and dominant public opinion have sanctioned.' 359 U.S., at 372, 79 S.Ct. at 811.
23
'* * * This is not to suggest that a health official need show the same kind of proof to a magistrate to obtain a warrant as one must who would search for the fruits or instrumentalities of crime. Where considerations of health and safety are involved, the facts that would justify an inference of 'probable cause' to make an inspection are clearly different from those that would justify such an inference where a criminal investigation has been undertaken. Experience may show the need for periodic inspections of certain facilities without a further showing of cause to believe that substandard conditions dangerous to the public are being maintained. The passage of a certain period without inspection might of itself be sufficient in a given situation to justify the issuance of warrant. The test of 'probable cause' required by the Fourth Amendment can take into account the nature of the search that is being sought.' 359 U.S., at 383, 79 S.Ct. at 87 (Mr. Justice Douglas, dissenting).
24
Having concluded that the area inspection is a 'reasonable' search of private property within the meaning of the Fourth Amendment, it is obvious that 'probable cause' to issue a warrant to inspect must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling. Such standards, which will vary with the municipal program being enforced, may be based upon the passage of time, the nature of the building (e.g., a multifamily apartment house), or the condition of the entire area, but they will not necessarily depend upon specific knowledge of the condition of the particular dwelling. It has been suggested that so to vary the probable cause test from the standard applied in criminal cases would be to authorize a 'synthetic search warrant' and thereby to lessen the overall protections of the Fourth Amendment. Frank v. State of Maryland, 359 U.S., at 373, 79 S.Ct. at 812. But we do not agree. The warrant procedure is designed to guarantee that a decision to search private property is justified by a reasonable governmental interest. But reasonableness is still the ultimate standard. If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant. Cf. Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614. Such an approach neither endangers time-honored doctrines applicable to criminal investigations nor makes a nullity of the probable cause requirement in this area. It merely gives full recognition to the competing public and private interests here at stake and, in so doing, best fulfills the historic purpose behind the constitutional right to be free from unreasonable government invasions of privacy. See Eaton v. Price, 364 U.S., at 273—274, 80 S.Ct., at 1468—1469 (opinion of Mr. Justice Brennan).
III.
25
Since our holding emphasizes the controlling standard of reasonableness, nothing we say today is intended to foreclose prompt inspections, even without a warrant, that the law has traditionally upheld in emergency situations. See North American Cold Storage Co. v. City of Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (seizure of unwholesome food); Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (compulsory smallpox vaccination); Compagnie Francaise de Navigation a Vapeur v. Louisiana State Board of Health, 186 U.S. 380, 22 S.Ct. 811, 46 L.Ed. 129 (health quarantine); Kroplin v. Truax, 119 Ohio St. 610, 165 N.E. 498 (summary destruction of tubercular cattle). On the other hand, in the case of most routine area inspections, there is no compelling urgency to inspect at a particular time or on a particular day. Moreover, most citizens allow inspections of their property without a warrant. Thus, as a practical matter and in light of the Fourth Amendment's requirement that a warrant specify the property to be searched, it seems likely that warrants should normally be sought only after entry is refused unless there has been a citizen complaint or there is other satisfactory reason for securing immediate entry. Similarly, the requirement of a warrant procedure does not suggest any change in what seems to be the prevailing local policy, in most situations, of authorizing entry, but not entry by force, to inspect.
IV.
26
In this case, appellants has been charged with a crime for his refusal to permit housing inspectors to enter his leasehold without a warrant. There was no emergency demanding immediate access; in fact, the inspectors made three trips to the building in an attempt to obtain appellant's consent to search. Yet no warrant was obtained and thus appellant was unable to verify either the need for or the appropriate limits of the inspection. No doubt, the inspectors entered the public portion of the building with the consent of the landlord, through the building's manager, but appellee does not contend that such consent was sufficient to authorize inspection of appellant's premises. Cf. Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856; Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828; McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153. Assuming the facts to be as the parties have alleged, we therefore conclude that appellant had a constitutional right to insist that the inspectors obtain a warrant to search and that appellant may not constitutionally be convicted for refusing to consent to the inspection. It appears from the opinion of the District Court of Appeal that under these circumstances a writ of prohibition will issue to the criminal court under California law.
27
The judgment is vacated and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.
28
Judgment vacated and case remanded.
1
The inspection was conducted pursuant to § 86(3) of the San Francisco Municipal Code, which provides that apartment house operators shall pay an annual license fee in part to defray the cost of periodic inspections of their buildings. The inspections are to be made by the Bureau of Housing Inspection 'at least once a year and as often thereafter as may be deemed necessary.' The permit of occupancy, which prescribes the apartment units which a building may contain, is not issued until the license is obtained.
2
'Sec. 507 PENALTY FOR VIOLATION. Any person, the owner or his authorized agent who violates, disobeys, omits, neglects, or refuses to comply with, or who resists or opposes the execution of any of the provisions of this Code, or any order of the Superintendent, the Director of Public Works, or the Director of Public Health made pursuant to this Code, shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding five hundred dollars ($500.00), or by imprisonment, not exceeding six (6) months or by both such fine and imprisonment, unless otherwise provided in this Code, and shall be deemed guilty of a separate offense for every day such violation, disobedience, omission, neglect or refusal shall continue.'
3
Givner v. State, 210 Md. 484, 124 A.2d 764 (1956); City of St. Louis v. Evans, 337 S.W.2d 948 (Mo.1960); State ex rel. Eaton v. Price, 168 Ohio St. 123, 151 N.E.2d 523 (1958) aff'd by an equally divided Court, 364 U.S. 263, 80 S.Ct. 1463, 4 L.Ed.2d 1708 (1960). See also State v. Rees, 258 Iowa 813, 139 N.W.2d 406 (1966); Commonwealth v. Hadley, 351 Mass. 439, 222 N.E.2d 681 (1966), appeal docketed Jan. 5, 1967, No. 1179, Misc., O.T.1966; People v. Laverne, 14 N.Y.2d 304, 251 N.Y.S.2d 452, 200 N.E.2d 441 (1964).
4
In Frank, the Baltimore ordinance required that the health inspector 'have cause to suspect that a nuisance exists in any house, cellar or enclosure' before he could demand entry without a warrant, a requirement obviously met in frank because the inspector observed extreme structural decay and a pile of rodent feces on the appellant's premises. Section 503 of the San Francisco Housing Code has no such 'cause' requirement, but neither did the Ohio ordinance at issue in Eaton v. Price, a case which four Justices thought was controlled by Frank. 364 U.S., at 264, 265, 80 S.Ct. 1464, 1465, n. 2 (opinion of Mr. Justice Brennan).
5
See Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746. Compare Schmerber v. State of California, 384 U.S. 757, 766—772, 86 S.Ct. 1826, 1833—1836, 16 L.Ed. 908.
6
See Abel v. United States, 362 U.S. 217, 254—256, 80 S.Ct. 683, 705—706, 4 L.Ed.2d 668 (Mr. Justice Brennan, dissenting); District of Columbia v. Little, 85 U.S.App.D.C. 242, 178 F.2d 13, 13 A.L.R.2d 954, aff'd, 339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599.
7
See New York, N.Y., Administrative Code § D26—8.0 (1964).
8
See Washington, D.C., Housing Regulations § 2104.
9
This is the more prevalent enforcement procedure. See Note, Enforcement of Municipal Housing Codes, 78 Harv.L.Rev. 801, 813—816.
10
The San Francisco Code requires that the inspector display proper credentials, that he inspect 'at reasonable times,' and that he not obtain entry by force, at least when there is no emergency. The Baltimore ordinance in Frank required that the inspector 'have cause to suspect that a nuisance exists.' Some cities notify residents in advance, by mail or posted notice, of impending area inspections. State courts upholding these inspections without warrants have imposed a general reasonableness requirement. See cases cited, n. 3, supra.
11
See Abbate Bros. v. City of Chicago, 11 Ill.2d 337, 142 N.E.2d 691; Cty of Louisville v. Thompson, 339 S.W.2d 869 (Ky.); Adamec v. Post, 273 N.Y. 250, 7 N.E.2d 120, 109 A.L.R. 1110; Paquette v. City of Fall River, 338 Mass. 368, 155 N.E.2d 775; Richards v. City of Columbia, 227 S.C. 538, 88 S.E.2d 683; Boden v. City of Milwaukee, 8 Wis.2d 318, 99 N.W.2d 156.
12
See Osgood & Zwerner, Rehabilitation and Conservation, 25 Law & Contemp.Prob. 705, 718 and n. 43; Schwartz, Crucial Areas in Administrative Law, 34 Geo.Wash.L.Rev. 401, 423 and n. 93; Comment, Rent Withholding and the Improvement of Substandard Housing, 53 Calif.L.Rev. 304, 316—317; Note, Enforcement of Municipal Housing Codes, 78 Harv.L.Rev. 801, 807, 851; Note, Municipal Housing Codes, 69 Harv.L.Rev. 1115, 1124—1125. Section 311(a) of the Housing and Urban Development Act of 1965, 79 Stat. 478, 42 U.S.C. § 1468 (1964 ed., Supp. I), authorizes grants of federal funds 'to cities, other municipalities, and counties for the purpose of assisting such localities in carrying out programs of concentrated code enforcement in deteriorated or deteriorating areas in which such enforcement, together with those public improvements to be provided by the locality, may be expected to arrest the decline of the area.'
| 01
|
387 U.S. 456
87 S.Ct. 1776
18 L.Ed.2d 886
COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.ESTATE of Herman J. BOSCH, Deceased. The SECOND NATIONAL BANK OF NEW HAVEN, Petitioner, v. UNITED STATES.
Nos. 673, 240.
Argued March 22, 1967.
Decided June 5, 1967.
No. 673:
Jack S. Levin, Washington, D.C., for petitioner.
John W. Burke, New York City, for respondent.
No. 240:
Curtiss K. Thompson, New Haven, Conn., for petitioner.
Jack S. Levin, Washington, D.C., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
These two federal estate tax cases present a common issue for our determination: Whether a federal court or agency in a federal estate tax controversy is conclusively bound by a state trial court adjudication of property rights or characterization of property interests when the United States is not made a party to such proceeding.
2
In No. 673, Commissioner of Internal Revenue v. Estate of Bosch, 363 F.2d 1009, the Court of Appeals for the Second Circuit held that since the state trial court had 'authoritatively determined' the rights of the parties, it was not required to delve into the correctness of that state court decree. In No. 240, Second National Bank of New Haven, Executor v. United States, 351 F.2d 489, another panel of the same Circuit held that the 'decrees of the Connecticut Probate Court * * * under no circumstances can be construed as binding' on a federal court in subsequent litigation involving federal revenue laws. Whether these cases conflict in principle or not, which is disputed here, there does exist a widespread conflict among the circuits1 over the question and we granted certiorari to resolve it. 385 U.S. 966, 968, 87 S.Ct. 499, 512, 17 L.Ed.2d 432. He hold that where the federal estate tax liability turns upon the character of a property interest held and transferred by the decedent under state law, federal authorities are not bound by the determination made of such property interest by a state trial court.
I.
3
(a) No. 673, Commissioner v. Estate of Bosch.
4
In 1930, decedent, a resident of New York, created a revocable trust which, as amended in 1931, provided that the income from the corpus was to be paid to his wife during her lifetime. The instrument also gave her a general power of appointment, in default of which it provided that half of the corpus was to go to his heirs and the remaining half was to go to those of his wife. In 1951 the wife executed an instrument purporting to release the general power of appointment and convert it into a special power. Upon decedent's death in 1957, respondent, in paying federal estate taxes, claimed a marital deduction for the value of the widow's trust. The Commissioner determined, however, that the trust corpus did not qualify for the deduction under § 2056(b)(5)2 of the 1954 Internal Revenue Code and levied a deficiency. Respondent then filed a petition for redetermination in the Tax Court. The ultimate outcome of the controversy hinged on whether the release executed by Mrs. Bosch in 1951 was invalid—as she claimed it to be—in which case she would have enjoyed a general power of appointment at her husband's death and the trust would therefore qualify for the maritalde duction. While the Tax Court proceeding was pending, the respondent filed a petition in the Supreme Court of New York for settlement of the trustee's account; it also sought a determination as to the validity of the release under state law. The Tax Court, with the Commissioner's consent, abstained from making its decision pending the outcome of the state court action. The state court found the release to be a nullity; the Tax Court then accepted the state court judgment as being an 'authoritative exposition of New York law and adjudication of the property rights involved,' 43 T.C. 120, 124, and permitted the deduction. On appeal, a divided Court of Appeals affirmed. It held that '(t)he issue is * * * not whether the federal court is 'bound by' the decision of the state tribunal, but whether or not a state tribunal has authoritatively determined the rights under state law of a party to the federal action.' 363 F.2d, at 1013. The court concluded that the 'New York judgment, rendered by a court which had jurisdiction over parties and subject matter, authoritatively settled the rights of the parties, not only for New York, but also for purposes of the application to those rights of the relevant provisions of federal tax law.' Id., at 1014. It declared that since the state court had held the wife to have a general power of appointment under its law, the corpus of the trust qualified for the marital deduction. We do not agree and reverse.
5
Petitioner in this case is the executor of the will of one Brewster, a resident of Connecticut who died in September of 1958. The decedent's will, together with a codicil thereto, was admitted to probate by the Probate Court for the District of Hamden, Connecticut. The will was executed in 1958 and directed the payment 'out of my estate my just debts and funeral expenses and any death taxes which may be legally assessed * * *.' It further directed that the 'provisions of any statute requiring the apportionment or proration of such taxes among the beneficiaries of this will or the transferees of such property, or the ultimate payment of such taxes by them, shall be without effect in the settlement of my estate.' The will also provided for certain bequests and left the residue in trust; one-third of the income from such trust was to be given to decedent's wife for life, and the other two-thirds for the benefit of his grandchildren that were living at the time of his death. In July of 1958, the decedent executed a codicil to his will, the pertinent part of which gave his wife a general testamentary power of appointment over the corpus of the trust provided for her. This qualified it for the maritl deduction as provided by the Internal Revenue Code of 1954, § 2056(b)(5). In the federal estate tax return filed in 1959, the widow's trust was claimed as part of the marital deduction and that was computed as one-third of the residue of the estate before the payment of federal estate taxes. It was then deducted, along with other deductions not involved here, from the total value of the estate and the estate tax was then computed on the basis of the balance. The Commissioner disallowed the claimed deduction and levied a deficiency which was based on the denial of the widow's allowance as part of the marital deduction and the reduction of the marital deduction for the widow's trust, by requiring that the estate tax be charged to the full estate prior to the deduction of the widow's trust. After receipt of the deficiency notice, the petitioner filed an application in the state probate court to determine, under state law, the proration of the federal estate taxes paid. Notice of such proceeding was given all interested parties and the District Director of Internal Revenue. The guardian ad litem for the minor grandchildren filed a verified report stating that there was no legal objection to the proration of the federal estate tax as set out in the application of the executor. Neither the adult grandchildren nor the District Director of Internal Revenue filed or appeared in the Probate Court. The court then approved the application, found that the decedent's will did not negate the application of the state proration statute and ordered that the entire federal tax be prorated and charged against the grandchildren's trusts. This interpretation allowed the widow a marital deduction of some $3,600,000 clear of all federal estate tax. The Commissioner, however, subsequently concluded that the ruling of the Probate Court was erroneous and not binding on him, and he assessed a deficiency. After payment of the deficiency, petitioner brought this suit in the United States District Court for a refund. On petitioner's motion for summary judgment, the Government claimed that there was a genuine issue of material fact, i.e., whether the probate proceedings had been adversary in nature. The District Court held that the 'decrees of the Connecticut Probate Court * * * under no circumstances can be construed as binding and conclusive upon a federal court in construing and applying the federal revenue laws.' 222 F.Supp. 446, 457. The court went on to hold that under the standard applied by the state courts, there was no 'clear and unambiguous direction against proration,' and that therefore the state proration statute applied. Id., at 454. The Court of Appeals reversed, holding that the decedent's will 'would seem to be clear and unambiguous to the effect that taxes were to come out of his residual estate and that despite any contrary statute the testator specifically wished to avoid any proration.' 351 F.2d, at 491. It agreed with the District Court that, in any event, the judgment of the State Probate Court was not binding on the federal court.
II.
6
Petitioner in No. 240 raises the additional point that the Court of Appeals was incorrect in holding that decedent's will clearly negated the application of the state proration statute. While we did not limit the grant of certiorari, we affirm without discussion the holding of the Court of Appeals on the point. The issue presents solely a question of state law and '(w)e ordinarily accept the determination of local law by the Court of Appeals * * * and we will not disturb it here.' Ragan v. Merchants Transfer Co., 337 U.S. 530, 534, 69 S.Ct. 1233, 1235, 93 L.Ed. 1520 (1949); General Box Co. v. United States, 351 U.S. 159, 165, 76 S.Ct. 728, 732, 100 L.Ed. 1055 (1956); The Tungus v. Skovgaard, 358 U.S. 588, 596, 79 S.Ct. 503, 508, 3 L.Ed.2d 524 (1959). The Court of Appeals did not pass on the correctness of the resolution of the state law problem involved in Bosch, No. 673, and it is remanded for that purpose.
III.
7
The problem of what effect must be given a state trial court decree where the matter decided there is determinative of federal estate tax consequences has long burdened the Bar and the courts. This Court has not addressed itself to the problem for nearly a third of a century.3 In Freuler v. Helvering, 291 U.S. 35, 54 S.Ct. 308, 78 L.Ed. 634 (1934), this Court, declining to find collusion between the parties on the record as presented there, held that a prior in personam judgment in the state court to which the United States was not made a party, '(o)bviously * * * had not the effect of res judicata, and could not furnish the basis for invocation of the full faith and credit clause * * *.' At 43, 54 S.Ct. at 311. In Freuler's wake, at least three positions have emerged among the circuits. The first of these holds that
8
'* * * if the question at issue is fairly presented to the state court for its independent decision and is so decided by the court the resulting judgment if binding upon the parties under the state law is conclusive as to their property rights in the federal tax case * * *.' Gallagher v. Smith, 223 F.2d 218, at 225.
9
The opposite view is expressed in Faulkerson's Estate v. United States, 301 F.2d 231. This view seems to approach that of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), in that the federal court will consider itself bound by the state court decree only after independent examination of the state law as determined by the highest court of the State. The Government urges that an intermediate position be adopted; it suggests that a state trial court adjudication is binding in such cases only when the judgment is the result of an adversary proceeding in the state court. Pierpont v. C.I.R., 336 F.2d 277. Also see the dissent of Friendly, J., in Bosch, No. 673.
10
We look at the problem differently. First, the Commissioner was not made a party to either of the state proceedings here and neither had the effect of res judicata, Freuler v. Helvering, supra; nor did the principle of collateral estoppel apply. It can hardly be denied that both state proceedings were brought for the purpose of directly affecting federal estate tax liability. Next, it must be remembered that it was a federal taxing statute that the Congress enacted and upon which we are here passing. Therefore, in construing it, we must look to the legislative history surrounding it. We find that the report of the Senate Finance Committee recommending enactment of the marital deduction used very guarded language in referring to the very question involved here. It said that 'proper regard,' not finality, 'should be given to interpretations of the will' by state courts and then only when entered by a court 'in a bona fide adversary proceeding.' S.Rep. No. 1013, Pt. 2, 80th Cong., 2d Sess., 4. We cannot say that the authors of this directive intended that the decrees of state trial courts were to be conclusive and binding on the computation of the federal estate tax as levied by the Congress. If the Congress had intended state trial court determinations to have that effect on the federal actions, it certainly would have said so—which it did not do. On the contrary, we believe it intended the marital deduction to be strictly construed and applied. Not only did it indicate that only 'proper regard' was to be accorded state decrees but it placed specific limitations on the allowance of the deduction as set out in § 2056(b), (c), and (d). These restrictive limitations clearly indicate the great care that Congress exercised in the drawing of the Act and indicate also a definite concern with the elimination of loopholes and escape hatches that might jeopardize the federal revenue. This also isin keeping with the long-established policy of the Congress, as expressed in the Rules of Decision Act, 28 U.S.C. § 1652. There it is provided that in the absence of federal requirements such as the Constitution or Acts of Congress, the 'laws of the several states * * * shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.' This Court has held that judicial decisions are 'laws of the * * * state' within the section. Erie R. Co. v. Tompkins, supra; Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); King v. Order of United Commercial Travelers, 333 U.S. 153, 68 S.Ct. 488, 92 L.Ed. 608 (1948). Moreover, even in diversity cases this Court has further held that while the decrees of 'lower state courts' should be 'attributed some weight * * * the decision (is) not controlling * * *' where the highest court of the State has not spoken on the point. King v. Order of United Commercial Travelers, supra, at 160—161, 68 S.Ct. at 492. And in West v. American Tel. & Tel. Co., 311 U.S. 223, 61 S.Ct. 179, 85 L.Ed. 139 (1940), this Court further held that 'an intermediate appellate state court * * * is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.' At 237, 61 S.Ct. at 183 (Emphasis supplied.) Thus, under some conditions, federal authority may not be bound even by an intermediate state appellate court ruling. It follows here then, that when the application of a federal statute is involved, the decision of a state trial court as to an underlying issue of state law should a fortiori not be controlling. This is but an application of the rule of Erie R. Co. v. Tompkins, supra, where state law as announced by the highest court of the State is to be followed. This is not a diversity case but the same principle may be applied for the same reasons, viz., the underlying substantive rule involved a based on state law and the State's highest court is the best authority on its own law. If there be no decision by that court then federal authorities must apply what they find to be the state law after giving 'proper regard' to relevant rulings of other courts of the State. In this respect, it may be said to be, in effect, sitting as a state court. Bernhardt v. Polygraphic Co., 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199 (1956).
11
We believe that this would avoid much of the uncertainty that would result from the 'non-adversary' approach and at the same time would be fair to the taxpayer and protect the federal revenue as well.
12
The judgment in No. 240 is therefore affirmed while that in No. 673 is reversed and remanded for further proceedings not inconsistent with this opinion. It is so ordered.
13
Judgment in No. 240 affirmed and judgment in No. 673 reversed and case remanded.
14
Mr. Justice DOUGLAS, dissenting.
15
As the Court says, the issue in these cases is not whether the Commissioner is 'bound' by the state court decrees. He was not a party to the state court proceedings and therefore cannot be bound in the sense of res judicata. The question simply is whether, absent fraud or collusion, a federal court can ignore a state court judgment when federal taxation depends upon property rights and when property rights rest on state law, as they do here.
16
Since our 1938 decision in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, an unbroken line of cases has held that the federal courts must look to state legislation, state decisions, state administrative practice, for the state law that is to be applied. See, e.g., Cities Service Oil Co. v. Dunlap, 308 U.S. 208, 60 S.Ct. 201, 84 L.Ed. 196; Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199. Those were diversity cases; and in them we have never suggested that the federal court may ignore a relevant state court decision because it was not entre d by the highest state court. Indeed, we have held that the federal court is obligated to follow the decision of a lower state court in the absence of decisions of the State Supreme Court showing that the state law is other than announced by the lower court. See, e.g., Fidelity Union Trust Co. v. Field, 311 U.S. 169, 61 S.Ct. 176, 85 L.Ed. 109; West v. A.T. & T. Co., 311 U.S. 223, 61 S.Ct. 179, 85 L.Ed. 139; Six Companies of California v. Joint Highway District, 311 U.S. 180, 61 S.Ct. 186, 85 L.Ed. 114; Stoner v. New York Life Ins. Co., 311 U.S. 464, 61 S.Ct. 336, 85 L.Ed. 284.
17
It is true that in King v. Order of United Commercial Travelers, 333 U.S. 153, 68 S.Ct. 488, 92 L.Ed. 608, we held that a federal court or appeals did not have to accept the decision of a state court of common pleas on a matter of state law. But that case was unique. The state court had relied upon the decision of a federal district court; the 'Court of Common Pleas (did) not appear to have such importance and compence within (the State's) own judicial system that its decisions should be taken as authoritative expositions of that State's 'law" (id., at 161, 68 S.Ct. at 492); 'the difficulty of locating Common Pleas decisions (was) a matter of great practical significance' (ibid.); another state court had handed down an opinion rejecting the reasoning of the court of common pleas and espousing the reasoning of the Court of Appeals, illustrating 'the perils of interpreting a Common Pleas decision as a definitive expression of (state law)' (333 U.S., at 162, 68 S.Ct. at 493); and the interpretation of the Court of Appeals, which rejected the decision of the court of common pleas, was strongly supported by the decisions of the State Supreme Court. We stressed that our decision was not 'to be taken as promulgating a general rule that federal courts need never abide by determinations of state law by state trial courts.' Ibid.
18
Even before it was held that federal courts must apply state law in diversity cases, it was incumbent upon federal courts to take state law from state court decisions when federal tax consequences turned on state law. In Freuler v. Helvering, 291 U.S. 35, 54 S.Ct. 308, 78 L.Ed. 634, the trustee under a decedent's will had included in income distributed to the life beneficiaries amounts representing depreciation of the corpus. The life beneficiaries did not include the amounts constituting depreciation and the Commissioner asserted a deficiency. While the case was on appeal to the Board of Tax Appeals, the trustee filed an accounting in the state probate court, requesting its approval. The state court held that the life beneficiaries were not entitled to the distribution of depreciation of the corpus, and ordered that the life beneficiaries repay the trustee for the amount improperly distributed to them. In the tax litigation, the Court of Appeals ignored the state court determination on the ground that 'no orders of the probate court, the effect of which would relate to what are deductions to be allowed under the national income taxing law, are conclusive and binding on the federal courts * * *.' Commissioner of Internal Revenue v. Freuler, 9 Cir., 62 F.2d 733, 735. The Court reversed, holding that the probate court order was an order governing distribution within § 219 of the Revenue Act of 1921. It went on to say:
19
'Moreover, the decision of (the probate) court, until reversed or overruled, establishes the law of California respecting distribution of the trust estate. It is none the less a declaration of the law of the state because not based on a statute, or earlier decisions. The rights of the beneficiaries are property rights and the court has adjudicated them. What the law as announced by that court adjudges distributable is, we think, to be so considered in applying section 219 of the Revenue Act of 1921.' 291 U.S. at 45, 54 S.Ct. at 312.
20
The issue of the effect of a state court determination came up again in Blair v. Commissioner, 300 U.S.5, 57 S.Ct. 330, 81 L.Ed. 465. The issue in that case was whether a beneficiary had effectively assigned income from a trust. In prior tax litigation, a federal court held that the trust was a spendthrift trust and that, therefore, the assignments were invalid and the income taxable to the beneficiary. The trustees then brought an action in the state court; the state courts determined that the trust was not a spendthrift trust and that the assignments were valid. The Board of Tax Appeals accepted the decision of the state court and rejected the Commissioner's claim that petitioner was liable for tax on the income. The Court rejected the Commissioner's argument that the trust was a spendthrift trust, noting that:
21
'The question of the validity of the assignments is a question of local law. * * * By that law the character of the trust, the nature and extent of the interest of the beneficiary, and the power of the beneficiary to assign that interest in whole or in part, are to be determined. The decision of the state court upon these questions is final. * * * It matters not that the decision was by an intermediate appellate court. * * * In this instance, it is not necessary to go beyond the obvious point that the decision was in a suit between the trustees and the beneficiary and his assignees, and the decree which was entered in pursuance of the decision determined as between these parties the validity of the particular assignments. Nor is there any basis for a charge that the suit was collusive and the decree inoperative. * * * The trustees were entitled to seek the instructions of the court having supervision of the trust. That court entertained the suit and the appellate court, with the first decision of the Circuit Court of Appeals before it, reviewed the decisions of the Supreme Court of the State and reached a deliberate conclusion. To derogate from the authority of that conclusion and of the decree it commanded, so far as the question is one of state law, would be wholly unwarranted in the exercise of federal jurisdiction.
22
'In the face of this ruling of the state court it is not open to the Government to argue that the trust 'was, under the (state) law, a spendthrift trust.' The point of the argument is that, the trust being of that character, the state law barred the voluntary alienation by the beneficiary of his interest. The state court held precisely the contrary.' Id., 9—10, 57 S.Ct. 332.
23
I would adhere to Freuler v. Helvering, supra, and Blair v, Commissioner, supra. There was no indication in those cases that the state court decision would not be followed if it was not from the highest state court.
24
The idea that these state proceedings are not to be respected reflects the premise that such proceedings are brought solely to avoid federal taxes. But there are some instances in which an adversary proceeding is impossible (see, e.g., Estate of Darlington v. Commissioner, 3 Cir., 302 F.2d 693; Braverman & Gerson, The Conclusiveness of State Court Decrees in Federal Tax Litigation, 17 Tax L.Rev. 545, 570—572 (1962)), and many instances in which the parties desire a determination of their rights for other than tax reasons.
25
Not giving effect to a state court determination may be unfair to the taxpayer and is contrary to the congressional purpose of making federal tax consequences depend upon rights under state law. The result will be to tax the taxpayer or his estate for benefits which he does not have under state law. This aspect is emphasized in Blair v. Commissioner, supra, where the Government attempted to tax the taxpayer for income to which he had no right under state law. In Second National Bank v. United States, the grandchildren's trust will be assessed for the estate taxes, since the state court held that the proration statute applied; but the estate tax will be computed as if the proration statute did not apply—the marital deduction will be decreased and the tax increased. Or take the case where a state court determines tat X does not own a house. After X dies, a federal court determines that the state court was wrong and that X owned the house, and it must be included in his gross estate even though it does not pass to his heirs. I cannot believe that Congress intended such unjust results.
26
This is not to say that a federal court is bound by all state court decrees. A federal court might not be bound by a consent decree, for it does not purport to be a declaration of state law; it may be merely a judicial stamp placed upon the parties' contractual settlement. Nor need the federal court defer to a state court decree which has been obtained by fraud or collusion. But where, absent those considerations, a state court has reached a deliberate conclusion, where it has construed state law, the federal court should consider the decision to be an exposition of the controlling state law and give it effect as such.
27
Mr. Justice HARLAN, whom Mr. Justice FORTAS joins, dissenting.
28
The central issue presented by these two cases is whether and in what circumstances a judgment of a lower state court is entitled to conclusiveness in a subsequent federal proceeding, if the state judgment establishes property rights from which stem federal tax consequences. The issue is doubly important: it is a difficult and intensely practical problem, and it involves basic questions of the proper relationship in this context between the state and federal judicial systems. For reasons which follow, I am constrained to dissent from the resolution reached by the Court in both cases.
I.
29
It is useful first to summarize the legal and factual circumstances out of which these cases arose.
30
In No. 240, Second National Bank, the decedent's will and codicil provided that one-third of the residuary estate should be held in trust for the decedent's widow, who was given a general testamentary power of appointment over the corpus, and that the balance should be held in separate trusts for his nine grandchildren. The widow's trust was plainly within the terms of the marital deduction provided by § 2056(b)(5) of the Internal Revenue Code of 1954; the issue in this instance thus simply involves determination of the amount of this trust, and hence the amount of the marital deduction. Under Connecticut's tax-proration statute, Conn.Gen.Stat.Rev. § 12-401, a bequest exempt from estate tax, as here by reason of the federal marital deduction, is not reduced by any portion of such tax. Accordingly, if the proration statute is applicable to this decedent's will, the widow's trust would bear no part of the federal estate tax, and its entire burden would instead fall upon the grandchildren's trusts. The amount of the marital deduction would be correspondingly increased.
31
By its terms, the state proration statute is to be applied unless the 'testator otherwise directs.' Article I of the decedent's will provided, without apparent ambiguity, that the 'provisions of any statute requiring the apportionment or proration of (estate) taxes * * * shall be without effect in the settlement of my estate.' Nonetheless, the executor, petitioner here, contended to the Commissioner that the statute was applicable, and, upon receipt of the 30-day deficiency letter,1 applied to the Probate Court for the District of Hamden, Connecticut, for a determination that the estate taxes should be apportioned under the terms of the state statute. Notice of the application was given to the District Director of Internal Revenue, but, in accord with the Service's consistent position with reference to such state proceedings, Mim. 6134, Apr. 3, 1947, 1947 CCH Fed.Tax Rep. 6137, no appearance was entered in his behalf.
32
Apart from the executor's application, the probate court had the benefit only of argument from the guardian ad litem of the grandchildren; the guardian acknowledged that proration under the statute would place the burden of the estate tax entirely upon his wards' trusts, but nevertheless concluded that he had 'no objection' to the executor's application. The court, filing a written opinion, determined that the decedent's disclaimer of the statute was ambiguous, and therefore concluded that the statute was applicable. Petitioner thereupon paid the assessed deficiency, and brought this suit for a refund. The District Court and the Court of Appeals both concluded that, because of the character of Connecticut's probate court system,2 the state judgment was not conclusive of the applicability of the proration statute. 222 F.Supp. 446; 351 F.2d 489.
33
In No. 673, Estate of Bosch, the decedent created in 1930 a revocable inter vivos trust in favor of his wife, which also granted to her a general testamentary power of appointment over the corpus. In 1951, the decedent's wife, in order to take advantage of the Powers of Appointment Act of 1951, 65 Stat. 91, executed an instrument which purportedly converted the general power into a special power of appointment. Upon the decedent's death in 1957, his executor sought a marital deduction for the amount of the inter vivos trust; under § 2056 (b)(5), the trust would qualify for the deduction only if the decedent's wife held at his death a general power of appointment over the corpus.
34
The Commissioner, on the basis of the release signed in 1951 by the widow, disallowed the deduction, but the executor sought from the Tax Court a redetermination of the resulting deficiency. While the Tax Court proceeding was still pending, the executor petitioned in the New York Supreme Court for a determination under state law of the validity of the 1951 release. The Tax Court, with the Commissioner's assent, temporarily suspended its proceeding. In the state court, each of the three parties—the trustee, the widow, and the guardian ad litem of an infant who was a possible beneficiary—contended that the release was a nullity. The state court adopted their unanimous view. The Tax Court thereupon accepted the state trial court decision as an 'authoritative exposition' of the requirements of state law. 43 T.C. 120. A divided Court of Appeals affirmed. 363 F.2d 1009.
II.
35
The issue here, despite its importance in general, is essentially quite a narrow one. The questions of law upon which taxation turns in these cases are not among those for which federal definitions or standards have been provided; compare Burnet v. Harmel, 287 U.S. 103, 110, 53 S.Ct. 74, 77, 77 L.Ed. 199; Heiner v. Mellon, 304 U.S. 271, 279, 58 S.Ct. 926, 930, 82 L.Ed.2d 1337; Lyeth v. Hoey, 305 U.S. 188, 194, 59 S.Ct. 155, 158, 83 L.Ed. 119; it is, on the contrary, accepted that federal tax consequences have here been imposed by Congress on property rights as those rights have been defined and delimited by the pertinent state laws. The federal revenue interest thus consists entirely of the expectation that the absence or presence of the rights will be determined accurately in accordance with the prevailing state rules. The question here is, however, not how state law must in the context of federal taxation ordinarily be determined; it is instead the more narrow one of whether and under what conditions a lower state court adjudication of a taxpayer's property rights is conclusive when subsequenty the federal tax consequences of those rights are at issue in a federal court.
36
The problem may not, as the Court properly observes, be resolved by reference to the principles of res judicata or collateral estoppel, see generally Cromwell v. County of Sac, 94 U.S. 351, 352-353, 24 L.Ed. 195; the Revenue Service has not, and properly need not have, entered an appearance in either of the state court proceedings in question here. Nor do the pertinent provisions of the revenue laws, or their legislative history, provide an adequate guide to the solution of the problem; the only direct reference in that lengthy history relevant to these questions is imprecise and equivocal.3 The cases in this Court are scarcely more revealing; they are, as Judge Friendly remarked below, 'cryptic' and 'rather dated.' 363 F.2d 1009, 1015.
37
It is, of course, plain that the Rules of Decision Act, 28 U.S.C. § 1652, is applicable here, as it is, by its terms, to any situation in which a federal court must ascertain and apply the law of any of the several States. Nor may it be doubted that the judgments of state courts must be accepted as a part of the state law to which the Act gives force in federal courts, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188; it is not, for that purpose, material whether the jurisdiction of the federal court in a particular case is founded upon diversity of citizenship or involves a question arising under the laws of the United States.4 This need not mean, however, that every state judgment must be accepted by federal courts as conclusive of state law. The Court has, for example, never held, even in diversity cases, where the federal interest consists at most in affording a 'neutral' forum, that the judgments of state trial courts must in all cases be taken as conclusive statements of state law;5 apart from a series of cases decided at the 1940 Term,6 the Court has consistently acknowledged that the character both of the state proceeding and of the state court itself may be relevant in determining a judgment's conclusiveness as a statement of state law.7 This same result must surely follow a fortiori in cases in which the application of a federal statute is at issue.
38
Similarly, it is difficult to see why the formula now ordinarily employed to determine state law in diversity cases essentially, that, absent a recent judgment of the State's highest court, state cases are only data from which the law must be derived—is necessarily applicable without modification in all situations in which federal courts must ascertain state law. The relationship between the state and federal judicial systems is simply too delicate and important to be reduced to any single standard. See Hill, The Erie Doctrine in Bankruptcy, 66 Harv.L.Rev. 1013; Note, The Competence of Federal Courts to Formulate Rules of Decision, 77 Harv.L.Rev. 1084. Compare, e.g., Morgan v. Commissioner, 309 U.S. 78, 80-81, 60 S.Ct. 424-426, 84 L.Ed. 585; Cardozo, Federal Taxes and the Radiating Potencies of State Court Decisions, 51 Yale L.J. 783. The inadequacy of this formula is particularly patent here, where, unlike the cases in which it was derived, the federal court is confronted by precisely the legal and factual circumstances upon which the state court has already passed.
39
Accordingly, although the Rules of Decision Act and the erie doctrine plainly offer relevant guidance to the appropriate result here, they can scarcely be said to demand any single conclusion.
III.
40
Given the inconclusiveness of these sources, it is essential to approach these questions in terms of the various state and federal interests fundamentally at stake. It suffices for present purposes simply to indicate the pertinent factors. On one side are certain of the principles which ultimately are the wellsprings both of the Rules of Decision Act and of the Erie doctrine. First among those is the expectation that scrupulous adherence by federal courts to the provisions of state law, as reflected both in local statutes and in state court decisions, will promote an appropriate uniformity in the administration of law within each of the States. Uniformity will, in turn, assure proper regard in the federal courts for the areas of law left by the Constitution to state discretion and administration, and, in addition, will prevent the incongruity that stems from dissimilar treatment by state and federal courts of the same or similar factual situations. Finally, it must be acknowledged that state courts are unquestionably better positioned to measure the requirements of their own laws; even the lowest state court possesses the tangible advantage of a close familiarity with the meaning and purposes of its local rules of law.
41
On the other side are important obligations which spring from the practical exigencies of the administration of federal revenue statutes. It can scarcely be doubted that if conclusiveness for federal tax purposes were attributed to any lower state court degree, whether the product of genuinely adversary litigation or not, there would be many occasions on which taxpayers might readily obtain favorable, but entirely inaccurate, determinations of state law from unsuspecting state courts. One need not, to envision this hazard, assume either fraud by the parties or any lack of competence or disinterestedness among state judges; no more would be needed than a complex issue of law, a crowded calendar, and the presentation to a busy judge of but essentially a single viewpoint. The consequence of any such occurrence would be an explication of state law that would not necessarily be either a reasoned adjudication of the issues or a consistent application of the rules adopted by the State's appellate cort s.
42
It is difficult to suppose that adherence by federal courts to such judgments would contribute materially to the uniformity of the administration of state law, or that the taxpayer would be unfairly treated if he were obliged to act, for purposes of federal taxation, as if he were governed by a more accurate statement of the requirements of state law. Certainly it would contribute nothing to the uniformity or accuracy of the administration of the federal revenue statutes if federal courts were compelled to adhere in all cases to such judgments.8
IV.
43
The foregoing factors might, of course, be thought consistent with a variety of disparate resolutions of the questions these two cases present. If emphasis is placed principally upon the importance of uniformity in the application of law within each of the several States, and thereby upon the apparent unfairness to an individual taxpayer if an issue of state law were differently decided by state and federal courts, it might seem appropriate to accept, in all but the most exceptional of circumstances, the judgment of any state court that has addressed the question at issue. This is the viewpoint identified with the opinion of the Court of Appeals for the Third Circuit in Gallagher v. Smith, 223 F.2d 218; it is, in addition, apparently the rule adopted today by my Brother DOUGLAS. Conversely, if emphasis is placed principally upon the hazards to the federal fisc from dubious decisions of lower state courts, it might be thought necessary to require federal courts to examine for themselves, absent a judgment by the State's highest court, the content in each case of the pertinent state law. This, as I understand it, is the rule adopted by a majority of the Court today.
44
In my opinion, neither of these positions satisfactorily reconciles the relevant factors involved. The former would create excessive risks that federal taxation will be evaded through the acquisition of inadequately considered judgments from lower state courts, resulting from proceedings brought, in reality, not to resolve truly conflicting interests among the parties but rather as a predicate for gaining foreseeable tax advantages, and in which the point of view of the United States had never been presented or considered. The judgment resulting from such a proceeding might well differ only in form from a consent decree. The United States would be compelled either to accept as binding upon its interests such a judgment, or to participate in every state court proceeding brought at the taxpayer's pleasure, which might establish state property rights with federal tax consequences.
45
The second position, on the other hand, would require federal intervention into the administration of state law far more frequently than the federal interests here demand; absent a judgment of the State's highest court, federal courts must under this rule re-examine and, if they deem it appropriate, disregard the previous judgment of a state court on precisely the identical question of state law. The result might be widely destructive both of the proper relationship between state and federal law and of the uniformity of the administration of law within a State.
46
The interests of the federal treasury are essentially narrow here; they are entirely satisfied if a considered judgment is obtained from either a state or a federal court, after consideration of the pertinent materials, of the requirements of state law. For this purpose, the Commissioner need not have, and does not now ask, an opportunity to relitigate in federal courts every issue of state law that may involve federal tax consequences; the federal interest requires only that the Commissioner be permitted to obtain from the federal courts a considered adjudication of the relevant state law issus in cases in which, for whatever reason, the state courts have not already provided such an adjudication. In turn, it may properly be assumed that the state court has had an opportunity to make, and has made, such an adjudication if, in a proceeding untainted by fraud, it has had the benefit of reasoned argument from parties holding genuinely inconsistent interests.
47
I would therefore hold that in cases in which state-adjudicated property rights are contended to have federal tax consequences, federal courts must attribute conclusiveness to the judgment of a state court, of whatever level in the state procedural system, unless the litigation from which the judgment resulted does not bear the indicia of a genuinely adversary proceeding. I need not undertake to define with any particularity the weight I should give to the various possible factors involved in such an assessment; it suffices to illustrate the more important of the questions which I believe to be pertinent. The principal distinguishing characteristic of a state proceeding to which, in my view, conclusiveness should be attributed is less the number of parties represented before the state court than it is the actual adversity of their financial and other interests. It would certainly be pertinent if it appeared that all the parties had instituted the state proceeding solely for the purpose of defeating the federl revenue. The taking of an appeal would be significant, although scarcely determinative. The burden would be upon the taxpayer, in any case brought either for a redetermination of a deficiency or for a refund, to overturn the presumption, Welch v. Helvering, 290 U.S. 111, 115, 54 S.Ct. 8, 9, 78 L.Ed. 212, that the Commissioner had correctly assessed the necessary tax by establishing that the state court had had an opportunity to make, and had made, a reasoned resolution of the state law issues, after a proceeding in which the pertinent viewpoints had been presented. Proceedings in which one or more of the parties had been guilty of fraud in the presentation of the issues to the state court would, of course, ordinarily be entitled to little or no weight in the federal court's determination of state law.
48
I recognize, of course, that this approach lacks the precision of both the contrasting yardsticks suggested by the Court and by my Brother DOUGLAS. Yet I believe that it reflects more faithfully than either of those resolutions the demands of our federal system and of the competing interests involved.9
V.
49
I would apply these general principles to the present cases in the following manner. In No. 240, the Court of Appeals agreed with the District Court that 'it was unnecessary' to make a finding on whether the proceedings in the Connecticut probate court were collusive or 'nonadversary,' since the decrees of the probate court could "under no circumstances" be considered binding. 351 F.2d 489, 494. I would therefore vacate the judgment of the Court of Appeals and remand the cause for further proceedings in accordance with the views expressed herein
50
In No. 673, the Court of Appeals apparently concluded that, absent fraud or collusion, any state court proceeding which terminates in a judgment binding on the parties as to their rights under state law is also conclusive for purposes of federal taxation. 363 F.2d 1009, 1014. I would therefore reverse the judgment of the Court of Appeals, and again would remand the cause for further proceedings consistent with the views expressed in this opinion.
51
Mr. Justice FORTAS, dissenting.
52
While I join the dissenting opinion of my Brother HARLAN, I believe it appropriate to add these few comments. As my Brother HARLAN states, in a case in which federal tax consequences depend upon state property interests, a federal court should accept the final conclusion of a competent state court, assuming that such a conclusion is an adjudication of substance arrived at after adversary litigation and on the basis of the same careful consideration that state courts normally accord cases involving the determination of state property interests. The touchstone of whether the state proceeding was 'adversary' is not alone entirely satisfactory. I think that this concept has been helpfully embellished by Judge Raum of the United States Tax Court in the Bosch case, 43 T.C. 120, 123-124. Judge Raum suggests that among the factors to be considered in determining whether the decision of the state court is to be accepted as final for federal tax purposes are the following: whether the state court had jurisdiction, and whether its determination is fully binding on the parties; whether, in practice, the decisions of the state court have precedential value throughout the State; whether the Commissioner was aware of the state proceedings and had an opportunity to participate; whether the state court 'rendered a reasoned opinion and reached a 'deliberate conclusion', Blair v. Commissioner, 300 U.S. (5) at p. 10 (57 S.Ct. 330, 81 L.Ed. 465)'; whether the state decision has potentially offsetting tax consequences in respect of the state court litigant's federal taxes; and, in general, whether the state court decision 'authoritatively determined' future property rights, and thus, as Judge Raum stated, 'provided more than a label for past events * * *.'
1
Illustrative of the conflict among the circuits are: Gallagher v. Smith, 223 F.2d 218 (C.A.3d Cir., 1955); Faulkerson's Estate v. United States, 301 F.2d 231 (C.A.7th Cir.), cert. denied, 371 U.S. 887, 83 S.Ct. 182, 9 L.Ed.2d 121 (1962); Pierpont's Estate v. C.I.R., 336 F.2d 277 (C.A.4th Cir., 1964), cert. denied, 380 U.S. 908, 85 S.Ct. 890, 13 L.Ed.2d 795 (1965).
2
Section 2056(b)(5) of the Internal Revenue Code of 1954, 26 U.S.C. § 2056(b)(5), provides:
'(5) Life estate with power of appointment in surviving spouse.—In the case of an interest in property passing from the decedent, if his surviving spouse is entitled for life to all the income from the entire interest, * * * with power in the surviving spouse to appoint the entire interest, * * * (exercisable in favor of such surviving spouse, or of the estate of such surviving spouse, or in favor of either, whether or not in each case the power is exercisable in favor of others), and with no power in any other person to appoint any part of the interest, or such specific portion, to any person other than the surviving spouse—
'(A) the interest * * * thereof so passing shall, for purposes of subsection (a), be considered as passing to the surviving spouse, and
'(B) no part of the interest so passing shall, for purposes of paragraph (1) (A), be considered as passing to any person other than the surviving spouse.
'This paragraph shall apply only if such power in the surviving spouse to appoint the entire interest, or such specific portion thereof, whether exercisable by will or during life, is exercisable by such spouse alone and in all events.'
(b) No. 240, Second National Bank of New Haven, Executor v. United States.
3
It may be claimed that Blair v. Commissioner, 300 U.S. 5, 57 S.Ct. 330, 81 L.Ed. 465 (1937), dealt with the problem presently before us but that case involved the question of the effect of a property right determination by a state appellate court.
1
The deficiency was assessed at $1,333,194.35, plus interest. If the proration statute is applicable, as the executor has contended, the marital deduction attributable to the widow's trust would be approximately $3,600,000. If the statute is not applicable, as the Commissioner has held, the maritl deduction would be approximately $1,700,000.
2
The District Court concluded that Connecticut probate courts are not courts of records (but see Shelton v. Hadlock, 62 Conn. 143, 25 A. 483, and 1 Locke & Kohn, Connecticut Probate Practice 30 (1951), that its decrees are without legal effect in the State's higher courts, and that their decrees are also subject to collateral attack even in another probate district. 222 F.Supp., at 457; see also 351 F.2d, at 494.
3
A supplementary report of the Senate Finance Committee, concerned with the legislation which eventually became the Revenue Act of 1948, said simply that 'proper regard should be given to interpretations of the will rendered by a court in a bona fide adversary proceeding.' S.Rep.No. 1013, Pt. 2, 80th Cong., 2d Sess., 4. This language is doubtless broadly consistent with virtually any resolution of these issues, but it is difficult to see the pertinence of the sentence's last four words if, as the Court suggests, conclusiveness was intended to be given to the State's highest court, but to none other.
4
See, e.g., Maternally Yours, Inc. v. Your Maternity Shop, Inc., 2 Cir., 234 F.2d 538; Friendly, In Praise of Erie—and of the New Federal Common Law, 39 N.Y.U.L.Rev. 383, 408, n. 122; Note, The Competence of Federal Courts to Formulate Rules of Decision, 77 Harv.L.Rev. 1084, 1087.
5
See King v. Order of United Commercial Travelers, 333 U.S. 153, 68 S.Ct. 488, 92 L.Ed. 608. Compare Bernhardt v. Polygraphic Co., 350 U.S. 198, 204, 209-211, 76 S.Ct. 273, 276, 279, 280, 100 L.Ed. 199.
6
Fidelity Union Trust Co. v. Field, 311 U.S. 169, 61 S.Ct. 176, 85 L.Ed. 109; Six Companies of California v. Joint Highway District, 311 U.S. 180, 61 S.Ct. 186, 85 L.Ed. 114; West v. A.T. & T. Co., 311 U.S. 223, 61 S.Ct. 179, 85 L.Ed. 139; and Stoner v. New York Life Ins. Co., 311 U.S. 464, 61 S.Ct. 336, 85 L.Ed. 284. See also Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327. All these cases, with the possible exception of field, and apart from the rather different issue in Vandenbark, concerned intermediate state courts. They have been strongly and repeatedly criticized by commentators. Judge Friendly, for example, descib ed them as 'outrages,' supra, at 401. See also Corbin, The Laws of the Several States, 50 Yale L.J. 762, 766-768; Clark, State Law in the Federal Courts, 55 Yale L.J. 267, 290-292; and 2 Crosskey, Politics and the Constitution 922-927 (1953). It may also be wondered whether these cases have any vitality left after King and Bernhardt, supra.
7
Freuler v. Helvering, 291 U.S. 35, 54 S.Ct. 308, 78 L.Ed. 634; King v. Order of United Commercial Travelers, supra; Bernhardt v. Polygraphic Co., supra.
8
See, on the importance of uniformity in federal taxation, Hylton v. United States, 3 Dall. 171, 180, 1 L.Ed. 556; Cahn, Local Law in Federal Taxation, 52 Yale L.J. 799.
9
It may be doubted, however, whether this approach would actually produce serious practical disadvantages. It is essentially the standard which has been embodied in the Treasury Regulations since 1919, see now Treas.Reg. §§ 20.2053-1(b)(2), 20.2056(e)-2(d)(2), and which was urged before this Court in these cases by counsel for the United States. It is, moreover, similar to the standards employed in various opinions by a number of the courts of appeals. See, e.g., Saulsbury v. United States, 5 Cir., 199 F.2d 578; Brodrick v. Gore, 10 Cir., 224 F.2d 892; In re Sweet's Estate, 10 Cir., 234 F.2d 401; Old Kent Bank & Trust Co. v. United States, 6 Cir., 362 F.2d 444. See also Cahn, supra, at 818-819; Braverman & Gerson, The Conclusiveness of State Court Decrees in Federal Tax Litigation, 17 Tax.L.Rev. 545. If any practical difficulties actually attend this standard, they have apparently not, despite its wide use, yet appeared.
| 910
|
387 U.S. 485
87 S.Ct. 1754
18 L.Ed.2d 905
The DENVER AND RIO GRANDE WESTERN RAILROAD CO. et al., Petitioners,v.UNITED STATES et al.
No. 305.
Argued March 16, 1967.
Decided June 5, 1967.
[Syllabus from pages 485-486 intentionally omitted]
William H. Dempsey, Jr., Washington, D.C., for appellants.
Thomas D. Barr and Robert S. Rifkind, New York City, for appellees.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The question in this case is whether the Interstate Commerce Commission complied with its statutory responsibilities under § 20a of the Interstate Commerce Act1 when it approved without consideration of control or anticompetitive consequences the issuance to appellee Greyhound Corporation of 500,000 shares of the common stock of appellee Railway Express Agency, Inc. (REA).
2
REA provides railroad express service and is also a motor common carrier. The approximately 2,000,000 shares of REA common stock outstanding are entirely owned by railroads and no railroad stockholder may dispose of its shares without first offering them to the other railroad stockholders. REA also is authorized, however, to issue 500,000 additional shares of common stock without first offering them to its stockholders. Greyhound, which operates an express carrier service through its wholly owned subsidiary Greyhound Lines, Inc., a motor carrier of passengers and express subject to the Interstate Commerce Act, agreed to purchase these 500,000 shares. REA thereupon applied to the ICC for an order under § 20a approving the transaction. Minority railroad REA stockholders, motor bus competitors of Greyhound, motor carriers, and freight forwarders intervened in the proceeding to protest against approval of the transaction. They alleged, among other things, the necessity of a hearing on the questions whether Greyhound's acquisition of the stock was in the 'public interest' and for a 'lawful object' as those terms are used in § 20a. The ICC approved the acquisition without a hearing. A three-judge District Court for the District of Colorado sustained the ICC order. 255 F.Supp. 704. We noted probable jurisdiction. 385 U.S. 897, 87 S.Ct. 201, 17 L.Ed.2d 129. We reverse with direction to the District Court to enter a new judgment remanding the case to the ICC for further proceedings consistent with this opinion.
I.
3
REA was organized in 1929 and until 1961 operated on a nonprofit basis under a pooling agreement with the railroads. See Securities and Acquisition of Control of Railway Express Agency, Inc., 150 I.C.C. 423. Financial difficulties forced abandonment of the nonprofit operation and REA was converted to a profit and loss basis in order to effect more efficient and economic operation. See Express Contract, 1959, 308 I.C.C. 545, 549—550. In addition, REA was released from restrictions against use of carriers other than railroads. In 1963 REA's by-laws were amended to eliminate a limitation against stock ownership except by railroads; the disposition of shares by a railroad, however, was made subject to the right of first refusal of the other railroad stockholders. The issuance of 500,000 additional shares not subject to the right of first refusal was also authorized, but only upon the consent of two-thirds of the railroad stockholders.
4
Greyhound, principally a passenger carrier, became interested in expanding its growing express business. In January 1964 Greyhound offered to purchase, subject to ICC approval, at least 67% of REA's stock, of which Greyhound intended to offer 16% to major airlines. Greyhound also agreed to finance part of REA's capital requirements as part of a plan to coordinate the express services of both companies. This proposal was defeated by railroad stockholders.
5
REA and Greyhound persisted in their efforts to coordinate their operations. Greyhound proposed to acquire a 20% interest in REA through acquisition of REA's 500,000 authorized but unissued shares, stating that its 'interest in REA * * * stems primarily from our views as to the improvements * * * which could be realized through combination and correlation of certain of our facilities and services.' Greyhound offered to pay $16 per share if permitted to name one-fifth of the REA Board of Directors and if the REA Board would declare its intention 'to consider seriously and work toward a long-term agreement between REA and Greyhound to consolidate operating functions and facilities * * *,' and if, further, the REA Board would agree 'to consider seriously at a later time * * *'th e sale of REA stock to airlines and the general public. Finally, Greyhound offered, if permitted to acquire the 500,000 shares, to purchase enough additional shares at $25 each to give it 50% of the stock of REA, the offer to remain open for 60 days following Greyhound's acquisition of the 500,000 shares. It expressed willingness, however, to purchase the 500,000 shares and leave 'to the future the question of the acquisition of additional shares by Greyhound and giving the railroads an opportunity to reconcile their views on this question.'
6
REA countered with an offer to sell the 500,000 shares at $20 per share provided Greyhound would agree to offer within the 60-day period to purchase an additional 1,000,000 shares of the outstanding stock at the same price. The agreement was consummated on this basis subject to ICC approval.
7
REA's application to the ICC sought approval only of the issuance to Greyhound of the 500,000 shares. The application was supplemented with detailed data reviewing the negotiations, a statement of REA's financial condition and a statement of the purposes to which the $10,000,000 realized from the sale of the 500,000 shares would be applied. The burden of the protests of numerous intervenors was that the transaction was not in the 'public interest' and for a 'lawful object,' but rather was the first step toward establishing a virtual monopoly of express transportation, and would result in 'control' by Greyhound of REA, necessitating a hearing under § 5 of the Act.2 The Department of Justice also intervened. It urged the ICC to conduct a hearing to determine whether the transaction would violate § 7 of the Clayton Act,3 suggesting that, while a § 5 proceeding might be unnecessary, one might be instituted and consolidated with the recommended Clayton Act § 7 proceeding, since the anticompetitive issues involved would be virtually identical.
8
Division Three of the ICC approved the application without hearing, ruling that investigation into the 'control' and 'anticompetitive' issues 'would not be appropriate at this time * * *.' After the ICC denial of petitions for reconsideration this action to enjoin and set aside the ICC order was filed. The full Commission meanwhile reconsidered and affirmed the action of Division Three but postponed the effective date of the order pending the conclusion of judicial proceedings.
9
In the District Court the parties adhered basically to the positions maintained before the ICC, except that the Department of Justice abandoned its position urging a hearing on the § 7 question and declined either to support or to oppose the ICC order. In sustaining the order the District Court reasoned that, while the ICC might be required i § ome circumstances to consider 'control' and 'anticompetitive' issues before approving a stock issuance under § 20a, the ICC properly exercised discretion to defer consideration of such questions in this case until after it was determined whether and to what extent Greyhound would succeed in purchasing additional shares from railroad stockholders; only then would the 'chain of events started by the stock issuance * * * (be) ascertainable rather than conjectural.' 255 F.Supp. 704, 709.
10
In this Court the Government concedes, and the other appellees assume arguendo, that important issues of 'control' and 'anticompetitive' effects were involved in the application before the ICC. The Government has completely reversed its position from what it was before the ICC, arguing here that § 20a was designed to accomplish only the limited objective of protecting stockholders and the public from fiscal manipulation, and that, in any event, postponement of consideration of 'control' and 'anticompetitive' issues was justified in this case because the facts relevant to both issues might be wholly different at the end of the 60-day period, and because no prejudice to any party's interests could result from the delay.
II.
11
We do not agree that Congress limited ICC consideration under § 20a to an inquiry into fiscal manipulation.4 Even if Congress' primary concern was to prevent such manipulation, the broad terms 'public interest' and 'lawful object' negate the existence of a mandate to the ICC to close its eyes to facts indicating that the transaction may exceed limitations imposed by other relevant laws. Common sense and sound administrative policy point to the conclusion that such broad statutory standards require at least some degree of consideration of control and anticompetitive consequences when suggested by the circumstances surrounding a particular transaction. Both the ICC and this Court have read terms such as 'public interest' broadly, to require consideration of all important consequences including anticompetitive effects. Thus the ICC is required to weigh anticompetitive effects in approving applications for merger or control under § 5 of the Act, authorizing the ICC to grant such applications only if 'consistent with the public interest.' McLean Trucking Co. v. United States, 321 U.S. 67, 64 S.Ct. 370, 88 L.Ed. 544. And similarly broad responsibilities are encompassed within like broad directives addressed to other agencies. E.g., National Broadcasting Co. v. United States, 319 U.S. 190, 224, 63 S.Ct. 997, 1013, 87 L.Ed. 1344, FCC v. RCA Communications, Inc., 346 U.S. 86, 94, 73 S.Ct. 998, 1004, 97 L.Ed. 1470; People of State of California v. FPC, 369 U.S. 482, 484—485, 82 S.Ct. 901, 903, 8 L.Ed.2d 54.
12
It is true that the requirement that the ICC consider anticompetitive effects is more readily found under § 5, since § 5(11) enables the ICC to confer immunity from the antitrust laws for transactions approved under § 5(2).5 But the foundations of the ICC's obligation under § 5 are largely applicable to § 20a as well. Section 20a, like § 5, must after all be read in the context of overall ICC responsibilities. The responsibility under § 11 of the Clayton Act6 to enforce that Act's provisions is one of them. The responsibility to advance the National Transportation Policy, read into the 'public interest' standard of § 5, is another persistent and overriding duty, equallyap plicable to § 20a. In sum, as we said in McLean Trucking, supra, while transportation 'legislation constitutes the immediate frame of reference within which the Commission operates * * * and the policies expressed in it must be the basic determinants of its action. * * *, in executing those policies the Commission may be faced with overlapping and at times inconsistent policies embodied in other legislation enacted at different times and with different problems in view. When this is true, it cannot without more ignore the latter.' 321 U.S., at 80, 64 S.Ct. at 377.
13
In proceedings under § 20a(2), the ICC itself has not acted as though it lacks the power or responsibility to weigh anticompetitive consequences. In Columbia Terminals Co.—Issuance of Notes, 40 M.C.C. 288, 293, an application to issue notes under § 20a(2) was granted in part only on the condition that the notes be made the subject of competitive bidding. The ICC explicitly rejected the argument that § 10 of the Clayton Act, 15 U.S.C. § 20, requiring competitive bidding in certain situations, was superseded by § 20a. In Stock of New Jersey, I. & I.R. Co., 94 I.C.C. 727, 729, the Commission said, in considering an application to issue stock: '(I)t can not be said that in the performance of the broad duty imposed upon us by the statute we must confine our investigation and consideration to the effect of proposed issues upon the carrier immediately involved. In any application to us for authority to issue securities we are bound to measure the proposal by the test of public interest in whatever phase that interest may appear to be affected.'
14
This 'broad duty' was significantly adhered to in Chesapeake & O.R. Co. Purchase, 271 I.C.C. 5. There, the C & O sought modification of an earlier order so as to enable it to acquire and exercise 400,000 shares of New York Central, and two of C & O's directors sought authority under § 20a(12) to hold seats simultaneously on the Central Board. C & O and its directors alleged, in terms strikingly similar to the claims in this case, that Central needed funds and new management, and that the two companies were contemplating plans of mutual advantage and ultimately a merger under § 5(2). The ICC took a broad view of its power and responsibility. It found, as to the § 20a(12) issue, that an insufficient showing had been made that 'neither public nor private interests * * *' would be adversely affected by the proposed interlocking directorate, citing its own cases to the effect that authority would be granted under § 20a(12) only where no lessening of competition or independence occurred, 271 I.C.C., at 18, and pointing out that, even if the Central were strengthened, an interlocking directorate might injure other railroads in which the 'public has just as great an interest * * *,' 271 I.C.C., at 40. In treating the request that it approve the stock acquisition, the ICC referred in great detail to the facts that (1) the acquisition, when considered along with long-range plans, would result in C & O control of Cnt ral; (2) extensive competition between C & O and Central would be eliminated; and (3) cooperation between C & O and Central would pose a substantial threat to another railroad, 271 I.C.C., at 24—29. It refused to authorize the acquisition, concluding that it was in effect being asked 'to sanction a violation of the provisions of section 5(4) (requiring carriers to request authority under § 5(2) before acquiring control of another carrier) and also a violation of section 7 of the Clayton Antitrust Act.' 271 I.C.C., at 39, 43. It stated that, if the applicants were so confident that their long-run aims would be in the public interest, they should seek authority for control under § 5(2). These principles and arguments relied upon by the ICC in rejecting C & O's application are equally applicable here. The economic consequences do not differ because we are concerned here with the issuance of stock rather than an acquisition on the open market.
15
Appellees argue, with some ambivalence, that it would be anomalous to require the ICC to consider anticompetitive issues under § 20a(2). The ICC is authorized under § 5 to grant antitrust immunity for consolidations. No such power exists under § 20a,7 and the Government contends therefore that to require consideration of § 7 issues under § 20a would lead to the 'anomalous conclusion that a securities issue may have to be disallowed even though it might be the first step in an acquisition of control that the Commission could, on proper findings, authorize under section 5 notwithstanding antitrust considerations.' REA advances a variant of this argument pointing out that the Sixty-sixth Congress, which passed both § 5 and § 20a, would not have 'adopted the erratic policy of relaxing enforcement of the antitrust laws when competition was eliminated but requiring strick enforcement when lesser competitive harm might occur.'
16
First, it is by no means true that greater competitive harm necessarily results from consolidations than from stock issuances under § 20a. A particular consolidation may be in the public interest because it increases competition in some respects, while a stock issuance, even though not involving control, may have no similar redeeming feature. Second, any anomaly which may be created by the juxtaposition of §§ 5 and 20a stems, not from the fact that no immunity may be granted under § 20a, but from the ICC's special power under § 5. The obligation to enforce the Clayton Act is the rule, and § 5 is the exception. Finally, there are good reasons upon which Congress may have relied in providing that immunity might be conferred under § 5 but not under § 20a. Congress recognized in the Transportation Act of 1940, 54 Stat. 898, as it had in the Act of 1920, that railroad consolidations often result in benefits for the national transportation system as well as for the railroads involved. Consequently, it authorized the ICC to approve consolidations and to immunize them from the antitrust laws when they were found to be in the public interest. The special benefits sometimes realized from carrier consolidations are less likely to come about through the mere issuance of stock, unless the issuance results in control or merger; and when control or merger does result, he party acquiring control may invoke the Commission's power under § 5 to immunize the consolidation from the antitrust laws.
17
Appellees' reliance upon Alleghany Corp. v. Breswick & Co., 353 U.S. 151, 77 S.Ct. 763, 1 L.Ed.2d 726; 355 U.S. 415, 78 S.Ct. 421, 2 L.Ed.2d 374, is misplaced. That litigation stands at most for the proposition that the ICC has discretion in some circumstances to consider § 20a issues without coming to grips with the question whether control of one carrier by another may be unlawful. Alleghany had acquired control of the New York Central without ICC approval. It applied to the ICC rather than to the Securities and Exchange Commission for approval of an issue of preferred stock. The ICC took jurisdiction on the ground that, while Alleghany was an investment company normally under the jurisdiction of the SEC, its control of Central made it a carrier subject to ICC regulation. The District Court set aside the order approving the issuance on the ground that ICC jurisdiction to act under § 20a could not rest upon a control it had not approved. This Court reversed pointing out that it would be contrary to the policy of the statute to oust the ICC of regulatory jurisdiction because a noncarrier had failed to abide by the law. On remand the District Court considered the illegality of Alleghany's control as relevant to the merits of the issuance under § 20a, and we reversed again, stating simply that the only issue left open on remand was whether the stock issue 'as approved' was unlawful. 355 U.S. 415, 416, 78 S.Ct. 421, 422. However this litigation may be interpreted, it wholly fails to support the proposition that, because § 20a was designed primarily to protect against fiscal manipulation, the ICC is relieved of the necessity of considering other issues germane to the transaction.
18
We conclude, therefore, that the ICC is required, as a general rule, under its duty to determine that the proposed transaction is in the 'public interest' and for a 'lawful object,' to consider the control and anticompetitive consequences before approving stock issuances under § 20a(2). This does not mean the ICC must grant a hearing in every case, or that it may never defer consideration of issues which arise when special circumstances are present. But it does mean that, when the ICC exercises its discretion to approve issuances without first considering important control and competition issues, the reviewing court must closely scrutinize its action in light of the ICC's statutory obligations to protect the public interest and to enforce the antitrust laws. Whether or not an abuse of discretion is present must ultimately depend upon the transaction approved, its possible consequences, and and justifications for the deferral. We turn now to this question, first with respect to the deferral of the control issue, and second with respect to the deferral of the anticompetitive issues.
III.
19
REA's proposed issuance of a 20% stock interest to Greyhound undoubtedly raised a serious question whether control of its operations might pass to Greyhound. Control under § 5 must be judged realistically, and is a matter of degree. See Rochester Tel. Corp. v. United States, 307 U.S. 125, 59 S.Ct. 754, 83 L.Ed. 1147. Even the 20% acquisition standing alone might raise an issue of control necessitating greater consideration than given it by the ICC, but it is clear from REA's own evidence that the purpose of its negotiations with Greyhound was to bring the two companies into a joint alignment. The 20% stock issuance was treated by both as the first step of a more ambitious project, and as evidence of the seriousness of each other's intentions to that end.
20
What the ICC has done must, however, be placed in perspective. It has not denied that a substantial issue of control is present, and it has not refused to consider the issue. It has held only that consideration should be deferred for the 60-day period during which Greyhound has are ed to extend to REA stockholders an offer to purchase up to 1,000,000 shares. We have stressed the unsatisfactory consequences which often occur when agencies defer action and leave parties uncertain as to their rights and obligations. United States v. Chicago, M. St. P. & P.R. Co., 294 U.S. 499, 510, 55 S.Ct. 462, 467, 79 L.Ed. 1023. We might also observe that the ICC apparently could have avoided the deferral by requiring REA and Greyhound to reform their contract so that all the facts relevant to the control issue could be ascertained before approval was given under § 20a(2).8 Nevertheless, we cannot say that the ICC exceeded its discretion when it deferred consideration of the control issue; radical changes in the relevant facts may take place during the 60-day period, and it is highly unlikely that any harm can flow to appellants or to the public interest from a deferral limited to that issue.
21
Resolution of the 'public interest' issue under § 5, requiring consideration of anticompetitive and other consequences, is required when the threshold fact of control or merger is established. But in this case, even assuming that the 20% purchase may amount to 'control' under the existing stock distribution, events may occur during the 60-day period which might negate this possibility. Some railroads have indicated their intention to sell their REA holdings, but whether Greyhound or the dissident railroads wind up in a controlling position may depend on the extent to which the latter exercise their right of first refusal. The dissident railroads have made clear their intention to prevent Greyhound from acquiring any additional shares, but even if they obtain one-third of REA's stock they will be able to determine the composition of REA's Board of Directors. In either case, the added power in the hands of the dissident roads may, depending on the circumstances, lead the ICC to find that Greyhound had not acquired control.9 Thus the control question can more realistically be resolved with finality after the 60-day period.
22
Moreover, the ICC reasonably concluded that allowing Greyhound tentatively to acquire the 20% stock interest would not prejudice appellants as to the control issue in light of the dissident railroads' position that Greyhound would not acquire 'one additional share under the offer to purchase up to one million shares * * *,' and because Greyhound would be unable under REA's bylaws to control the board, since its five directors would be faced by 18 railroad directors, any 13 of whom would have the power to prevent any action proposed by Greyhound.
IV.
23
The action of the Commission in deferring consideration of the anticompetitive issues stands on a different footing. The Commission's responsibility under § 5 and under the Clayton Act differs markedly, and the reasons which support an exercise of discretion as to the control issue are wholly inapplicable to the anticompetitive questions. There is, in short, no reasonable justification for deferring the Clayton Act questions.
24
The Commission is, of course, required to consider anticompetitive issues under the public interest standard of § 5, just as it must under the public interest standard of § 20a. But the duty under § 5, as we point out above, arises only after the threshold fact of control is established. No such preliminary finding need be made to trigger the ICC's duty under the Clyt on Act. A company need not acquire control of another company in order to violate the Clayton Act. See e.g., United States v. E. I. Du Pont De Nemours & Co., 353 U.S. 586, 77 S.Ct. 872, 1 L.Ed.2d 1057; American Crystal Sugar Co. v. Cuban-American Sugar Co., 152 F.Supp. 387 (D.C.S.D.N.Y.1957), aff'd, 259 F.2d 524 (C.A.2d Cir. 1958). Section 7 proscribes acquisition of 'any part' of a company's stock where the effect 'may be substantially to lessen competition, or to tend to create a monopoly.' Moreover, the purpose of § 5 is significantly different from that of the Clayton Act. Section 5 is designed to enable carriers to seek and obtain approval of consolidations with other carriers, with immunity from the antitrust laws. When a carrier effects a consolidation without ICC authority, the Commission can of course act under § 5(4). But, as the Commission has often held, the carrier must initiate consolidations under § 5, and it is reasonable to expect that carriers will seek the benefits of that provision. In contrast, the Clayton Act is prohibitive, and imposes a positive obligation upon the ICC to act. The Commission is directed, whenever it has reason to believe any carrier within its jurisdiction is violating § 7, to 'issue and serve upon such person and the Attorney General a complaint stating its charges in that respect, and containing a notice of a hearing * * *.' 15 U.S.C. § 21(b). Section 16, 15 U.S.C. § 26, excepts from the power of private persons to bring § 7 suits for injunctive relief all cases involving matters subject to ICC jurisdiction. By thus limiting the authority of private persons to institute court proceedings to enjoin § 7 violations, this provision underscores the ICC's responsibility to act when such violations are brought to its attention.
25
One of the principal justifications advanced for the ICC's deferral of the control issue is that the facts relevant to that issue may change so significantly during the 60-day period that the control question could be settled either way. No such possibility exists with respect to at least some of the anticompetitive issues presented by REA's application. We need not accept the argument of appellants, based upon the distinction between 'express' and other forms of transport, see, e.g., Railway Express Agency, Inc., Extension—Nashua, N.H., 91 M.C.C. 311, 322, sustained sub nom. Auclair Transportation, Inc. v. United States, 221 F.Supp. 328 (D.Mass.), aff'd, 376 U.S. 514, 84 S.Ct. 966, 11 L.Ed.2d 968, that the 20% stock acquisition would itself violate § 7 because REA controls 88% and Greyhound 7% of the 'express' market. For if appellees REA and Greyhound are correct that, because of the increasing cross-competition among groups carrying transport, it is impossible to categorize REA as a carrier of 'express,' then the claims of appellant truck lines, freight forwarders and trucking associations take on added significance. It is precisely the increasing diversification of REA's transport activity, together with Greyhound's considerable capacity and the economies and efficiencies the two companies intend to effectuate jointly, that concerns these appellants.
26
It is clear that REA and Greyhound contemplate major changes in their operation which could have a significant impact upon competition for express and other types of transport which they seek to carry. The 'Memorandum of Understanding' into which the companies entered about three weeks before REA agreed to Greyhound's 20% stock acquisition contemplates efficiencies and savings through consolidation of facilities for terminal service, of garages, and of communications, advertising and sales forces. These changes might therefore realize large savings for both REA and Greyhound, and in this way and other ways significantly strengthen their competitive position. And the Memorandum expresses a determination to engage in aggressive action to capture larger shares of express and transport business, especially by utilizing Greyhound's bus opra tions as a complement to REA's air and rail service. 'The consolidation of effort by the two companies,' the Memorandum states, 'would create a new market with revenue opportunity arising from a complete package express service to the public.' The 'new ability' of the air express service to reach off-airline points would add significantly to REA and Greyhound revenues, and the new market would have an estimated growth potential of 10% per year. Similarly, rail-bus service was expected to generate millions in 'new business,' and to 'create a new capability for the two carriers to compete in the LTL (less-than-load) market. The only foreseeable limitation to the growth of this service would be the physical space limitations of Greyhound's fleet.'
27
There is nothing in the record to rebut the allegations of many of the appellants that cooperation between Greyhound and REA of the sort contemplated by the Memorandum aided by the 20% stock acquisition will result in serious harm to appellants individually and to the public interest which they serve. The freight forwarders fear a great reduction in their business, as do the bus companies. Some of the bus companies, which engage in commuter transport, claim that Greyhound-REA cooperation would deprive them of their express business, and that, since that business makes economically feasible their commuter operations, would compel the termination of services essential to the public interest.
28
It cannot be said with assurance that deferral of consideration of the anticompetitive issues will in no way prejudice appellants or the public interest. The fact that the railroads presently control the REA Board of Directors is hardly relevant to that question. It is not the possibility of control that may prejudice appellants and the public interest, but simply the fact that with Greyhound holding 20% of REA's stock there is likely to be immediate and continuing cooperation between the companies, cooperation which appellants claim will be to their detriment and which the Government concedes may be against the public interest. If appellants are correct, and if such an alliance would in fact be against the public interest, then § 7 of the Clayton Act requires that it be stopped in its incipiency. Cf. FTC v. Dean Foods Co., 384 U.S. 597, 606, n. 5, 86 S.Ct. 1738, 1743, 16 L.Ed.2d 802.
29
We are told that REA is in need of funds, and that ICC approval of the 20% stock acquisition assures that REA will obtain capital and gain a measure of independence from the railroads. There is certainly support for the position that REA needs to free 'itself from the control and domination previously exercised by its railroad shareholders over its operations.' 80 ICC Ann.Rep., p. 22 (1966). The strong ties between REA and the railroads led to the operation of REA in the railroads' own interests, without regard to their coincidence with REA's best interests or the public interest. Prior to a 1959 agreement, generated in large part by REA losses, see Express Contract, 1959, supra, 308 I.C.C., at 546, REA was required to distribute traffic among carriers on the basis of existing traffic patterns, and the consent of rail carriers operating between given points was required before REA could utilize carriers other than railroads between those points. Changes in these limitations have enabled REA to finance some improvements and steadily to increase its corporate surplus. Study of REA Express, Staff Liaison Group V—C, CAB, FMC & ICC 24—26 (1965). But it does not follow that REA will be any better off in the long run, or that the public interest will be advanced, if its ownership shifts in part or entirely to Greyhound.
30
While the history of REA does not in itself provide a blueprint for its future, it does 'afford a basis for considering the lawfulness of REA's status and activities, and the economic desirability of its apparent direction of growth.' Study, op. cit. supra, at 3. That history indicates that there may be some relationshi b etween REA's depressed state and its close ties with railroads. Before acting on this premise, however, the ICC must at least consider the question whether a given course of action will in fact alleviate the problem. If railroad ownership operated in the past to deprive REA of an opportunity to prosper and serve the public interest, it is not inconceivable that partial ownership by Greyhound will have the same result. Greyhound, presumably, is no less likely to act in its own interest. If the railroads operated REA, as appellees contend, to minimize competition for transport generally between REA and the railroads, and for express between the railroads themselves and between railroads and other modes of transport, how will partial or complete ownership by Greyhound change things? Even if only partial ownership results, may Greyhound and the railroad owners operate REA so as to minimize competition between REA and themselves for transport generally? What effect, for example, would partial ownership by Greyhound have upon the recent efforts of REA to add to its express operations the hauling of larger and more varied volumes of freight, efforts which bring it into competition with Greyhound and other bus lines as well as with truck lines and freight forwarders? Moreover, what assurance is there that REA will not tend to route shipments via Greyhound in preference to more efficient or economical carriers or modes, just as the railroads bound REA to use their lines as opposed to other modes, absent their approval? We assume that REA needs funds and would be better off more independent from the railroads, but before the ICC can use these reasons to justify a diversification of ownership it must at least consider whether the specific action approved may operate to the detriment of REA or the public interest.
31
There is, finally, little merit to the Government's argument that deferral of the anticompetitive issues is strongly supported by considerations of administrative convenience. The only circumstance in which the anticompetitive issues may be eliminated from the case is if Greyhound, thwarted at the end of the 60 days in its plans to control REA, were to dispose of its 20% interest. But the ICC can hardly justify deferral of consideration of the consequences of a transaction on the possibility that the problems its approval creates may shortly vanish by a reversal of the transaction itself. Of course, if, as appellees claim, it is most likely that Greyhound will acquire no further stock, then consideration of those consequences now would not be wasted effort. And the argument of wasted effort is still less persuasive if appellees are proved wrong and Greyhound does acquire more stock. For the most significant question which the ICC must face is whether it is in the public interest that REA continue to be owned by other transport companies, and specifically by Greyhound. Once this question is resolved as to the 20% stock acquisition, and the consequences of that acquisition are fully weighed, the ICC's task in any subsequent proceeding if Greyhound enlarges its stock interest will by far more manageable.
32
We therefore conclude that, although the possibility that Greyhound may not increase its holdings within the 60-day period may justify deferral of resolution of the control issue, it does not justify delay in consideration of the anti-competitive effects of the 20% transaction. The Government was correct in its position before the ICC that this record placed 'before the Commission serious questions under section 7 of the Clayton Act,' requiring a hearing.
33
The judgment of the District Court is reversed with direction to enter a new judgment remanding the case to the Interstate Commerce Commission for further proceedings consistent with this opinion. It is so ordered.
34
Judgment reversed with direction.
35
Mr. Justice WHITE, concurring in part and dissenting in part.
36
I agree with most of the Court's opinion, with its holding that competitive ac tors must be considered in a § 20a proceeding and with its ruling that a hearing should have been held by the Commission in this case before approving the issuance of the securities by Railway Express Agency, Inc., to Greyhound Corporation. But I am doubtful about those parts of the Court's opinion which indicate that although the public interest requires the consideration of competitive factors in connection with the issuance of stock under § 20a, the public interest also demands that if a lessening of competition is found or threatened within the meaning of § 7 of the Clayton Act, the issuance must be disapproved. Under § 5 of the Interstate Commerce Act, competitive factors must also be considered in determining the public interest, but there a balanced view of the public interest permits the approval of a merger or consolidation despite any actual or probable competitive impact. Mergers which would violate § 7 are thus permissible under § 5 if found in the public interest but only those acquisitions of stock which are not suspect under § 7 of the Clayton Act are permissible under § 20a.
37
In the last analysis the Court rests this rather odd distinction on the Act itself—that is, Congress is said to have intended this very result because it provided in § 5(11) that the approval of a transaction under § 5 relieves the parties from antitrust liability and did not so provide in connection with § 20a transactions. I do not think, however, that this ends the matter, and I find unconvincing the speculative reasons the Court gives for suggesting that Congress intended any such result.
38
Much more persuasive to me is the approach of Pan American World Airways, Inc. v. United States, 371 U.S. 296, 83 S.Ct. 476, 9 L.Ed.2d 325. That case involved the Civil Aeronautics Act of 1938, 52 Stat. 973, re-enacted as the Federal Aviation Act of 1958, 72 Stat. 731, 49 U.S.C. § 1301 et seq., which provided antitrust immunity for transactions approved by the Civil Aeronautics Board under §§ 408, 409, and 412. The course of conduct attacked by the United States under § 1 of the Sherman Act in Pan American was not, however, within any of these sections. The Court, nevertheless, held that the conduct was clearly of the kind specifically committed to regulation by the Board under other sections of the Act and was unassailable in an independent civil action brought by the United States under § 1 of the Sherman Act.
39
In the case before us, § 20a(2) provides that it shall be unlawful for any carrier to issue securities unless approved by the Commission after finding that the issuance:
40
'(a) is for some lawful object within its corporate purposes, and compatible with the public interest, which is necessary or appropriate for or consistent with the proper performance by the carrier of service to the public as a common carrier, and which will not impair its ability to perform that service, and (b) is reasonably necessary and appropriate for such purpose.'
41
The Commission may grant an application under § 20a in whole or in part with such modifications and on such terms and conditions as the Commission may deem appropriate, and it may from time to time make such supplemental orders with respect to the transaction as it may deem necessary. § 20a(3). Moreover, it is expressly provided that '(t)he jurisdiction conferred upon the commission by this section shall be exclusive and plenary, and a carrier may issue securities and assume obligations or liabilities in accordance with the provisions of this section without securing approval other than as specified herein.' § 20a(7).
42
Having these powers conferred upon it in the name of the public interest, the Commission may, in my view, approve the issuance of stock by a carrier if it deems the public interest requires it even though there may be a probable lessening of competition which otherwise would violate § 7 of the Clayton Act. This seems to be precisely what Congress intended by expressly providing in § 7 of the Clayton At itself that 'Nothing contained in this section shall apply to transactions duly consummated pursuant to authority given by the * * * Interstate Commerce Commission * * * under any statutory provision vesting such power in such Commission * * *.' 15 U.S.C. § 18.
43
It makes very little sense to me to hold that a stock acquisition involving control may be approved if the public interest requires it, despite any actual anticompetitive impact, and yet to forbid the approval of an acquisition which falls short of control but which 'may' injure competition within the meaning of the Clayton Act.
44
Thus while I agree that a hearing should be required before the Commission approves the issuance of the securities in this case, I would make it clear that competitive considerations are only some of the factors to be weighed in reaching a decision concerning the public interest, much as the Court has viewed the proceedings under § 5. McLean Trucking Co. v. United States, 321 U.S. 67, 64 S.Ct. 370. At the very least I would not now decide that the Commission is powerless to approve the issuance of securities under § 20a if it determines that the impact on competition would otherwise be barred by the Clayton Act.
45
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, dissenting.
46
This case involves a proposed stock issue by appellee Railway Express Agency, Inc. (REA,) of 500,000 shares of previously authorized but unissued shares of its common stock. Under § 20a(2) of the Interstate Commerce Act, 49 U.S.C. § 20a(2), this type of stock transaction must be authorized by the Interstate Commerce Commission, which must determine whether the issue is 'for some lawful object within * * * (the applicant's) corporate purposes, and compatible with the public interest * * *.' Under the proposed transactions REA contracted to sell this block of shares for $10,000,000 to the Greyhound Corporation, which would then offer to purchase within a 60-day period an additional 1,000,000 shares from existing stockholders, all of whom are railroads and all of whom hold rights of first refusal as to the sale of existing REA shares. Some of these railroad-stockholders have been opposed to Greyhound's entry into REA and have expressed their intention to exercise their preemptive rights. It is undisputed that if Greyhound nevertheless succeeds in purchasing these additional shares it would be in a position to exercise a substantial degree of control over REA, cf. Rochester Tel. Corp. v. United States, 307 U.S. 125, 145, 59 S.Ct. 754, 764, and that such control would require the approval of the ICC under § 5(2) of the Interstate Commerce Act, 49 U.S.C. § 5(2). It was also alleged by the United States as an intervenor before the ICC that the possible exercise of control by Greyhound over REA and an anticipated co-ordination of certain services by the two carriers1 raised serious antitrust questions under § 7 of the Clayton Act, 15 U.S.C. § 18, which the ICC is bound to enforce as to regulated carriers, Clayton Act § 11, 15 U.S.C. § 21.
47
The Interstate Commerce Commission did not deal with the substance of these 'control' and 'antitrust' issues. It found that REA 'urgently needs the proceeds of $10,000,000 * * *,'2 and that it was not necessary, given the uncertainty as to the future relationship of Greyhound and REA, to deal with the control issue at that time. The Commission noted specifically that 'if in the future the acquisition of control or power to control o r other matter or transaction to which section 5 of the act applies, becomes imminent or apparent, the opportunity will be available for all interested persons to interpose their opposition * * *.'
48
On review, a three-judge District Court for the District of Colorado sustained the Commission's order, 255 F.Supp. 704. It read the ICC's decision, as does this Court, as saying only 'that in the circumstances presented the public interest requires the issuance of the stock and that determination of the competitive effects will be appropriate for consideration after the chain of events started by the stock issuance is ascertainable rather than conjectural.' Id., at 709. The District Court then held that '(i)n the circumstances it is not our prerogative to interfere with what we deem to be a reasonable exercise by the Commission of its discretionary powers.' Id., at 710.
49
I would affirm this judgment of the District Court, and therefore must dissent from today's decision. The Court holds that 'the ICC is required, as a general rule, under its duty to determine that the proposed transaction is in the 'public interest' and for a 'lawful object,' to consider the control and anticompetitive consequences before approving stock issuances under § 20a(2).' Ante, p. 498. The Court notes, however, that '(t)his does not mean the ICC must grant a hearing in every case, or that it may never defer consideration of issues which arise when special circumstances are present,' ibid., but concludes that while it was not an abuse of discretion to defer consideration of the 'control' question raised by the intervenors, it was improper to refuse to deal with the 'anticompetitive' issues at this stage. I believe that this decision misapplies the relevant statutes and seriously impedes sound administrative practice.
I.
50
Section 20a(2) of the Interstate Commerce Act is concerned with new stock issues. Congress' dominant concern was 'to maintain a sound structure for the * * * support of railroad credit,' 1 Sharfman, The Interstate Commerce Commission 190 (1931),3 and nothing in the legislative background of the section indicates that the words 'for some lawful object within its corporate purposes, and compatible with the public interest' were intended to encompass issues of antitrust law. Of course the phrase 'the public interest' is broad, and in the context of other legislation comparable terms have been held to embrace antitrust matters. E.g., Federal Communications Act, § 307, 48 Stat. 1083, 47 U.S.C. § 307, as construed in FCC v. RCA Communications, Inc., 346 U.S. 86, 73 S.Ct. 998, 97 L.Ed. 1470. But the mere inclusion of such language in this instance is not the end of our inquiry, for § 20a must be read in its entirety and interpreted in conjunction with other sections of the Act.
51
In contrast to § 20a, which by its detailed and explicit terms deals only with the problem of fiscal responsibility,4 § 5 of the Act, enacted at the same time,5 deals specifically with problems of 'control.' Indeed, the standards laid out in § 5 are directly relevant to the various factual issues hypothesized by the Court in Part IV of its opinion. Section 5 does not deal solely with transfers of shares, but with any lease or contract between two carriers for the operation of their properties, §§ 5(2)(a)(i), 5(4); see Gilbertville Trucking Co. v. United States, 371 U.S. 115, 125, 83 S.Ct. 217, 223, 9 L.Ed.2d 177. It would thus appear that any type of agreement between Greyhound and REA for the integration of their operations would—with or without the sale of shares—fall within the purview of § 5.
52
Section 5 not only deals explicitly with problems of control, but it establishes the public interest criteria which the ICC is bound to use in making that type of inquiry. For example, the Commission must consider '(1) The effect of the proposed transaction upon adequate transportation service to the public; * * * (3) the total fixed charges resulting from the proposed transaction; and (4) the interest of the carrier employees affected.' § 5(2) (c). This Court has recognized that standards of market control in the transportation industry are different from those governing other business transactions: the ICC must take account of antitrust policy in judging the control questions under § 5, McLean Trucking Co. v. United States, 321 U.S. 67, 64 S.Ct. 370, but this interest is simply one of the relevant criteria, and if on balance the Commission finds a proposed undertaking to be in the public interest the statute authorizes a grant of antitrust immunity to the transaction. § 5(11); Seaboard Air Line R. Co. v. United States, 382 U.S. 154, 86 S.Ct. 277, 15 L.Ed.2d 223; Minneapolis & St. L.R. Co. v. United States, 361 U.S. 173, 80 S.Ct. 229, 4 L.Ed.2d 223; McLean Trucking Co. v. United States, supra. Section 5 thus covers fully the problems of control; likewise, the antitrust issues are deat with specifically in § 11 of the Clayton Act, which authorizes the ICC to enforce § 7 of that Act, forbidding the acquisition of stock the effect of which 'may be substantially to lessen competition, or to tend to create a monopoly.' Hence these sections, and not § 20a, are the substantive provisions governing the Commission's jurisdiction in respect to the anticompetitive aspects of this case.
53
For procedural reasons, too, § 20a seems inappropriate as a vehicle to replace or augment § 5 of the Interstate Commerce Act and §§ 7 and 11 of the Clayton Act. When a carrier applies for authorization to issue stock, the Commission must give notice to the various States in which the carrier operates so that relevant state regulatory agencies, which also supervise the finances and corporate structure of these companies, may raise objections to the proposed transaction. The Commission need not, however, hold a hearing before approving the transaction. § 20a (6). In contrast, when the ICC deals with problems of control under § 5, it is bound not only to notify the various state authorities but also to 'afford reasonable opportunity for interested parties to be heard.' § 5(2)(b). And § 11 of the Clayton Act requires the Commission to notify the Attorney General if it believes that any carrier is violating § 7, and the Attorney General has the statutory right to intervene in the mandatory hearing on the question.
54
Given the complexities of control and antitrust problems in the transportation field, and given the specific and detailed provisions of that statute in § 5, and in § 11 of the Clayton Act, devoted particularly to them, it seems to me quite evident that the sounder view of the statutory scheme is to regard § 20a as being limited to matters to corporate financing and § 5 and § 7 as being the source of the Commission's authority and duty to deal with these other matters.
55
None of the Commission cases cited by the Court in support of its position that § 20a was envisioned as also encompassing control and antitrust considerations is apposite. Columbia Terminals Co.—Issuance of Notes, 40 M.C.C. 288, dealt, as the Court notes, with § 10 of the Clayton Act, 15 U.S.C. § 20, which specifically requires common carriers in certain situations to sell securities 'by competitive bidding under regulations to be prescribed by rule or otherwise by the Interstate Commerce Commission.' The ICC merely held that this statute had not been repealed by § 20a. The general language cited by the Court from Stock of New Jersey, I. & I.R. Co., 94 I.C.C. 727, was written in a case in which the issue was whether the applicant railroad could pay an indebtedness to its sole stockholder, another railroad, through a distribution of stock as a dividend. The ICC held this method of financing acceptable; antitrust considerations were in no way involved.
56
The third ICC decision cited by the Court, Chesapeake & O.R. Co. Purchase, 271 I.C.C. 5, would seem, if anything, inconsistent with its view of § 20a. There the Commission was requested to approve an interlocking directorate, which is forbidden unless authorized by the Commission pursuant to § 20a(12) of the Interstate Commerce Act, 49 U.S.C. § 20a(12). In making its decision the Commission did not incorporate § 5 control standards into § 12a(12). Quite the contrary, it noted that '(t)he policy of the Congress as to consolidations, mergers, and other forms of corporate unification and association is now to be found in the provisions of section 5,' id., at 12; that no application under § 5(2) had been filed; and that '(i)t follows that the evidence pertaining to control of the New York Central or ultimate unification of the two carriers is irrelevant to the principal issues before us, and may not be considered in disposing of those issues.' Ibid. The Commission then determined, under its established standards for judging the acceptability of an interlocking directorate, id., at 18, that such an authorization would be improper, but ose rved that '(i)f the applicants are firmly of the opinion that the proposed association will result in the benefits to the carriers and to the public which they contend we should find on the showing that they have made in this proceeding, there is no reason why they should not file an application for some form of association under section 5(2) of the act.' Id., at 41—42.
57
The lack of authority for the Court's view of § 20a is not limited to administrative decisions. In the complex Alleghany Corp. litigation, summarized by the Court, ante, pp. 497-498, this Court sustained the ICC's determination that it could act upon a § 20a application without involving itself in difficult issues of intercorporate control as the District Court had ordered. The protracted and tangled character of that litigation, until resolved in the interests of simplicity by this Court's affirmance of the ICC's approach, should be a warning of the unfortunate consequences that may follow judicial requirements complicating and proliferating administrative hearings in unfamiliar fields; this is especially so where there are, as here, numerous parties some of whom have a strong interest in achieving delay.
II.
58
Although not accepting the reading of the Act which I have urged, the Court nonetheless appears to recognize that the issue of 'control' is a separate one from that of financial regularity, and one that can appropriately be dealt with in a separate and subsequent proceeding. Since the Court also acknowledges, as it must, that at this later hearing REA and Greyhound may request a § 5 (11) exemption, and thus bring into play all the standards of § 5, I find the Court's insistence that this issue falls within the purview of § 20a rather than § 5 essentially an academic one. The ICC will still be able to conduct its hearings just as it wished to do here, except that its subsequent '§ 5 proceeding' will henceforth be labeled a '§ 20a and § 5 proceeding.'
59
Given the Court's recognition that the ICC has discretion to postpone the 'control' determination, I find it difficult to accept its argument that 'antitrust' factors may not similarly be postponed.
60
It should be recalled that the only matter raised in this application is REA's desire to issue 500,000 shares of its stock to 'a non-railroad purchaser,' which concedely would bring to the issuer capital funds required for investment purposes. Under the proposed transaction, after Greyhound purchases these shares it will extend an offer to purchase within 60 days an additional 1,000,000 shares, as to which other shareholders hold rights of first refusal. All parties are in agreement that control and antitrust problems will be raised if Greyhound is ultimately successful in effecting these additional purchases. The only question is whether the Commission can leave these questions for a later determination. Because of the uncertainty as to the outcome of the further stock purchase offer, the Court agrees that postponement of the control issue was proper. But this uncertainty is equally crucial to to the Clayton Act issues. The likelihood of a Clayton Act violation will of course be increased if Greyhound obtains these additional shares and is in a position to control, and to consolidate operations with, REA. On the other hand, if the shares are bought by some of the appellants whose interests appear to be adverse to Greyhound, the possibility of substantial harm to competition will be minimal. The core of the Clayton Act question, then, is inexorably tied to the control question, and the Court does not deny that these problems overlap. In these circumstances I find it impossible to follow the Court in holding, on the one hand, that the control hearing was permissibly postponed, but, on the other, that the ICC abused its discretion in similarly deferring any Clayton Act hearing.
61
To require such a proliferation of hearings as to a single transaction—one involving a straightforward business transaction neot iated in terms of existing market conditions and the existing needs of the parties—is bound to obstruct the smooth workings of the administrative process. The penetrating observations of Professor Jaffe seem to me especially pertinent in this situation:
62
'I gather the impression that some judges who quite insistently display a 'correct' attitude of deference on substantive issues apply a different standard to procedural decisions: they do not hesitate to protract and to complicate the administrative process. Their premise may be that the considerations that dictate deference to substantive decisions are inapplicable to procedural ones. This is only partly true. * * * Since procedural decisions should be made to serve the substantive task, it follows that expertness in matters of substance are relevant to the exercise of procedural discretion.
63
'* * * (An agency) must ration its limited resources of time, energy and money. It must devote them to those exigent and soluble problems which are most nearly related to its core responsibility. What problems are most exigent, how they can best be solved * * * are questions the solution to which peculiarly demands a feeling for the whole situation. * * * If a court is not as well fitted to solve substantive problems as the agency, if on this level intermittent, disjected criticism disperses accountability, how much more is this true where the deployment of forces is involved.' Jaffe Judicial Control of Administrative Action 566—567 (1965).
64
The courts have traditionally permitted busy agencies substantial flexibility in formulating their internal procedures, and encouraged their efforts to eliminate duplicative action and repetitive hearings. See, e.g., Chicago & N.W.R. Co. v. Atchison T. & S.F.R. Co., 387 U.S. 326, 341—343, 87 S.Ct. 1585, 1594—1595, 18 L.Ed.2d 803. Federal Power Comm'n v. Tennessee Gas Co., 371 U.S. 145, 153—155, 83 S.Ct. 211, 215—217, 9 L.Ed.2d 199 where the Court approved a 'two-step procedure' as 'not only entirely appropriate but in the best tradition of effective administrative practice'; United States v. Pierce Auto Lines, 327 U.S. 515, 534—536, 66 S.Ct. 687, 697, 90 L.Ed. 821; Baltimore & O.R. Co. v. United States, 386 U.S. 372, 459, 87 S.Ct. 1100, 1146, 18 L.Ed.2d 159 (dissenting opinion); cf. Fahey v. Mallonee, 332 U.S. 245, 67 S.Ct. 1552, 92 L.Ed. 2030; Opp Cotton Mills v. Administrator of Wage and Hour Div. of Dept. of Labor, 312 U.S. 126, 152—154, 61 S.Ct. 524, 536, 85 L.Ed. 624; United States v. Illinois Central R. Co., 291 U.S. 457, 54 S.Ct. 471, 78 L.Ed. 909.
65
The allowance of such flexibility, and the exercise of prudence by the courts, is especially appropriate where, as here, the issue is not whether to hold a hearing but when to do so, and where there has been no showing that harm would come from deferring consideration of the antitrust issues. This is not a case in which a merger is about to be consummated, and in which it might be feared that the integration of two businesses will be impossible to 'unscramble' at some future time. Compare FTC v. Dean Foods Co., 384 U.S. 597, 86 S.Ct. 1738. These issues concern, as the Court's parade of speculative examples indicates, ante, p. 505-506, the implications of a possible future coordination of some carrier services between REA and Greyhound. But these matters will only crystallize for purposes of legal analysis when it is ascertained (1) what type of control, if any, Greyhound will have over REA; and (2) what type of coordinated activities are planned. None of these issues has been prejudged, and provisional relief can be granted by the Commission, if necessary, §§ 5(2), (7), (9); cf. Gilbertville Trucking Co. v. United States, 371 U.S. 115, 129 131, 83 S.Ct. 217, 225—226. The district courts likewise have authority to grant injunctive relief on application of the Commission. § 5(8).
66
In these circumstances I do not believe it was an abuse of discretion for the ICC to authorize the issuance of stock, postponing consideat ion of the control and antitrust issues until the transaction was completed some 60 days later. It is regrettable that the Court's preoccupation with the future antitrust possibilities of this situation, fully acknowledged by all but still entirely speculative, should have led it to interfere, so unnecessarily, with the obviously sensible course of procedure adopted by the Commission.
67
I would affirm the judgment of the District Court.
1
Section 20a of the Interstate Commerce Act, as amended, 41 Stat. 494, 49 U.S.C. § 20a, provides in pertinent part:
'(2) It shall be unlawful for any carrier to issue any share of capital stock * * * even though permitted by the authority creating the carrier corporation, unless and until, and then only to the extent that, upon application by the carrier, and after investigation by the Commission of the purposes and uses of the proposed issue and the proceeds thereof, * * * the Commission by order authorizes such issue * * *. The Commission shall make such order only if it finds that such issue * * * (a) is for some lawful object within its corporate purposes, and compatible with the public interest, which is necessary or appropriate for or consistent with the proper performance by the carrier of service to the public as a comon carrier, and which will not impair its ability to perform that service, and (b) is reasonably necessary and appropriate for such purpose.'
Common carriers by motor vehicle are made subject to the provisions of § 20a (2) by § 214 of the Act, as amended, 49 Stat. 557, 49 U.S.C. § 314.
2
Section 5(2)(a)(i) of the Act, as amended, 41 Stat. 480, 482, 49 U.S.C. § 5(2)(a)(i), authorizes any carrier, with the approval and authorization of the Commission, 'to acquire control of another through ownership of its stock or otherwise * * *.' Upon application of a carrier seeking such authority, the Commission 'shall afford reasonable opportunity for interested parties to be heard,' and 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) * * * 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).
3
Section 7 of the Clayton Act, as amended, 38 Stat. 731, 15 U.S.C. § 18, provides in pertinent part:
'No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock * * * 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.'
4
Section 20a was originally § 437(1) of H.R. 10453, 66th Cong., which was almost identical to earlier legislation passed by the House in 1910 and 1914. See 58 Cong.Rec. 8317—8318 (1919). The 1910 version led to a study which condemned as a 'public evil' intercorporate holdings of railroad stock. Report of the Railroad Securities Commission, H.R.Doc. No. 256, 62d Cong., 2d Sess., 21 (1911). These findings were part of the background against which Congress eventually passed § 20a, along with the Federal Trade Commission and Clayton Acts.
5
Section 5(11), 49 U.S.C. § 5(11), provides that 'any carriers or other corporations, and their officers and employees and any other persons, participating in a transaction approved or authorized * * * shall be and they are relieved from the operation of the antitrust laws * * *.'
6
Section 11 of the Clayton Act, 15 U.S.C. § 21, provides in pertinent part: '(a) Authority to enforce compliance with * * * (§ 7) by the persons respectively subject thereto is vested in the Interstate Commerce Commission where applicable to common carriers subject to the Interstate Commerce Act, as amended * * *. (b) Whenever the Commission * * * shall have reason to believe that any person is violating * * * (§ 7) it shall issue * * * a complaint * * * containing a notice of a hearing * * *. The person so complained of shall have the right to * * * show cause why an order should not be entered by the Commission * * * requiring such person to cease and desist from the violation * * *.'
7
In Pan American World Airways v. United States, 371 U.S. 296, 83 S.Ct. 476, 9 L.Ed.2d 325, we held that Congress had entrusted the narrow questions there presented to the CAB; but the violations alleged were of the Sherman Act, which unlike the Clayton Act, 15 U.S.C. § 21, supra, n. 6, contains no provision imposing an affirmative duty upon the agency to enforce the Act's provisions. The industry there was one 'regulated under a regime designed to change the prior competitive system,' id., at 301, 83 S.Ct., at 480, and the CAB could have retained power and granted antitrust immunity for the actions involved had they occurred after passage of § 411 of the Civil Aeronautics Act of 1938, 52 Stat. 1003, id., at 312, 83 S.Ct., at 486.
8
A change in the agreement providing that Greyhound should offer to purchase the stock held by the railroads before the issuance of the 500,000 shares would have developed the relevant facts, and made unnecessary postponement of the determination of either the control or competition issue.
9
If the dissident REA railroad stockholders exercised their right of first refusal to buy the 1,000,000 shares the other railroad stockholders might sell, their combined stockholdings would be increased to over 50% of the REA shares. See Brief for the United States and ICC, p. 18, n. 9.
1
The Commission found that REA had agreed 'to consider seriously and work toward a long-term agreement between applicant (REA) and Greyhound to consolidate operating functions and facilities, and to cooperate in all lawful, feasible and jointly advantageous ways to effect economies, improve service and increase public receptivity and patronage * * *.' A 'Memorandum of Understanding,' between an official of each of the two companies contained some suggested methods for achieving these goals.
2
The ICC's order dealing with the legitimacy of this transaction said: '* * * applicant urgently needs the proceeds of $10,000,000 in its program of acquiring and modernizing terminals and equipment in order to keep operating costs at a reasonable level; that it is handicapped in borrowing to finance capital improvements because of its unfavorable debt equity ratio; that the proposed issue will improve its ratio as well as reduce to some extent the amount of future borrowing required; that the price of $20 per share is fair and reasonable; and that the expenses of the issue are estimated at $15,000 * * *.'
3
The 'public interest' of concern to Congress was the problem of watered stock. See, e.g., statement of Congressman Rayburn: '* * * if we write into the law of the land a statute to the effect that before a railroad can issue new securities, before it can put them on the market, it must come before the properly constituted governmental agency, lay the full facts of its financial situation before that body, tell that body what it intends to do with the money derived from the sale of the issue of securities, and after it has received the approval of that regulating body ad it goes out and puts those securities on the market, then the Interstate Commerce Commission by this law is empowered at any time to call it to account and have it tell to that regulating body that it expended the money, the proceeds of the sale of securities, for the purposes for which it had made the application.' 58 Cong.Rec. 8376 (1919). See also statement of Congressman Esch, id., at 8317—8318. See generally MacVeagh, The Transportation Act of 1920, at 486—492 (1923).
4
Section 20a(2) reads in its entirety: 'It shall be unlawful for any carrier to issue any share of capital stock or any bond or other evidence of interest in or indebtedness of the carrier (hereinafter in this section collectively termed 'securities') or to assume any obligation or liability as lessor, lessee, guarantor, indorser, surety, or otherwise, in respect of the securities of any other person, natural or artificial, even though permitted by the authority creating the carrier corporation, unless and until, and then only to the extent that, upon application by the carrier, and after investigation by the Commission of the purposes and uses of the proposed issue and the proceeds thereof, or of the proposed assumption of obligation or liability in respect of the securities of any other person, natural or artificial, the Commission by order authorizes such issue or assumption. The Commission shall make such order only if it finds that such issue or assumption: (a) is for some lawful object within its corporate purposes, and compatible with the public interest, which is necessary or appropriate for or consistent with the proper performance by the carrier of service to the public as a common carrier, and which will not impair its ability to perform that service, and (b) is reasonably necessary and appropriate for such purpose.'
5
Both sections were parts of the Transportation Act of 1920, 41 Stat. 480, 494.
| 78
|
388 U.S. 365
87 S.Ct. 1856
18 L.Ed.2d 1249
UNITED STATES, Appellant,v.ARNOLD, SCHWINN & CO. et al.
No. 25.
Argued April 20, 1967.
Decided June 12, 1967.
[Syllabus from pages 365-366 intentionally omitted]
Richard A. Posner, Washington, D.C., for appellant.
Robert C. Keck, Chicago, Ill., and Earl E. Pollock, Washington, D.C., for appellees.
Mr. Justice FORTAS delivered the opinion of the Court.
1
The United States brought this appeal to review the judgment of the District Court in a civil antitrust case alleging violations of § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1. Direct appeal is authorized by § 2 of the Expediting Act, 32 Stat. 823, as amended, 15 U.S.C. § 29. The complaint charged a continuing conspiracy since 1952 between defendants and other alleged co-conspirators involving price fixing, allocation of exclusive territories to wholesalers and jobbers, and confinement of merchandise to franchised dealers. Named as defendants were Arnold, Schwinn & Company ('Schwinn'), the Schwinn Cycle Distributors Association ('SCDA'), and B. F. Goodrich Company ('B. F. Goodrich').1
2
At trial, the United States asserted that not only the price fixing but also Schwinn's methods of distribution were illegal per se under § 1 of the Sherman Act. The trial lasted 70 days. The evidence, largely offered by appellees, elaborately sets forth information as to the total market interaction and interbrand competition, as well as the distribution program and practices.
3
The District Court rejected the charge of price fixing. With respect to the charges of illegal distribution practices, the court held that the territorial limitation was unlawful per se as respects products sold by Schwinn to its distributors; but that the limitation was not unlawful insofar as it was incident to sales by Schwinn itself to franchised retailers where the wholesaler or jobber (hereinafter referred to as the distributor) functioned as agent or consignee, including distribution pursuant to the 'Schwinn Plan' described below.
4
The United States did not appeal from the District Court's rejection of its pricefixing charge. The appellees did not appeal from the findings and order invalidating restraints on resale by distributors who purchase products from Schwinn.
5
In this Court, the United States has abandoned its contention that the distribution limitations are illegal per se. Instead we are asked to consider these limitations in light of the 'rule of reason,' and, on the basis of the voluminous record below, to conclude that the limitations are the product of 'agreement' between Schwinn and its wholesale and retail distributors and that they constitute an unreasonable restraint of trade.
6
Appellee Schwinn is a family-owned business which for many years has been engaged in the manufacture and sale of bicycles and some limited bicycle parts and accessories.2 Appellee SCDA is an association of distributors handling Schwinn bicycles and other products. The challenged marketing program was instituted in 1952. In 1951 Schwinn had the largest single share of the United States bicycle market—22.5%. In 1961 Schwinn's share of market had fallen to 12.8% although its dollar and unit sales had risen substantially. In the same period, a competitor, Murray Ohio Manufacturing Company, which is now the leading United States bicycle producer, increased its market share from 11.6% in 1951 to 22.8% in 1961. Murray sells primarily to Sears, Roebuck & Company and other mass merchandisers. By 1962 there were nine bicycle producers in the Nation, operating 11 plants. Imor ts of bicycles amounted to 29.7% of sales in 1961.
7
Forty percent of all bicycles are distributed by national concerns which operate their own stores and franchise others. Another 20% are sold by giant chains and mass merchandisers like Sears and Montgomery Ward & Company. Sears and Ward together account for 20% of all bicycle sales. Most of these bicycles are sold under private label. About 30% of all bicycles are distributed by cycle jobbers which specialize in the trade, and the remaining 10% by hardware and general stores.
8
Schwinn sells its products primarily to or through 22 wholesale distributors, with sales to the public being made by a large number of retailers. In addition, it sells about 11% of its total to B. F. Goodrich for resale in B. F. Goodrich retail or franchised stores. There are about 5,000 to 6,000 retail dealers in the United States which are bicycle specialty shops, generally also providing servicing. About 84% of Schwinn's sales are Through such specialized dealers. Schwinn sells only under the Schwinn label, never under private label, while about 64% of all bicycles are sold under private label. Distributors and retailers handling Schwinn bicycles are not restricted to the handling of that brand. They may and ordinarily do sell a variety of brands.
9
The United States does not contend that there is in this case any restraint on interbrand competition, nor does it attempt to sustain its charge by reference to the market for bicycles as a whole. Instead, it invites us to confine our attention to the intrabrand effect of the contested restrictions. It urges us to declare that the method of distribution of a single brand of bicycles, amounting to less than one-seventh of the market, constitutes an unreasonable restraint of trade or commerce among the several States.
10
Schwinn's principal methods of selling its bicycles are as follows: (1) sales to distributors, primarily cycle distributors, B. F. Goodrich and hardware jobbers; (2) sales to retailers by means of consignment or agency arrangements with distributors; and (3) sales to retailers under the so-called Schwinn Plan which involves direct shipment by Schwinn to the retailer with Schwinn invoicing the dealers, extending credit, and paying a commission to the distributor taking the order. Schwinn fair-traded certain of its models at retail in States permitting this, and suggested retail prices for all of its bicycles in all States. During the 1952—1962 period, as the District Court found, 'well over half of the bicycles sold by Schwinn have been sold direct to the retail dealer (not to a cycle distributor) by means of Schwinn Plan sales and consignment and agency sales.' Less than half were sold to distributors.3
11
After World War II, Schwinn had begun studying and revamping its distribution pattern. As of 1951—1952, it had reduced its mailing list from about 15,000 retail outlets to about 5,500. It instituted the practice of franchising approved retail outlets. The franchise did not prevent the retailer from handling other brands, but it did require the retailer to promote Schwinn bicycles and to give them at least equal prominence with competing brands. The number of franchised dealers in any area was limited, and a retailer was franchised only as to a designated location or locations. Each franchised dealer was to purchase only from or through the distributor authorized to serve that particular area. He was authorized to sell only to consumers, and not to unfranchised retailers. The District Court found that while each Schwin f ranchised retailer 'knows that he is an unrestricted retail dealer, free to sell at his own price to any person who wants to buy on a retail basis. * * * (He) knows also that he is not a wholesaler and that he cannot sell as a wholesaler or act as an agent for some other unfranchised dealer, such as a discount house retailer * * *. When he acts as such an agent he subjects his franchise to cancellation at will by Schwinn.'
12
Schwinn assigned specific territories to each of its 22 wholesale cycle distributors. These distributors were instructed to sell only to franchised Schwinn accounts and only in their respective territories which were specifically described and allocated on an exclusive basis. The District Court found 'that certain cycle distributors have in fact not competed with each other * * * and that in so doing they have conspired with Schwinn to unreasonably restrain competition contrary to the provisions of Section 1 of the Sherman Act.' The court, however, restricted this finding and its consequent order to transactions in which the distributor purchased the bicycles from Schwinn for resale, as distinguished from sales by the distributor as agent or consignee of Schwinn or on the Schwinn Plan. The United States urges that this Court should require revision of the decree in this respect to forbid territorial exclusivity regardless of the technical form by which the products are transferred from Schwinn to the retailer or consumer.4
13
The District Court rejected the Government's contention that Schwinn had in fact canceled the franchises of some retailers because of sales to discount houses or other unfranchised dealers, nor did it find that distributors have been cut off because of sales to unfranchised retailers or violation of territorial limitations. The United States urges that this is 'clearly erroneous.' In any event, it is clear and entirely consistent with the District Court's findings that Schwinn has been 'firm and resolute' in insisting upon observance of territorial and customer limitations by its bicycle distributors and upon confining sales by franchised retailers to consumers, and that Schwinn's 'firmness' in these respects was grounded upon the communicated danger of termination. Our analysis will embrace this conclusion, rather than the finding which is urged by the Government and which was refused by the trial court that Schwinn actually terminated retail franchises or cut off distributors for the suggested reasons.
14
We come, then, to the legal issues in this case. We are here confronted with challenged vertical restrictions as to territory and dealers. The source of the restrictions is the manufacturer. These are not horizontal restraints, in which the actors are distributors with or without the manufacturer's participation. We have held in such a case, where the purpose was to prevent the distribution of automobiles to or by 'discounters,' that a 'classic conspiracy in restraint of trade' results. United States v. General Motors Corp., 384 U.S. 127, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966); see also Klor's, Inc. v. Broadway-al e Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959); Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951). Nor is this a case of territorial or dealer restrictions accompanied by price fixing, for here the issue of unlawful price fixing was tendered, litigated, decided against the appellant, and appellant has not appealed. If it were otherwise—if there were here a finding that the restrictions were part of a scheme involving unlawful price fixing, the result would be a per se violation of the Sherman Act. United States v. Sealy, Inc., 388 U.S. 350, 87 S.Ct. 1847, 18 L.Ed.2d 1238; United States v. Bausch & Lomb Co., 321 U.S. 707, 724, 64 S.Ct. 805, 814, 88 L.Ed. 1024 (1944). Because of the posture of the case and the failure of the Government to urge the point, we do not here pause to consider whether a case might be presented, short of unlawful price fixing, in which the activities of the manufacturer to affect resale prices—whether styled price 'maintenance' or 'stabilization' or otherwise—would fatally infect vertical customer restrictions so as to require a conclusion of per se violation. The Government does not contend that a per se violation of the Sherman Act is presented by the practices which are involved in this appeal (that is, without reference to the practice which the lower court enjoined and which is not before us). Accordingly, we are remitted to an appraisal of the market impact of these practices.
15
In White Motor Co. v. United States, 372 U.S. 253, 83 S.Ct. 696, 9 L.Ed.2d 738 (1963), this Court refused to affirm summary judgment against the manufacturer even though there were not only vertical restrictions as to territory and customer selection but also unlawful price fixing. The Court held that there was no showing that the price fixing was 'an integral part of the whole distribution system' and accordingly it declined to outlaw the system because of the possibility that a trial laying bare 'the economic and business stuff out of which these arrangements emerge' might demonstrate their reasonableness. Id., at 263, 83 S.Ct., at 702. So here we must look to the specifics of the challenged practices and their impact upon the marketplace in order to make a judgment as to whether the restraint is or is not 'reasonable' in the special sense in which § 1 of the Sherman Act must be read for purposes of this type of inquiry. Chicago Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 243, 62 L.Ed. 683 (1918); Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 51, 31 S.Ct. 502, 512, 55 L.Ed. 619 (1911); Apex Hosiery Co. v. Leader, 310 U.S. 469, 498, 60 S.Ct. 982, 994, 84 L.Ed. 1311 (1940).5
16
We first observe that the facts of this case do not come within the specific illustrations which the Court in White Motor articulated as possible factors relevant to a showing that the challenged vertical restraint is sheltered by the rule of reason because it is not anticompetive. Schwinn was not a newcomer, seeking to break into or stay in the bicycle business. It was not a 'failing company.' On the contrary, at the initiation of these practices, it was the leading bicycle producer in the Nation. Schwinn contends, however, and the trial court found, that the reasons which induced it to adopt the challenged distribution program were to enable it and the small, independent merchants that made up its chain of distribution to compete more effectively in the marketplace. Schwinn sought a better way of distributing its product: a method which would promote sales, increase stability of its distributor and dealer outlets, and augment profits. But this argument, appealing as it is, is not enough to avoid the Sherman Act proscription; because, in a sense, every restrictive practice is designed to augment the profit and competitive position of its participants. Price fixing does so, for example, and so may a well-calculated division of territories. See United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940). The antitrust outcome does not turn merely on the presence of sound business reason or motive. Here, for example, if the test of reasonableness were merely whether Schwinn's restrictive distribution program and practices were adopted 'for good business reasons' and not merely to injure competitors, or if the answer turned upon whether it was indeed 'good business practice,' we should not quarrel with Schwinn's eloquent submission or the finding of the trial court. But our inquiry cannot stop at that point. Our inquiry is whether, assuming nonpredatory motives and business purposes and the incentive of profit and volume considerations, the effect upon competition in the marketplace is substantially adverse. The promotion of self-interest alone does not invoke the rule of reason to immunize otherwise illegal conduct. It is only if the conduct is not unlawful in its impact in the marketplace or if the self-interest coincides with the statutory concern with the preservation and promotion of competition that protection is achieved. Chicago Board of Trade, 246 U.S., at 238, 38 S.Ct., at 243.
17
On this basis, restraints as to territory or customers, vertical or horizontal, are unlawful if they are 'ancillary to the price-fixing' (White Motor Co. v. United States, supra, 372 U.s., at 260, 83 S.Ct. at 700) or if the price fixing is 'an integral part of the whole distribution system.' (Bausch & Lomb, supra, 321 U.S., at 720, 64 S.Ct., at 812). In those situations, it is needless to inquire further into competitive effect because it is established doctrine that, unless permitted by statute, the fixing of prices at which others may sell is anticompetitive, and the unlawfulness of the price fixing infects the distribution restrictions. Cf. Sealy, supra, and Bausch & Lomb, supra. At the other extreme, a manufacturer of a product other and equivalent brands of which are readily available in the market may select his customers, and for this purpose he may 'franchise' certain dealers to whom, alone, he will sell his goods. Cf. United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919). If the restraint stops at that point—if nothing more is involved than vertical 'confinement' of the manufacturer's own sales of the merchandise to selected dealers, and if competitive products are readily available to others, the restriction, on these facts alone, would not violate the Sherman Act. It is within these boundary lines that we must analyze the present case.
18
The District Court here enjoined appellees from limiting the territory within which any wholesaler or jobber may sell any Schwinn product which it has purchased. It held that these are agreements to divide territory and, as such, are per se violations of § 1 of the Sherman Act. The court made clear that it confined its order to transactions in which the distributor purchases from Schwinn. As to consignment, agency and Schwinn Plan transactions, the court held that, in these instances, 'Schwinn has a right to allocate its agents or salesmen to a particular territory.' The court also held that the franchising of retailers was reasonable in view of the competitive problem presented by 'giant' bicycle retailerssu ch as Sears and Ward and by other mass merchandisers, and it declined to enjoin appellees' practices with respect to confinement of sale by distributors or Schwinn to franchised retailers, or to forbid Schwinn and its distributors from continuing to prohibit franchised retailers from selling to discount houses or other unfranchised retailers for resale to the public.
19
As noted above, appellees have not appealed from the District Court's order, and, accordingly, we have before us only the Government's pleas: (1) that the decree should not be confined to sale transactions between Schwinn and wholesalers but should reach territorial restrictions upon distributors whether they are incident to sale and resale transactions or to consignment, agency of Schwinn-Plan relationship between Schwinn and the distributors; (2) that agreements requiring distributors to limit their distribution to only such retailers as are franchised should be enjoined; and (3) that arrangements preventing franchised retailers from supplying nonfranchised retailers, including discount stores, should also be forbidden.
20
As to point (2), the Government argues that it is illogical and inconsistent to forbid territorial limitations on resales by distributors where the distributor owns the goods, having bought them from Schwinn, and, at the same time, to exonerate arrangements which require distributors to confine resales of the goods they have bought to 'franchised' retailers. It argues that requiring distributors, once they have purchased the product, to confine sales to franchised retailers is indistinguishable in law and principle from the division of territory which the decree condemns. Both, the Government argues, are in the nature of restraints upon alienation which are beyond the power of the manufacturer to impose upon its vendees and which, since the nature of the transaction includes an agreement, combination or understanding, are violations of § 1 of the Sherman Act. Cf. Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502 (1911); United States v. Bausch & Lomb Co., supra; Klor's Inc. v. Broadway-Hale Stores, Inc., supra; Fashion Originators' Guild v. FTC, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941); United States v. General Motors Corp., 384 U.S. 127, 86 S.Ct. 1321 (1966). We agree, and upon remand, the decree should be revised to enjoin any limitation upon the freedom of distributors to dispose of the Schwinn products, which they have bought from Schwinn, where and to whomever they choose. The principle is, of course, equally applicable to sales to retailers, and the decree should similarly enjoin the making of any sales to retailers upon any condition, agreement or understanding limiting the retailer's freedom as to where and to whom it will resell the products.
21
The appellant vigorously argues that, since this remedy is confined to situations where the distributor and retailer acquire title to the bicycles, it will provide only partial relief; that to prevent the allocation of territories and confinement to franchised retail dealers, the decree can and should be enlarged to forbid these practices, however effected—whether by sale and resale or by agency, consignment, or the Schwinn Plan. But we are dealing here with a vertical restraint embodying the unilateral program of a single manufacturer. We are not dealing with a combination of manufacturers, as in Klor's or of distributors, as in General Motors. We are not dealing with a 'division' of territory in the sense of all allocation by and among the distributors, see Sealy, supra, or an agreement among distributors to restrict their competition, see General Motors, supra. We are here concerned with a truly vertical arrangement, raising the fundamental question of the degree to which a manufacturer may not only select the customers to whom he will seel, but also allocate territories for resale and confine access to his product to selected, or franchised, retailers. We conlu de that the proper application of § 1 of the Sherman Act to this problem requires differentiation between the situation where the manufacturer parts with title, dominion, or risk with respect to the article, and where he completely retains ownership and risk of loss.
22
As the District Court held, where a manufacturer sells products to his distributor subject to territorial restrictions upon resale, a per se violation of the Sherman Act results. And, as we have held, the same principle applies to restrictions of outlets with which the distributors may deal and to restraints upon retailers to whom the goods are sold. Under the Sherman Act, it is unreasonable without more for a manufacturer to seek to restrict and confine areas or persons with whom an article may be traded after the manufacturer has parted with dominion over it. White Motor, supra; Dr. Miles, supra. Such restraints are so obviously destructive of competition that their mere existence is enough. If the manufacturer parts with dominion over his product or transfers risk of loss to another, he may not reserve control over its destiny or the conditions of its resale.6 To permit this would sanction franchising and confinement of distribution as the ordinary instead of the unusual method which may be permissible in an appropriate and impelling competitive setting, since most merchandise is distributed by means of purchase and sale. On the other hand, as indicated in White Motor, we are not prepared to introduce the inflexibility which a per se rule might bring if it were applied to prohibit all vertical restrictions of territory and all franchising, in the sense of designating specified distributors and retailers as the chosen instruments through which the manufacturer, retaining ownership of the goods, will distribute them to the public. Such a rule might severely hamper smaller enterprises resorting to reasonable methods of meeting the competition of giants and of merchandising through independen dealers, and it might sharply accelerate the trend towards vertical integration of the distribution process. But to allow this freedom where the manufacturer has parted with dominion over the goods—the usual marketing situation—would violate the ancient rule against restraints on alienation and open the door to exclusivity of outlets and limitation of territory further than prudence permits.
23
The Government does not here contend for a per se rule as to agency, consignment, or Schwinn-Plan transactions even though these may be used—as they are here—to implement a scheme of confining distribution outlets as in this case. Where the manufacturer retains title, dominion, and risk with respect to the product and the position and function of the dealer in question are, in fact, indistinguishable from those of an agent or salesman of the manufacturer, it is only if the impact of the confinement is 'unreasonably' restrictive of competition that a violation of § 1 results from such confinement, unencumbered by culpable price fixing. Simpson v. Union Oil Co., 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964). As the District Court found, Schwinn adopted the challenged distribution programs in a competitive situation dominated by mass merchandisers which command access to large-scale advertising and promotion, choice of retail outlets, both owned and franchised, and adequate sources of supply. It is not claimed that Schwinn's practices or other circumstances resulted in an inadequate competitive situation with respect to the bicycle market; and ter e is nothing in this record—after elimination of the price-fixing issue—to lead us to conclude that Schwinn's program exceeded the limits reasonably necessary to meet the competitive problems posed by its more powerful competitors. In these circumstances, the rule of reason is satisfied.
24
We do not suggest that the unilateral adoption by a single manufacturer of an agency or consignment pattern and the Schwinn type of restrictive distribution system would be justified in any and all circumstances by the presence of the competition of mass merchandisers and by the demonstrated need of the franchise system to meet that competition. But certainly, in such circumstances, the vertically imposed distribution restraints—absent price fixing and in the presence of adequate sources of alternative products to meet the needs of the unfranchised—may not be held to be per se violations of the Sherman Act. The Government, in this Court, so concedes in this case.
25
On this record, we cannot brand the District Court's finding as clearly erroneous and cannot ourselves conclude that Schwinn's franchising of retailers and its confinement of retail sales to them—so long as it retains all indicia of ownership, including title, dominion, and risk, and so long as the dealers in question are indistinguishable in function from agents or salesmen constitute an 'unreasonable' restraint of trade. Critical in this respect are the facts: (1) that other competitive bicycles are available to distributors and retailers in the marketplace, and there is no showing that they are not in all respects reasonably interchangeable as articles of competitive commerce with the Schwinn product;7 (2) that Schwinn distributors and retailers handle other brands of bicycles as well as Schwinn's; (3) in the present posture of the case we cannot rule that the vertical restraints are unreasonable because of their intermixture with price fixing; and (4) we cannot disagree with the findings of the trial court that competition made necessary the challenged program; that it was justified by, and went no further than required by, competitive pressures; and that its net effect is to preserve and not to damage competition in the bicycle market. Application of the rule of reason here cannot be confined to intrabrand competition. When we look to the product market as a whole, we cannot conclude that Schwinn's franchise system with respect to products as to which it retains ownership and risk constitutes an unreasonable restraint of trade. This does not, of course, excuse or condone the per se violations which, in substance, consist of the control over the resale of Schwinn's products after Schwinn has parted with ownership thereof. Once the manufacturer has parted with title and risk, he has parted with dominion over the product, and his effort thereafter to restrict territory or persons to whom the product may be transferred whether by explicit agreement or by silent combination or understanding with his vendee—is a per se violation of § 1 of the Sherman Act.
26
Accordingly, the judgment of the District Court is reversed and the cause remanded for the entry of a decree in accordance with this opinion. It is so ordered.
27
Reversed and remanded.
28
Mr. Justice CLARK and Mr. Justice WHITE took no part in the decision of this case.
29
Mr. Justice STEWART, whom Mr. Justice HARLAN joins, concurring in part and dissenting in part.
30
I agree with the Court's basic determination that Schwinn's marketing system is, under the rule of reason, entirely consonant with the antitrust laws. But I cannot understand how that marketing system becomes per se unreasonable and illegal in those instances where it is effectuated through sales to wholesalers and dealers.
31
Schwinn's present marketing policies were developed in the late 1940's and early 1950's. Studies undertaken at that time revealed that Scwi nn's existing distribution activities were haphazard and inefficient, involving a large number of wholesalers and over 15,000 retailers of every size and variety. Many of the retailers were largely or completely inactive, resulting in unprofitable overhead costs and wasted advertising and promotional expenditures for Schwinn. Moreover, the sales methods and service resources of many of these outlets did not comport with Schwinn's traditional policy of manufacturing and selling quality bicycles. Schwinn believed that proper promotion of its products required an active and stable dealer organization, composed to experienced people who could properly promote, assembly and service bicycles. Such dealers were to be found primarily in small independent bicycle sales and repair shops, rather than hardware stores or mass merchandisers that sold bicycles unassembled in the carton and provided no service and repair facilities.1 As the District Court found, 'Schwinn determined that it did not want Tom, Dick and Harry to be selling its product in a carton collecting the price paid, 'kissing the customer goodbye,' depositing his profit and forgetting the customer, Schwinn, and the public generally.'2
32
Schwinn accordingly developed a franchising policy that would assure quality and efficiency in its distribution system. After consulting with marketing experts in government and industry and clearing its program with the Federal Trade Commission, it franchised about 5,500 selected retailers to market its products. 'Schwinn chose those who by their record were best credit risks, made the most sales, and provided the best service for Schwinn bicycles.'3 These retailers were predominantly the small independent bicycle sales and repair dealers mentioned above who now represent nearly all of Schwinn's outlets.
33
By forming this relationship with independent dealers, Schwinn hoped to meet the competition of the giant chain distributors. These distributors account for 60% of retail bicycle sales. Although the past decade and a half has been one of unprecedented vigorous competition in the industry, spurred by a flood of imported bicycles, Schwinn's policy has in large part succeeded. While profits and margins have been squeezed,4 Schwinn's sales have increased substantially, it has pared the number of inactive retailers and increased the number of high-volume dealers, and it has reaped a greater return from its advertising and promotional expenditures. As the District Court concluded:5
34
'The evidence is abundantly clear that Schwinn's practice of eliminating dead timber, useless and inactive or relatively inactive accounts, and persons and firms unable or unwilling to provide service and part replacements, and adopting and adhering to a franchise program instead of restraining trade in Schwinn bicycles, has greatly enhanced trade in Schwinn bicycles and has in fact been the salvation of Schwinn * * * and has actually made for gunuine competition in the bicycle manufacturing industry.'
35
Of course, the whole premise of Schwinn's marketing program was that its product would be sold to the public only by the qualified retailers whom it had franchised.6 Accordingly, Schwinn unilaterally instituted a policy of ensuring that only franchised retailers would be supplied with its products. This policy was the same, whether distribution took the form of the so-called ch winn Plan deliveries to retailers, or agency and consignment arrangements, or whether it took the form of sales by Schwinn to wholesalers and resale by them to retailers. The record shows that this policy was implemented largely through request and persuasion by Schwinn.
36
Schwinn's selective distribution policy may be said to embody restraints on trade. As such, it is subject to antitrust scrutiny, but the scrutiny does not stop with the label 'restraint.' The words written by Mr. Justice Brandeis for a unanimous Court in Chicago Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, bear repeating:
37
'Every agreement concerning trade, every regulation of trade, restrains. To bind, to restrain, is of their very essence. The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition. To determine that question the court must ordinarily consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts.'
38
In White Motor Co. v. United States, 372 U.S. 253, 83 S.Ct. 696, we reaffirmed this formulation of the rule of reason and refused to adopt per se rules to invalidate vertical restraints on distribution analogous to but more restrictive than those involved here. The District Court in this case explicitly followed the directive of White Motor and examined in detail the historical and economic context in which Schwinn's distribution policies were developed and applied. The evidence fully supports the District Court's findings that the ultimate effect of these policies was to enhance rather than undermine or destroy competition, and I fully join the Court's approval of those findings today.
39
It is worth emphasizing that the justifications for Schwinn's franchising policy rest not only on the facts of this particular record, but on larger issues of social and economic policy. This Court has recognized Congress' concern with the disappearance of the small independent merchant in the face of competition from vertically integrated giants. See Brown Shoe Co. v. United States, 370 U.S. 294, 333, 346, 82 S.Ct. 1502, 1535, 8 L.Ed.2d 510. This trend in many cases reflects the inexorable economic realities of modern marketing. But franchising promises to provide the independent merchant with the means to become an efficient and effective competitor of large integrated firms. Through various forms of franchising, the manufacturer is assured qualified and effective outlets for his products, and the franchisee enjoys backing in the form of know-how and financial assistance.7 These franchise arrangements also make significant social and economic contributions of importance to the whole society, as at least one federal court has noted:
40
'The franchise method of operation has the advantage, from the standpoint of our American system of competitive economy, of enabling numerous groups of individuals with small capital to become entrepreneurs. * * * If our economy had not developed that system of operation these individuals would have turned out to have been merely employees. The franchise system creates a class of independent businessmen; it provides the public with an opportunity to get a uniform product at numerous points of sale from small independent contractors, rather than from employees of ava st chain.'8
41
Indiscriminate invalidation of franchising arrangements would eliminate their creative contributions to competition and force 'suppliers to abandon franchising and integrate forward to the detriment of small business. In other words, we may inadvertently compel concentration' by misguided zealousness.9 As a result, '(t)here (would be) less and less place for the independent.' Standard Oil Co. of Cal. and Standard Stations v. United States, 337 U.S. 293, 315, 69 S.Ct. 1051, 1064, 93 L.Ed. 1371 (separate opinion of Mr. Justice Douglas). 'The small, independent business man (would) be supplanted by clerks.' Id., at 321, 69 S.Ct., at 1067.
42
For these reasons I completely agree with the Court's basic approach to this case. The Court fully recognizes that outlawry of franchising 'might severely hamper smaller enterprises resorting to reasonable methods of meeting the competition of giants and of merchandising through independent dealers, and it might sharply accelerate the trend towards vertical integration of the distribution process.' It acknowledges that Schwinn's marketing program has operated 'to preserve and not to damage competition,' and concludes that 'the rule of reason' is satisfied. It upholds the legality of the Schwinn Plan, which is the heart of Schwinn's marketing system, now accounting for 75% of the distribution of Schwinn's products. It also upholds the legality of Schwinn's agency and consignment arrangements.
43
But the Court inexplicably turns its back on the values of competition by independent merchants and the flexible wisdom of the rule of reason when dealing with distribution effected through sales to wholesalers. In Schwinn's particular marketing system, this mode of distribution plays a subsidiary role, serving to meet 'fill-in' orders by dealers, whose basic stock is obtained through the Schwinn Plan. Without considering its function, purpose or effect, the Court declares this aspect of Schwinn's program to be per se invalid. It likewise applies the same automatic rule of illegality to strike down Schwinn's policy of ensuring that franchised dealers do not resell to unfranchised retailers and thus subvert the whole distributional scheme.
44
Despite the Government's concession that the rule of reason applies to all aspects of Schwinn's distribution system, the Court nevertheless reaches out to adopt a potent per se rule. No previous antitrust decision of this Court justifies its action.10 Instead, it completely repudiates the only case in point, White Motor. There the manufacturer sold its products to retailers and wholesalers and imposed territorial and customer restrictions on their resale, restrictions much more stringent than those involved here. But the Court in White Motor refused to apply a per se rule to invalidate these restrictions, and declared that their legality must be tested under the rule of reason by examining their actual impact in a particular competitive context. The Court today is unable to give any reasons why, only four years later, this preceen t should be overruled. Surely, we have not in this short interim accumulated sufficient new experience or insight to justify embracing a rule automatically invalidating any vertical restraints in a distribution system based on sales to wholesalers and retailers. See 372 U.S., at 264—266, 83 S.8ct., at 702 (concurring opinion of Mr. Justice Brennan). Indeed, the Court does not cite or discuss any new data that might support such a radical change in the law. And I am completely at a loss to fathom how the Court can adopt its per se rule concerning distributional sales and yet uphold identical restrictions in Schwinn's marketing scheme when distribution takes the form of consignment or Schwinn Plan deliveries. It does not demonstrate that these restrictions are in their actual operation somehow more anticompetitive or less justifiable merely because the contractual relations between Schwinn and its jobbers and dealers bear the label 'sale' rather than 'agency' or 'consignment.' Such irrelevant formulae are false guides to sound adjudication in the antitrust field: 'Our choice must be made on the basis not of abstractions but of the realities of modern industrial life.' Standard Oil Co. v. California and Standard Stations v. United States, 337 U.S. 293, 320, 69 S.Ct. 1051, 1067 (separate opinion of Mr. Justice Douglas).
45
The Court advances two justifications for its new per se rule. I do not find either persuasive. First, the Court correctly observes that the District Court invalidated territorial limitations on the resale activities of Schwinn's wholesalers. The Court then states that it would be 'illogical and inconsistent' not to strike down all the other restrictions in Schwinn's marketing program insofar as sales are involved. But the Court completely overlooks the fact that the territorial limitations invalidated by the District Court were the product of a horizontal conspiracy between the wholesalers. The District Court found a 'division of territory by agreement between the distributors * * * horizontal in nature.'11 Schwinn played a part in this conspiracy, but just as in United States v. General Motors Corp., 384 U.S. 127, 140, 86 S.Ct. 1321, 1327, that did not alter its fundamentally horizontal nature as a 'classic conspiracy in restraint of trade'. In striking down this horizontal division of markets between competing distributors, the District Court was simply following familiar precedent. Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971. By contrast, the restrictions involved in the franchising methods now before us are quite different in nature, as the Court points out elsewhere in its opinion:
46
'(W)e are dealing here with a vertical restraint embodying the unilateral program of a single manufacturer. We are not dealing with a combination * * * of distributors, as in General Motors. We are not dealing with a 'division' of territory in the sense of an allocation by and among the distributors * * * or an agreement among distributors to restrict their competition, see General Motors, supra. We are here concerned with a truly vertical arrangement.' Ante, at 378.
47
As the Court also emphasizes, the legal principles applicable to horizontal and vertical restrictions are quite different.12 Thus, applying the rule of reason to the vertical restraints now in issue is not at all 'illogical and inconsistent' with per se invalidation of the wholesalers' horizontal division of markets.
48
The Court's second justification for its new per se doctrine is the 'ancient rule against restraints on alienation.' This rule of property law is certainly ancient—it traces its lineage to Coke on Littleton.13 But it is hardly the practice of this Court to embrace a rule of law merely on grounds of its antiquity. Moreover, the common-law doctrine of restraints on alienation is not nearly so rigid as the Court implies. The original rule concerned itself with arbitrary and severe restrictions on alienation, such as total prohibition of resale.14 As early as 1711 it was recognized that only unreasonable restraints should be proscribed, and that partial restrictions could be justified when ancillary to a legitimate business purpose and not unduly anticompetitive in effect. Mitchel v. Reynolds, 1 P.Wms. 181, 24 Eng.Rep. 347. Cf. Tulk v. Moxhay, 2 Ph. 774, 41 Eng.Rep. 1143. This doctrine of ancillary restraints was assimilated into the jurisprudence of this country in the nineteenth century. See Oregon Steam Navigation Co. v. Winsor, 20 Wall. 64, 22 L.Ed. 315; United States v. Addyston Pipe & Steel Co., 6 Cir., 85 F. 271.
49
Centuries ago, it could perhaps be assumed that a manufacturer had no legitimate interest in what happened to his products once he had sold them to a middleman and they had started their way down the channel of distribution. But this assumption no longer holds true in a day of sophisticated marketing policies, mass advertising, and vertically integrated manufacturer-distributors.15 Restrictions like those involved in a franchising program should accordingly be able to claim justification under the ancillary restraints doctrine.
50
In any event, the state of the common law 400 or even 100 years ago is irrelevant to the issue before us: the effect of the antitrust laws upon vertical distributional restraints in the American economy today. The problems involved are difficult and complex,16 and our response should be more reasoned and sensitive than the simple acceptance of a hoary formula. 'It does seem possible that the nineteenth and twentieth centuries have contributed legal conceptions growing out of new types of business which make it inappropriate' for the Court to base its 'overthrow of contemporary commercial policies on judicial views of the reign of Queen Elizabeth.'17 Moreover, the Court's answer makes everything turn on whether the arrangement between a manufacturer and his distributor is denominated a 'sale' or 'agency.' Such a rule ignores and conceals the 'economic and business stuff out of which' a sound answer should be fashioned. White Motor Co. v. United States, supra, 372 U.S., at 263, 83 S.Ct., at 702. The Court has emphasized in the past that these differencs in form often do not represent 'differences in substance.' Simpson v. Union Oil Co., 377 U.S. 13, 22, 84 S.Ct. 1051, 1057. Draftsmen may cast business arrangements in different legal molds for purposes of commercial law, but these arrangements may operate identifically in terms of economic function and competitive effect. It is the latter factors which are the concern of the antitrust laws. The record does not show that the purposes of Schwinn's franchising program and the competitive consequences of its implementation differed, depending on whether Schwinn sold its products to wholesalers or resorted to the agency, consignment, or Schwinn Plan methods of distribution. And there is no reason generally to suppose that variations in the formal legal packaging of franchising programs produce differences in their actual impact in the marketplace. Our experience is to the contrary. As stated in United States v. Masonite Corp., 316 U.S. 265, 278, 280, 62 S.Ct. 1070, 1077.
51
'(T)his Court has quite consistently refused to allow the form into which the parties chose to cast the transaction to govern.
52
'So far as the Sherman Act is concerned the result must turn not on the skill with which counsel has manipulated the concepts of 'sale' and 'agency' but on the significance of the business practices in terms of restraint of trade.'
53
The impact of today's decision on Schwinn may be slight, because over 75% of its distribution is done through the Perhaps Schwinn can rearrange the legal terminology of its other distributional arrangements to avoid 'the ancient rule against restraints on alienation' which the Court adopts. Perhaps other manufacturers who use sales as a means of distribution in a franchise or analogous marketing system can do likewise. If they can, the Court has created considerable business for legal draftsmen. If they cannot, vertical integration and the elimination of small independent competitors are likely to follow. Meanwhile, the Court has, sua sponte, created a bluntly indiscriminate and destructive weapon which can be used to dismantle a vast variety of distributional systems—competitive and anticompetitive, reasonable and unreasonable.
54
In view of the commendably careful and realistic approach the Court has taken in analyzing the basic structure of Schwinn's marketing program, it is particularly disappointing to see the Court balk at the label 'sale,' and turn from reasoned response to a wooden and irrelevant formula.
1
B. F. Goodrich negotiated a consent decree with the Government prior to trial, and dropped out of the case.
2
Its parts and accessory business is less than 4% of its total sales. Like other bicycle producers, Schwinn manufactures the basic parts of its bicycles and purchases components from parts producers.
3
Schwinn's brief represents that presently about 75% of all Schwinn sales are now made under the Schwinn Plan; that there are no longer any consignment agreements; and that only two cycle distributors remain under agency contract.
4
The United States did not perfect this point below, and its Jurisdictional Statement in this Court did not expressly request revision of the decree. Appellees strenuously urge that we should for these reasons refuse to consider the United States' present argument that the decree should be enlarged as stated. See Supreme Court Rules 15(1)(c)(1) and 40(1)(d)(2); General Talking Pictures Co. v. Western Electric Co., 304 U.S. 175, 177—179, 58 S.Ct. 849, 850—751, 82 L.Ed. 1548 (1938). While we regard with disfavor the Government's practice in this case, both with respect to the point here at issue and its change of theory, in view of the nature and importance of the case, we shall not reject the tendered issues because the request for the substance of the relief was embraced in the question presented in the Jurisdictional Statement and because appellees have not been adversely affected.
5
The United States, having abandoned its contention that the restraints in the present case are per se violations of the Sherman Act, now urges 'a standard of presumptive illegality,' presumably on the basis of a showing that a product has been distributed by means of arrangements for territorial exclusivity and restricted retail and wholesale customers. We do not consider this additional subtlety which was not advanced in the trial court. The burden of proof in antitrust cases remains with the plaintiff, deriving such help as may be available in the circumstances from particularized rules articulated by law—such as the per se doctrine. Cf. Standard Oil Co. (Indiana) v. United States, 283 U.S. 163, 179, 51 S.Ct. 421, 427, 75 L.Ed. 926 (1931).
6
We have no occasion here to consider whether a patentee has any greater rights in this respect. Compare United States v. General Electric Co., 272 U.S. 476, 47 S.Ct. 192, 71 L.Ed. 362 (1926), with United States v. New Wrinkle, Inc., 342 U.S. 371, 72 S.Ct. 350, 96 L.Ed. 417 (1952); United States v. Line Material Co., 333 U.S. 287, 68 S.Ct. 550, 92 L.Ed. 701 (1948); and United States v. Masonite Corp., 316 U.S. 265, 62 S.Ct. 1070, 86 L.Ed. 1461 (1942).
7
We do not regard Schwinn's claim of product excellence as establishing the contrary.
1
The District Court found that: 'Bicycles are in constant need of service. Hardware stores, department stores, and most other sales outlets do not furnish these services. Retail cycle outlets do. That is the type of business establishment that Schwinn has turned to as their local sales representatives.' 237 F.Supp. 323, 335.
2
237 F.Supp., at 338.
3
Ibid.
4
In the 1951—1961 period, Schwinn's prices fell between 9% and 12%, and its profits also declined. The margins of its wholesalers and retailers were reduced about 10% during the same period.
5
237 F.Supp., at 338.
6
This premise is common to all forms of franchising. See Lewis & Hancock, The Franchise System of Distribution 4, 9 (1963).
7
See Lewis & Hancock, The Franchise System of Distribution (1963); Small Business Administration, Management Aids for Small Manufacturers, No. 182, 'Expanding Sales Through Franchising' (1966).
8
Susser v. Carvel Corp., D.C., 206 F.Supp. 636, 640, aff'd, 2 Cir., 332 F.2d 505, cert. granted, 379 U.S. 885, 85 S.Ct. 158, 13 L.Ed.2d 91, cert. dismissed, 381 U.S. 125, 85 S.Ct. 1364, 14 L.Ed.2d 284. See also Distribution Problems Affecting Small Business, Hearings before the Subcommittee on Antitrust and Monopoly, Senate Committee on the Judiciary, 89th Cong., 1st Sess., 7—9, 12—13 (statement of Small Business Administration Administrator Eugene P. Foley), 90 (statement of Federal Trade Commission Chairman Paul Rand Dixon) (March 1965); Lewis & Hancock, The Franchise System of Distribution 91—92 (1963); Handler, Statement Before the Small Business Administration, 11 Antitrust Bull. 417, 419.
9
Wilson, Some Problems Relative to Franchise Arrangements, 11 Antitrust Bull. 473, 488. It should be noted that since the start of this litigation, Schwinn has taken over 30% of the wholesaling of its products by vertical integration.
10
The Court cites Dr. Miles Medical Co. v. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, but that case was decided on common-law principles and involved price-fixing, long recognized by this Court as per se invalid.
11
237 F.Supp., at 342.
12
One difference between a horizontal conspiracy and vertical restraints imposed by the manufacturer is that there is often serious question whether the latter conduct involves the 'contract, combination * * * or conspiracy' required by § 1 of the Sherman Act, 2 § tat. 209, as amended, 15 U.S.C. § 1. The District Judge in this case refused to find that the relevant conduct of Schwinn and its distributors amounted to a 'contract,' 'combination' or 'conspiracy.' Instead, he stated that 'the Schwinn franchising program was conceived, hatched and born into life * * * in the minds of the Schwinn officials,' and agreed that 'the action was unilateral in nature.' Although essential to its case, the Government failed specifically to raise this issue in its Jurisdictional Statement, and I must register my disagreement with the Court's cursory treatment of the matter. The Court merely notes that 'Schwinn has been 'firm and resolute' in insisting upon observance' of the restrictions involved in its franchising program and that there was a 'communicated danger of termination' for violations of its policies. This alone does not amount to a 'contract,' 'combination' or 'conspiracy' under established precedent. United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465; United States v. Parke, Davis & Co., 262 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505.
13
2 Coke, Institutes of the Laws of England § 360 (Day ed. 1812).
14
Ibid.
15
See Elman, 'Petrified Opinions' and Competitive Realities, 66 Col.L.Rev. 625.
16
See Jordan, Exclusive and Restricted Sales Areas Under the Antitrust Laws, 9 U.C.L.A.L.Rev. 111; McLaren, Territorial Restrictions, Exclusive Dealing, and Related Sales Distribution Problems Under the Antitrust Laws, 11 Prac.Law. No. 4, 79; Preston, Restrictive Distribution Arrangements: Economic Analysis and Public Policy Standards, 30 Law & Contempt. Prob. 506; Robinson, Restraints on Trade and the Orderly Marketing of Goods, 45 Cornell L.Q. 254; Note, Restricted Channels of Distribution Under the Sherman Act, 75 Harv.L.Rev. 795.
17
Chafee, Equitable Servitudes on Chattels, 41 Harv.L.Rev. 945, 983.
| 78
|
388 U.S. 307
87 S.Ct. 1824
18 L.Ed.2d 1210
Wyatt Tee WALKER et al., Petitioners,v.CITY OF BIRMINGHAM.
No. 249.
Argued March 13 and 14, 1967.
Decided June 12, 1967.
Jack Greenberg, New York City, for petitioners.
Earl McBee and J. M. Breckenridge, Birmingham, Ala., for respondent.
Louis F. Claiborne, Washington, D.C., for United States, amicus curiae, by special leave of Court.
Mr. Justice STEWART delivered the opinion of the Court.
1
On Wednesday, April 10, 1963, officials of Birmingham, Alabama, filed a bill of complaint in a state circuit court asking for injunctive relief against 139 individuals and two organizations. The bill and accompanying affidavits stated that during the preceding seven days:
2
'(R)espondents (had) sponsored and/or participated in and/or conspired to commit and/or to encourage and/or to participate in certain movements, plans or projects commonly called 'sit-in' demonstrations, 'kneel-in' demonstrations, mass street parades, trespasses on private property after being warned to leave the premises by the owners of said property, congregating in mobs upon the public streets and other public places, unlawfully picketing private places of business in the City of Birmingham, Alabama; violation of numerous ordinances and statutes of the City of Birmingham and State of Alabama. * * *'
3
It was alleged that this conduct was 'calculated to provoke breaches of the peace,' 'threaten(ed) the safety, peace and tranquility of the City,' and placed 'an undue burden and strain upon the manpower of the Police Department.'
4
The bill stated that these infractions of the law were expected to continue and would 'lead to further imminent danger to the lives, safety, peace, tranquility and general welfare of the people of the City of Birmingham,' and that the 'remedy by law (was) inadequate.' The circuit judge granted a temporary injunction as prayed in the bill, enjoining the petitioners from, among other things, participating in or encouraging mass street parades or mass processions without a permit as required by a Birmingham ordinance.1
5
Five of the eight petitioners were served with copies of the writ early the next morning. Several hours later four of them held a press conference. There a statement was distributed, declaring their intention to disobey the injunction because it was 'raw tyranny under the guise of maintaining law and order.'2 At this press conference one of the petitioners stated: 'That they had respect for the Federal Courts, or Federal Injunctions, but in the past the State Courts had favored local law enforcement, and if the police couldn't handle it, the mob would.'
6
That night a meeting took place at which one of the petitioners announced that '(i)njunction or no injunction we are going to march tomorrow.' The next afternoon, Good Friday, a large crowd gathered in the vicinity of Sixteenth Street and Sixth Avenue North in Birmingham. A group of about 50 or 60 proceeded to parade along the sidewalk while a crowd of 1,000 to 1,500 onlookers stood by, 'clapping, and hollering, and (w)hooping.' Some of the crowd followed the marchers and spilled out into the street. At least three of the petitioners participated in this march.
7
Meetings sponsored by some of the petitioners were held that night and the following night, where calls for volunteers to 'walk' and go to jail were made. On Easter Sunday, April 14, a crowd of between 1,500 and 2,000 people congregated in the midafternoon in the vicinity of Seventh Avenue and Eleventh Street North in Birmingham. One of the petitioners was seen organizing members of the crowd in formation. A group of about 50, headed by three other petitioners, started down the sidewalk two abreast. At least one other petitioner was among the marchers. Some 300 or 400 people from among the onlookers followed in a crowd that occupied the entire width of the street and overflowed onto the sidewalks. Violence occurred. Members of the crowd threw rocks that injured a newspaperman and damaged a police motorcycle.
8
The next day the city officials who had requested the injunction applied to the state circuit court for an order to show cause why the petitioners should not be held in contempt for violating it. At the ensuing hearing the petitioners sought to attack the constitutionality of the injunction on the ground that it was vague and overbroad, and restrained free speech. They also sought to attack the Birmingham parade ordinance upon similar grounds, and upon the further ground that the ordinance had previously been administered in an arbitrary and discriminatory manner.
9
The circuit judge refused to consider any of these contentions, pointing out that there had been neither a motion to dissolve the injunction, nor an effort to comply with it by applying for a permit from the city commission before engaging in the Good Friday and Easter Sunday parades. Consequently, the court held that the only issues before it were whether it had jurisdiction to issue the temporary injunction, and whether thereafter the petitioners had knowingly violated it. Upon these issues the court found against the petitioners, and imposed upon each of them a sentence of five days in jail and a $50 fine, in accord with an Alabama statute.3
10
The Supreme Court of Alabama affirmed.4 That court, too, declined to consider the petitioners' constitutional attacks upon the injunction and the underlying Birmingham parade ordinance:
11
'It is to be remembered that petitioners are charged with violating a temporary injunction. We are not reviewing a denial of a motion to dissolve or discharge a temporary injunction. Petitioners did not file any motion to vacate the temporary injunction until after the Friday and Sunday parades. Instead, petitioners deliberately defied the order of the court and did engage in and incite others to engage in mass street parades without a permit.
12
'We hold that the circuit court had the duty and authority, in the first instance, to determine the validity of the ordinance, and, until the decision of the circuit court is reversed for error by orderly review, either by the circuit court or a higher court, the orders of the circuit court based on its decision are to be respected and disobedience of them is contempt of its lawful authority, to be punished. Howat v. State of Kansas, 258 U.S. 181, 42 S.Ct. 277, 66 L.Ed. 550.' 279 Ala. 53, 60, 62—63, 181 So.2d 493, 500, 502.
13
Howat v. State of Kansas, 258 U.S. 181, 42 S.Ct. 277, 66 L.Ed. 550, was decided by this Court almost 50 years ago. That was a case in which people had been punished by a Kansas trial court for refusing to obey an antistrike injunction issued under the state industrial relations act. They had claimed a right to disobey the court's order upon the ground that the state statute and the injunction based upon it were invalid under the Federal Constitution. The Supreme Court of Kansas had affirmed the judgment, holding that the trial court 'had general power to issue injunctions in equity, and that even if its exercise of the power was erroneous, the injunction was not void, and the defendants were precluded from attacking it in this collateral proceeding * * * that, if the injunction was erroneous, jurisdiction was not thereby forfeited, that the error was subject to correction only by the ordinary method of appeal, and disobedience to the order constituted contempt.' 258 U.S., at 189, 42 S.Ct. at 280.
14
This Court, in dismissing the writ of error, not only unanimously accepted but fully approved the validity of the rule of state law upon which the judgment of the Kansas court was grounded:
15
'An injunction duly issuing out of a court of general jurisdiction with equity powers, upon pleadings properly invoking its action, and served upon persons made parties therein and within the jurisdiction, must be obeyed by them, however erroneous the action of the court may be, even if the error be in the assumption o t he validity of a seeming, but void law going to the merits of the case. It is for the court of first instance to determine the question of the validity of the law, and until its decision is reversed for error by orderly review, either by itself or by a higher court, its orders based on its decision are to be respected, and disobedience of them is contempt of its lawful authority, to be punished.' 258 U.S., at 189—190, 42 S.Ct., at 280.
16
The rule of state law accepted and approved in Howat v. State of Kansas is consistent with the rule of law followed by the federal courts.5
17
In the present case, however, we are asked to hold that this rule of law, upon which the Alabama courts relied, was constitutionally impermissible. We are asked to say that the Constitution compelled Alabama to allow the petitioners to violate this injunction, to organize and engage in these mass street parades and demonstrations, without any previous effort on their part to have the injunction dissolved or modified, or any attempt to secure a parade permit in accordance with its terms. Whatever the limits of Howat v. State of Kansas,6 we cannot accept the petitioners' contentions in the circumstances of this case.
18
Without question the state court that issued the injunction had, as a court of equity, jurisdiction over the petitioners and over the subject matter of the controversy.7 And this is not a case where the injunction was transparently invalid or had only a frivolous pretense to validity. We have consistently recognized the strong interest of state and local governments in regulating the use of their streets and other public places. Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049; Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513; Poulos v. State of New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105; Adderley v. State of Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149. When protest takes the form of mass demonstrations, parades, or picketing on public streets and sidewalks, the free passage of traffic and the prevention of public disorder and violence become important objects of legitimate state concern. As the Court stated, in Cox v. State of Louisiana, 'We emphatically reject the notion * * * that the First and Fourteenth Amendmets afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as these amendments afford to those who communicate ideas by pure speech.' 379 U.S. 536, 555, 85 S.Ct. 453, 464, 13 L.Ed.2d 471. And as a unanimous Court stated in Cox v. State of New Hampshire:
19
'Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend.' 312 U.S., at 574, 61 S.Ct., at 765.
20
The generality of the language contained in the Birmingham parade ordinance upon which the injunction was based would unquestionably raise substantial constitutional issues concerning some of its provisions.8 Schneider v. State of New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Saia v. People of State of New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574; Kunz v. People of State of New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280. The petitioners, however, did not even attempt to apply to the Alabama courts for an authoritative construction of the ordinance. Had they done so, those courts might have given the licensing authority granted in the ordinance a narrow and precise scope, as did the New Hampshire courts in Cox v. State of New Hampshire and Poulos v. State of New Hampshire, both supra. Cf. Shuttlesworth v. City of Birmingham, 382 U.S. 87, 91, 86 S.Ct. 211, 213, 15 L.Ed.2d 176; City of Darlington v. Stanley, 239 S.C. 139, 122 S.E.2d 207. Here, just as in Cox and Poulos, it could not be assumed that this ordinance was void on its face.
21
The breadth and vagueness of the injunction itself would also unquestionably be subject to substantial constitutional question. But the way to raise that question was to apply to the Alabama courts to have the injunction modified or dissolved. The injunction in all events clearly prohibited mass parading without a permit, and the evidence shows that the petitioners fully understood that prohibition when they violated it.
22
The petitioners also claim that they were free to disobey the injunction because the parade ordinance on which it was based had been administered in the past in an arbitrary and discriminatory fashion. In support of this claim they sought to introduce evidence that, a few days before the injunction issued, requests for permits to picket had been made to a member of the city commission. One request had been rudely rebuffed,9 and this same official had later made clear that he was without power to grant the permit alone, since the issuance of such permits was the responsibility of the entire city commission.10 Assuming the truth of this proffered evidence, it does not follow that the parade ordinance was void on its face. The petitioners, moreover, did not apply for a permit either to the commission itself or to any commissioner after the injunction issued. Had they done so, and had the permit been refused, it is clear that their claim of arbitrary or discriminatory administration of the ordinance would have been considered by the state circuit court upon a motion to dissolve the injunction.11
23
This case would arise in quite a different constitutional posture if the petitioners, before disobeying the injunction, had challenged it in the Alabama courts, and had been met with delay or frustration of their constitutional claims. But there is no showing that such would have been the fate of a timely motion to modify or dissolve the injunction. There was an interim of two days between the issuance of the injunction and the Good Friday march. The petitioners give absolutely no explanation of why they did not make some application to the state court during that period. The injunction had issued ex parte; if the court had been presented with the petitioners' contentions, it might well have dissolved or at least modified its order in some respects. If it had not done so, Alabama procedure would have provided for an expedited process of appellate review.12 It cannot be presumed that the Alabama courts would have ignored the petitioners' constitutional claims. Indeed, these contentions were accepted in another case by an Alabama appellate court that struck down on direct review the conviction under this very ordinance of one of these same petitioners.13
24
The rule of law upon which the Alabama courts relied in this case was one firmly established by previous precedents. We do not deal here, therefore, with a situation where a state court has followed a regular past practice of entertaining claims in a given procedural mode, and without notice has abandoned that practice to the detriment of a litigant who finds his claim foreclosed by a novel procedural bar. Barr v. City of Columbia, 378 U.S. 146, 84 S.Ct. 1734, 12 L.Ed.2d 766. This is not a case where a procedural requirement has been sprung upon an unwary litigant when prior practice did not give him fair notice of its existence. Wright v. State of Georgia, 373 U.S. 284, 291, 83 S.Ct. 1240, 1245, 10 L.Ed.2d 349.
25
The Alabama Supreme Court has apparently never in any criminal contempt case entertained a claim of nonjurisdictional error.14 In Fields v. City of Fairfield, 273 Ala. 588, 143 So.2d 177,15 decided just three years before the present case, the defendants, members of a 'White Supremacy' organization who had disobeyed an injunction, sought to challenge the constitutional validity of a permit ordinance upon which the injunction was based. The Supreme Court of Alabama, finding that the trial court had jurisic tion, applied the same rule of law which was followed here:
26
'As a general rule, an unconstitutional statute is an absolute nullity and may not form the basis of any legal right or legal proceedings, yet until its unconstitutionality has been judicially declared in appropriate proceedings, no person charged with its observance under an order or decree may disregard or violate the order or the decree with immunity from a charge of contempt of court; and he may not raise the question of its unconstitutionality in collateral proceedings on appeal from a judgment of conviction for contempt of the order or decree * * *.' 273 Ala., at 590, 143 So.2d, at 180.
27
These precedents clearly put the petitioners on notice that they could not by-pass orderly judicial review of the injunction before disobeying it. Any claim that they were entrapped or misled is wholly unfounded, a conclusion confirmed by evidence in the record showing that when the petitioners deliberately violated the injunction they expected to go to jail.
28
The rule of law that Alabama followed in this case reflects a belief that in the fair administration of justice no man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion.16 This Court cannot hold that the petitioners were constitutionally free to ignore all the procedures of the law and carry their battle to the streets. One may sympathize with the petitioners' impatient commitment to their cause. But respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.
29
Affirmed.
APPENDIX A TO OPINION OF THE COURT.
30
'TEMPORARY INJUNCTION—
31
April 10, 1963.
32
'A verified Bill of Complaint in the above styled cause having been presented to me on this the 10th of April 1963 at 9:00 O'Clock P.M. in the City of Birmingham, Alabama.
33
'Upon consideration of said verified Bill of Complaint and the affidavits of Captain G. V. Evans and Captain George Wall, and the public welfare, peace and safety requiring it, it is hereby considered, ordered, adjudged and decreed that a peremptory or a temporary writ of injunction be and the same is hereby issued in accordance with the prayer of said petition.
34
'It is therefore ordered, adjudged and decreed by the Court that upon the complainant entering into a good and sufficient bond conditioned as provided by law, in the sum of Twenty five Hundred Dollars ($2500.00), same to be approved by the Register of this Court that the Register issue a peremptory o t emporary writ of injunction that the respondents and the others identified in said Bill of Complaint, their agents, members, employees, servants, followers, attorneys, successors and all other persons in active concert or participation with the respondents and all persons having notice of said order from continuing any act hereinabove designated particularly: engaging in, sponsoring, inciting or encouraging mass street parades or mass processions or like demonstrations without a permit, trespass on private property after being warned to leave the premises by the owner or person in possession of said private property, congregating on the street or public places into mobs, and unlawfully picketing business establishments or public buildings in the City of Birmingham, Jefferson County, State of Alabama or performing acts calculated to cause breaches of the peace in the City of Birmingham, Jefferson County, in the State of Alabama or from conspiring to engage in unlawful street parades, unlawful processions, unlawful demonstrations, unlawful boycotts, unlawful trespasses, and unlawful picketing or other like unlawful conduct or from violating the ordinances of the City of Birmingham and the Statutes of the State of Alabama or from doing any acts designed to consummate conspiracies to engage in said unlawful acts of parading, demonstrating, boycotting, trespassing and picketing or other unlawful acts, or from engaging in acts and conduct customarily known as 'kneel-ins' in churches in violation of the wishes and desires of said churches.
35
'W. A. Jenkins, Jr., As Circuit Judge of the Tenth Judicial Circuit of Alabama, In Equity Sitting.' APPENDIX B TO OPINION OF THE COURT.
36
'In our struggle for freedom we have anchored our faith and hope in the rightness of the Constitution and the moral laws of the universe.
37
'Again and again the Federal judiciary has made it clear that the priviledges (sic) guaranteed under the First and the Fourteenth Amendments are to (sic) sacred to be trampled upon by the machinery of state government and police power. In the past we have abided by Federal injunctions out of respect for the forthright and consistent leadership that the Federal judiciary has given in establishing the principle of integration as the law of the land.
38
'However we are now confronted with recalcitrant forces in the Deep South that will use the courts to perpetuate the unjust and illegal system of racial separation.
39
'Alabama has made clear its determination to defy the law of the land. Most of its public officials, its legislative body and many of its law enforcement agents have openly defied the desegregation decision of the Supreme Court. We would feel morally and legal (sic) responsible to obey the injunction if the courts of Alabama applied equal justice to all of its citizens. This would be sameness made legal. However the ussuance (sic) of this injunction is a blatant of difference made legal.
40
'Southern law enforcement agencies have demonstrated now and again that they will utilize the force of law to misuse the judicial process.
41
'This is raw tyranny under the guise of maintaining law and order. We cannot in all good conscience obey such an injunction which is an unjust, undemocratic and unconstitutional misuse of the legal process.
42
'We do this not out of any desrespect (sic) for the law but out of the highest respect for the law. This is not an attempt to evade or defy the law or engage in chaotic anarchy. Just as in all good conscience we cannot obey unjust laws, neither can we respect the unjust use of the courts.
43
'We believe in a system of law based on justice and morality. Out of our great love for the Constitution of the U.S. and our desire to purify the judicial system of the state of Alabama, we risk this critical move with an awareness of the possible consequences involved.'
44
Mr. Chief Justice WARREN, whom Mr. Justice BRENNAN and Mr. Justice FORTAS join, dissenting.
45
Petitioners in this case contend that they were convicted undr an ordinance that is unconstitutional on its face because it submits their First and Fourteenth Amendment rights to free speech and peaceful assembly to the unfettered discretion of local officials. They further contend that the ordinance was unconstitutionally applied to them because the local officials used their discretion to prohibit peaceful demonstrations by a group whose political viewpoint the officials opposed. The Court does not dispute these contentions, but holds that petitioners may nonetheless be convicted and sent to jail because the patently unconstitutional ordinance was copied into an injunction—issued ex parte without prior notice or hearing on the request of the Commissioner of Public Safety—forbidding all persons having notice of the injunction to violate the ordinance without any limitation of time. I dissent because I do not believe that the fundamental protections of the Constitution were meant to be so easily evaded, or that 'the civilizing hand of law' would be hampered in the slightest by enforcing the First Amendment in this case.
46
The salient facts can be stated very briefly. Petitioners are Negro ministers who sought to express their concern about racial discrimination in Birmingham, Alabama, by holding peaceful protest demonstrations in that city on Good Friday and Easter Sunday 1963. For obvious reasons, it was important for the significance of the demonstrations that they be held on those particular dates. A representative of petitioners' organization went to the City Hall and asked 'to see the person or persons in charge to issue permits, permits for parading, picketing, and demonstrating.' She was directed to Public Safety Commissioner Connor, who denied her request for a permit in terms that left no doubt that petitioners were not going to be issued a permit under any circumstances. 'He said, 'No you will not get a permit in Birmingham, Alabama to picket. I will picket you over to the City Jail,' and he repeated that twice.' A second, telegraphic request was also summarily denied, in a telegram signed by 'Eugene 'Bull' Connor,' with the added information that permits could be issued only by the full City Commission, a three-man body consisting of Commissioner Connor and two others.1 According to petitioners' offer of proof, the truth of which is assumed for purposes of this case, parade permits had uniformly been issued for all other groups by the city clerk on the request of the traffic bureau of the police department, which was under Commissioner Connor's direction. The requirement that the approval of the full Commission be obtained was applied only to this one group.
47
Understandably convinced that the City of Birmingham was not going to authorize their demonstrations under any circumstances, petitioners proceeded with their plans despite Commissioner Connor's orders. On Wednesday, April 10, at 9 in the evening, the city filed in a state circuit court a bill of complaint seeking an ex parte injunction. The complaint recited that petitioners were engaging in a series of demonstrations as 'part of a massive effort * * * to forcibly integrate all business establishments, churches, and other institutions' in the city, with the result that the police department was strained in its resources and the safety, peace, and tranquility were threatened. It was alleged as particularly menacing that petitioners were planning to conduct 'kneel-in' demonstrations at churches where their presence was not wanted. The city's police dogs were said to be in danger of their lives. Faced with these recitals, the Circuit Court issued the injunction in the form requested, and in effect ordered petitioners and all other persons having notice of the order to refrain for an unlimited time from carrying on any demonstrations without a permit. A permit, of course, was clearly unobtainable; the city would not have sought this injunction if it had any intention of issuing one.
48
Petitioners were served with copies of the injunction at various times on Thursday and on Good Friday. Unable to believe that such a blatant and broadly drawn prior restraint on their First Amendment rights could be valid, they announced their intention to defy it and went ahead with the planned peaceful demonstrations on Easter weekend. On the following Monday, when they promptly filed a motion to dissolve the injunction, the court found them in contempt, holding that they had waived all their First Amendment rights by disobeying the court order.
49
These facts lend no support to the court's charges that petitioners were presuming to act as judges in their own case, or that they had a disregard for the judicial process. They did not flee the jurisdiction or refuse to appear in the Alabama courts. Having violated the injunction, they promptly submitted themselves to the courts to test the constitutionality of the injunction and the ordinance it parroted. They were in essentially the same position as persons who challenge the constitutionality of a statute by violating it, and then defend the ensuing criminal prosecution on constitutional grounds. It has never been thought that violation of a statute indicated such a disrespect for the legislature that the violator always must be punished even if the statute was unconstitutional. On the contrary, some cases have required that persons seeking to challenge the constitutionality of a statute first violate it to establish their standing to sue.2 Indeed, it shows no disrespect for law to violate a statute on the ground that it is unconstitutional and then to submit one's case to the courts with the willingness to accept the penalty if the statute is held to be valid.
50
The Court concedes that '(t)he generality of the language contained in the Birmingham parade ordinance upon which the injunction was based would unquestionably raise substantial constitutional issues concerning some of its provisions.'3 Ante, p. 316. That concession is well-founded but minimal. I believe it is patently unconstitutional on its face. Our decisions have conis tently held that picketing and parading are means of expression protected by the First Amendment, and that the right to picket or parade may not be subjected to the unfettered discretion of local officials. Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). Although a city may regulate the manner of use of its streets and sidewalks in the interest of keeping them open for the movement of traffic, it may not allow local officials unbridled discretion to decide who shall be allowed to parade or picket and who shall not. '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 street 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 confort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.' Hague v. C.I.O., 307 U.S. 496, 515—516, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939) (opinion of Mr. Justice Roberts). When local officials are given totally unfettered discretion to decide whether a proposed demonstration is consistent with 'public welfare, peace, safety, health, decency, good order, morals or convenience,' as they were in this case, they are invited to act as censors over the views that may be presented to the public.4 The unconstitutionality of the ordinance is compounded, of course, when there is convincing evidence that the officials have in fact used their power to deny permits to organizations whose views they dislike.5 The record in this case hardly suggests that Commissioner Connor and the other city officials were motivated in prohibiting civil rights picketing only by their overwhelming concern for particular traffic problems. Petitioners were given to understand that under no circumstances would they be permitted to demonstrate in Birmingham, not that a demonstration would be approved if a time and place were selected that would minimize the traffic difficulties. The only circumstance that the court can find to justify anything other than a per curiam reversal is that Commissioner Connor had the foresight to have the unconstitutional ordinance included in an ex parte injunction issued without notice or hearing or any showing that it was impossible to have notice or a hearing, forbidding the world at large (insofar as it knew of the order) to conduct demonstrations in Birmingham without the consent of the city officials. This injunction was such potent magic that it transformed the command of an unconstitutional statute into an impregnable barrier, challengeable only in what likely would have been protracted legal proceedings and entirely superior in the meantime even to the United States Constitution.
51
I do not believe that giving this Court's seal of approval to such a gross misuse of the judicial process is likely to lead to greater respect for the law any more than it is likely to lead to greater protection for First Amendment freedoms. The ex parte temporary injunction has a long and odious history in this country, and its susceptibility to misuse is all too apparent from the facts of the case. As a weapon against strikes, it proved so effective in the hands of judges friendly to employers that Congress was forced to take the drastic step of removing from federal district courts the jurisdiction to issue injunctions in labor disputes.6 The labor injunction fell into disrepute largely because it was abused in precisely the same way that the injunctive power was abused in this case. Judges who were not sympathetic to the union cause commonly issued, without notice or hearing, broad restraining orders addressed to large numbers of persons of forbiddding them to engage in acts that were either legally permissible or, if illegal, that could better have been left to the regular course of criminal prosecution. The injunctions might later be dissolved, but in the meantime strikes would be crippled because the occasion on which concerted activity might have been effective had passed.7 Such injunctions so long discredited as weapons against concerted labor activities, have now been given new life by this Court as weapons against the exercise of First Amendment freedoms. Respect for the courts and for judicial process was not increased by the history of the labor injunction.8
52
Nothing in our prior decisions, or in the doctrine that a party subject to a tepo rary injunction issued by a court of competent jurisdiction with power to decide a dispute properly before it must normally challenge the injunction in the courts rather than by violating it, requires that we affirm the convictions in this case. The majority opinion in this case rests essentially on a single precedent, and that a case the authority of which has clearly been undermined by subsequent decisions. Howat v. State of Kansas, 258 U.S. 181, 42 S.Ct. 277, 66 L.Ed. 550 (1922), was decided in the days when the labor injunction was in fashion. Kansas had adopted an Industrial Relations Act, the purpose of which in effect was to provide for compulsory arbitration of labor disputes by a neutral administrative tribunal, the 'Court of Industrial Relations.' Pursuant to its jurisdiction to investigate and perhaps improve labor conditions in the coal mining industry, the 'Court' subpoenaed union leaders to appear and testify. In addition, the State obtained an injunction to prevent a strike while the matter was before the 'Court.' The union leaders disobeyed both the subpoena and the injunction, and sought to challenge the constitutionality of the Industrial Relations Act in the ensuing contempt proceeding. The Kansas Supreme Court held that the constitutionality of the Act could not be challenged in a contempt proceeding, and this Court upheld that determination.
53
Insofar as Howat v. State of Kansas might be interpreted to approve an absolute rule that any violation of a void court order is punishable as contempt, it has been greatly modified by later decisions. In In re Green, 369 U.S. 689, 82 S.Ct. 1114, 8 L.Ed.2d 198 (1962), we reversed a conviction for contempt of a state injunction forbidding labor picketing because the petitioner was not allowed to present evidence that the labor dispute was arguably subject to the jurisdiction of the National Labor Relations Board and hence not subject to state regulation. If an injunction can be challenged on the ground that it deals with a matter arguably subject to the jurisdiction of the National Labor Relations Board, then a fortiori it can be challenged on First Amendment grounds.9
54
It is not necessary to question the continuing validity of the holding in Howat v. State of Kansas, however, to demonstrate that neither it nor the Mine Workers10 case supports the holding of the majority in this case. In Howat the subpoena and injunction were issued to enable the Kansas Court of Industrial Relations to determine an underlying labor dispute. In the Mine Workers case, the District Court issued a temporary anti-strike injunction to preserve existing conditions during the time it took to decide whether it had authority to grant the Government relief in a complex and difficult action of enormous importance to the national economy. In both cases the orders were of questionable legality, but in both cases they were reasonably necessary to enable the court or administrative tribunal to decide an underlying controversy of considerable importance before it at the tme . This case involves an entirely different situation. The Alabama Circuit Court did not issue this temporary injunction to preserve existing conditions while it proceeded to decide some underlying dispute. There was no underlying dispute before it, and the court in practical effect merely added a judicial signature to a preexisting criminal ordinance. Just as the court had no need to issue the injunction to preserve its ability to decide some underlying dispute, the city had no need of an injunction to impose a criminal penalty for demonstrating on the streets without a permit. The ordinance already accomplished that. In point of fact, there is only one apparent reason why the city sought this injunction and why the court issued it: to make it possible to punish petitioners for contempt rather than for violating the ordinance, and thus to immunize the unconstitutional statute and its unconstitutional application from any attack. I regret that this strategy has been so successful.
55
It is not necessary in this case to decide precisely what limits should be set to the Mine Workers doctrine in cases involving violations of the First Amendment. Whatever the scope of that doctrine, it plainly was not intended to give a State the power to nullify the United States Constitution by the simple process of incorporating its unconstitutional criminal statutes into judicial decrees. I respectfully dissent.
56
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE, Mr. Justice BRENNAN, and Mr. Justice FORTAS concur, dissenting.
57
We sit as a court of law functioning primarily as a referee in the federal system. Our function in cases coming to us from state courts is to make sure that state tribunals and agencies work within the limits of the Constitution. Since the Alabama courts have flouted the First Amendment, I would reverse the judgment.
58
Picketing and parading are methods of expression protected by the First Amendment against both state and federal abridgment. Edwards v. South Carolina, 372 U.S. 229, 235—236, 83 S.Ct. 680, 683—684, 9 L.Ed.2d 697; Cox v. State of Louisiana, 379 U.S. 536, 546—548, 85 S.Ct. 453, 459—461, 13 L.Ed.2d 471. Since they involve more than speech itself and implicate street traffic, the accommodation of the public and the like, they may be regulated as to the times and places of the demonstrations. Schneider v. State, 308 U.S. 147, 160—161, 60 S.Ct. 146, 150—151, 84 L.Ed. 155; Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049; Poulos v. State of New Hampshire, 345 U.S. 395, 405—406, 73 S.Ct. 760, 766—767, 97 L.Ed. 1105. But a State cannot deny the right to use streets or parks or other public grounds for the purpose of petitioning for the redress of grievances. See Hague v. C.I.O., 307 U.S. 496, 515—516, 59 S.Ct. 954, 963—964, 83 L.Ed. 1423; Schneider v. State, 308 U.S. 147, 163, 60 S.Ct. 146, 151—152, 84 L.Ed. 155; Cox v. State of New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 765, 85 L.Ed. 1049; Valentine v. Chrestensen, 316 U.S. 52, 54, 62 S.Ct. 920, 921, 86 L.Ed. 1262; Jamison v. State of Texas, 318 U.S. 413, 415—416, 63 S.Ct. 669, 671—672, 87 L.Ed. 869.
59
The rich can buy advertisements in newspapers, purchase radio or television time, and rent billboard space. Those less affluent are restricted to the use of handbills (Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 108, 63 S.Ct. 870, 872, 87 L.Ed. 1292) or petitions, or parades, or mass meetings. This 'right of the people peaceably to assemble, and to petition the Government for a redress of grievance,' guaranteed by the First Amendment, applicable to the States by reason of the Fourteenth (Edwards v. South Carolina, supra, 372 U.S. at 235, 83 S.Ct. at 683), was flouted here.
60
The evidence shows that a permit was applied for. Mrs. Lola Hendricks, a member of the Alabama Christian Movement for Human Rights, authorized by its president, Reverend Shuttlesworth, on April 3, went to the poic e department and asked to see the person in charge of issuing permits. She then went to the office of Commissioner Eugene 'Bull' Connor and told him that 'we came up to apply or see about getting a permit for picketing, parading, demonstrating.' She asked Connor for the permit, 'asked if he could issue the permit, or other persons who would refer me to, persons who would issue a permit.' Commissioner Connor replied, 'No, you will not get a permit in Birmingham, Alabama to picket. I will picket you over to the City Jail.' On April 5, petitioner Shuttlesworth sent a telegram to Commissioner Connor requesting a permit to picket on designated sidewalks on April 5 and 6. The message stated that 'the normal rules of picketing' would be observed. The same day, Connor wired back a reply stating that he could not individually grant a permit, that it was the responsibility of the entire Commission and that he 'insist(ed) that you and your people do not start any picketing on the streets in Birmingham, Alabama.' Petitioners' efforts to show that the City Commission did not grant permits, but that they were granted by the city clerk at the request of the traffic division were cut off.
61
The record shows that petitioners did not deliberately attempt to circumvent the permit requirement. Rather they diligently attempted to obtain a permit and were rudely rebuffed and then reasonably concluded that any further attempts would be fruitless.
62
The right to defy an unconstitutional statute is basic in our scheme. Even when an ordinance requires a permit to make a speech, to deliver a sermon, to picket, to parade, or to assemble, it need not be honored when it is invalid on its face. Lovell v. City of Griffin, 303 U.S. 444, 452—453, 58 S.Ct. 666, 669, 82 L.Ed. 949; Thornhill v. State of Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741 742, 84 L.Ed. 1093; Jones v. City of Opelika, 316 U.S. 584, 602, 62 S.Ct. 1231, 1241—1242, 86 L.Ed. 1691, adopted per curiam on rehearing, 319 U.S. 103, 104, 63 S.Ct. 890, 87 L.Ed. 1290; Cantwell v. State of Connecticut, 310 U.S. 296, 305—306, 60 S.Ct. 900, 904, 84 L.Ed. 1213; Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430; Staub v. City of Baxley, 355 U.S. 313, 319, 78 S.Ct. 227, 280—281, 2 L.Ed.2d 302.
63
By like reason, where a permit has been arbitrarily denied one need not pursue the long and expensive route to this Court to obtain a remedy. The reason is the same in both cases. For if a person must pursue his judicial remedy before he may speak, parade, or assemble, the occasion when protest is desired or needed will have become history and any later speech, parade, or assembly will be futile or pointless.
64
Howat v. State of Kansas, 258 U.S. 181, 42 S.Ct. 277, 66 L.Ed. 550, states the general rule that court injunctions are to be obeyed until error is found by normal and orderly review procedures. See United States v. United Mine Workers, 330 U.S. 258, 293—294, 67 S.Ct. 677, 695—696, 91 L.Ed. 884. But there is an exception where 'the question of jurisdiction' is 'frivolous and not substantial.' Id., at 293, 67 S.Ct., at 695, 696. Moreover, a state court injunction is not per se sacred where federal constitutional questions are involved. In re Green, 369 U.S. 689, 82 S.Ct. 1114, 8 L.Ed.2d 198, held that contempt could not be imposed without a hearing where the state decree bordered the federal domain in labor relations and only a hearing could determine whether there was federal pre-emption. In the present case the collision between this state court decree and the First Amendment is so obvious that no hearing is needed to determine the issue.
65
As already related, petitioners made two applications to Commissioner 'Bull' Connor for a permit and were turned down. At the trial, counsel for petitioners offered to prove through the city clerk that the Commission never has granted a permit, the issuing authority being the city clerk who acts at the request of the traffic division. But he was not allowed to answer the question. And when asked to describe thepr actice for granting permits an objection was raised and sustained.
66
It is clear that there are no published rules or regulations governing the manner of applying for permits, and it is clear from the record that some permits are issued. One who reads this record will have, I think, the abiding conviction that these people were denied a permit solely because their skin was not of the right color and their cause was not popular.
67
A court does not have jurisdiction to do what a city or other agency of a State lacks jurisdiction to do. The command of the Fourteenth Amendment, through which the First Amendment is made applicable to the States, is that no 'State' shall deprive any person of 'liberty' without due process of law. The decree of a state court is 'state' action in the constitutional sense (Shelley v. Kraemer, 334 U.S. 1, 14—18, 68 S.Ct. 836, 842—845, 92 L.Ed. 1161), as much as the action of the state police, the state prosecutor, the state legislature, or the Governor himself. An ordinance unconstitutional on its face or patently unconstitutional as applied—is not made sacred by an unconstitutional injunction that enforces it. It can and should be flouted in the manner of the ordinance itself. Courts as well as citizens are not free 'to ignore all the procedures of the law,' to use the Court's language. The 'constitutional freedom' of which the Court speaks can be won only if judges honor the Constitution.
68
Mr. Justice BRENNAN, with whom THE CHIEF JUSTICE, Mr. Justice DOUGLAS, and Mr. Justice FORTAS join, dissenting.
69
Under cover of exhortation that the Negro exercise 'respect for judicial process,' the Court empties the Supremacy Clause of its primacy by elevating a state rule of judicial administration above the right of free expression guaranteed by the Federal Constitution. And the Court does so by letting loose a devastatingly destructive weapon for suppression of cherished freedoms heretofore believed indispensable to maintenance of our free society. I cannot believe that this distortion in the hierarchy of values upon which our society has been and must be ordered can have any significance beyond its function as a vehicle to affirm these contempt convictions.
I.
70
Petitioners are eight Negro Ministers. They were convicted of criminal contempt for violation of an ex parte injunction issued by the Circuit Court of Jefferson County, Alabama, by engaging in street parades without a municipal permit on Good Friday and Easter Sunday 1963. These were the days when Birmingham was a world symbol of implacable official hostility to Negro efforts to gain civil rights, however peacefully sought. The purpose of these demonstrations was peaceably to publicize and dramatize the civil rights grievances of the Negro people. The underlying permit ordinance made it unlawful 'to organize or hold * * * or to take part or participate in, any parade or procession or other public demonstration on the streets * * *' without a permit. A permit was issuable by the City Commission 'unless in its judgment the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused.'
71
Attempts by petitioners at the contempt hearing to show that they tried to obtain a permit but were rudely rebuffed by city officials were aborted when the trial court sustained objections to the testimony. It did appear, however, that on April 3, a member of the Alabama Christian Movement for Human Rights (ACMHR) was sent by one of the petitioners, the Reverend Mr. Shuttlesworth, to Birmingham city hall to inquire about permits for future demonstrations. The member stated at trial:
72
'I asked (Police) Commissioner Connor for the permit, and asked if he could issue the permit, or other persons who would refer me to, persons who would issue a permit. He said, 'No, you will not get a permit in Birmingham, Alabama to picket. I will picket you over to the City Jail,' and he repeated that twice.'
73
Two days later the Reverend Mr. Shuttlesworth sent a telegram to Police om missioner Connor requesting a permit on behalf of ACMHR to picket on given dates 'against the injustices of segregation and discrimination.' Connor replied that the permit could be granted only by the full Commission and stated, 'I insist that you and your people do not start any picketing on the streets in Birmingham, Alabama.' Petitioners were also frustrated in their attempts at the contempt hearing to show that permits were granted, not by the Commission, but by the city clerk at the request of the traffic department, and that they were issued in a discriminatory manner.
74
On April 6—7 and April 9—10, Negroes were arrested for parading without a permit. Late in the night of April 10, the city requested and immediately obtained an ex parte injunction without prior notice to petitioners. Notice of the issuance was given to five of the petitioners on April 11.1 The decree tracked the wording of the permit ordinance, except that it was still broader and more pervasive. It enjoined:
75
'* * * engaging in, sponsoring, inciting or encouraging mass street parades or mass processions or like demonstrations without a permit, trespass on private property after being warned to leave the premises by the owner or person in possession of said private property, congregating on the street or public places into mobs, and unlawfully picketing business establishments or public buildings in the City of Birminghan, Jefferson County, State of Alabama or performing acts calculated to cause breaches of the peace in the City of Birmingham, Jefferson County, in the State of Alabama or from conspiring to engage in unlawful street parades, unlawful processions, unlawful demonstrations, unlawful boycotts, unlawful trespasses, and unlawful picketing or other like unlawful conduct or from violating the ordinances of the City of Birmingham and the Statutes of the State of Alabama or from doing any acts designed to consummate conspiracies to engage in said unlawful acts of parading, demonstrating, boycotting, trespassing and picketing or other unlawful acts, or from engaging in acts and conduct customarily known as 'kneel-ins' in churches in violation of the wishes and desires of said churches. * * *'
76
Several of the Negro ministers issued statements that they would refuse to comply with what they believed to be, and is indeed, a blatantly unconstitutional restraining order.
77
On April 12, Good Friday, a planned march took place, beginning at a church in the Negro section of the city and continuing to city hall. The police, who were notified in advance by one of the petitioners of the time and route of the march, blocked the streets to traffic in the area of the church and excluded white persons from the Negro area. Approximately 50 persons marched, led by three petitioners, Martin Luther King, Ralph Abernathy, and Shuttlesworth. A large crowd of Negro onlookers which had gathered outside the church remained separate from the procession. A few blocks from the church the police stopped the procession and arrested, and jailed, most of the marchers, including the three leaders.
78
On Easter Sunday another planned demonstration was conducted. The police again were given advance notice, and again blocked the streets to traffic and white persons in the vicinity of the church. Several hundred persons were assembled at the church. Approximately 50 persons who emerged from the church began walking peaceably. Several blocks from the church the procession was stopped, as on Good Friday, and about 20 persons, including five petitioners, were arrested. The participants in both parades were in every way orderly; the only episode of violence, according a police inspector, was rock throwing by three onlookers on Easter Sunday, after petitioners were arrested; the thre rock throwers were immediately taken into custody by the police.
79
On Monday, April 15, petitioners moved to dissolve the injunction, and the city initiated criminal contempt proceedings against petitioners. At the hearing, held a week later, the Jefferson County Court considered the contempt charge first. Petitioners urged that the injunction and underlying permit ordinance were impermissibly vague prior restraints on exercise of First Amendment rights and that the ordinance had been discriminatorily applied. The court, however, limited evidence primarily to two questions: notice of and violation of the injunction. The court stated that 'the validity of its injunction order stands upon its prima facie authority to execute the same.' Petitioners were found guilty of criminal contempt and sentenced to five days in jail and a $50 fine. The Alabama Supreme Court, adopting the reasoning of United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884, applicable to federal court orders, affirmed, holding that the validity of the injunction and underlying permit ordinance could not be challenged in a contempt proceeding. 279 Ala. 53, 181 So.2d 493.
II.
80
The holding of the Alabama Supreme Court, and the affirmance of its decision by this Court, rest on the assumption that petitioners may be criminally punished although the parade ordinance and the injunction be unconstitutional on their faces as in violation of the First Amendment, and even if the parade ordinance was discriminatorily applied. It must therefore be assumed, for purposes of review of the Alabama Supreme Court's decision, and in assessing the Court's affirmance, that petitioners could successfully sustain the contentions (into which the Alabama courts refused to inquire) that the ordinance and injunction are in fact facially unconstitutional as excessively vague prior restraints on First Amendment rights and that the ordinance had been discriminatorily applied. It should be noted, without elaboration, that there is clearly sound basis in fact for this assumption: the Alabama Court of Appeals, in a case involving one of these petitioners, has held that the ordinance is 'void for vagueness because of overbroad, and consequently meaningless, standards for the issuance of permits for processions,' and that the ordinance has been enforced discriminatorily. Shuttlesworth v. City of Birmingham, 43 Ala.App. 68, 180 So.2d 114 (1965). However, it is not the merits of such claims, but the refusal of the Alabama courts to consider them, that is here involved.2
81
Like the Court, I start with the premise that States are free to adopt rules of judicial administration designed to require respect for their courts' orders. See Howat v. State of Kansas, 258 U.S. 181, 42 S.Ct. 277, 66 L.Ed. 550.3 But this does not mean that this valid state interest does not admit of collision with other and more vital interests. Surely the proposition requires no citation that a valid state interest must give way when it infringes on rights guaranteed by the Federal Constitution. The plain meaning of the Supremacy Clause requires no less.
82
In the present case we are confronted with a collision between Alabama's interest in requiring adherence to orders of its courts and the constitutional prohibition against abridgment of freedom of speech, more particularly 'the right of the people peaceably to assemble,' and the right 'to petition the Government for a redress of grievances.' See, e.g., Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117; De Jonge v. State of Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278; Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Edwards v. State of South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697; Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471. Special considerations have time and again been deemed by us to attend protection of these freedoms in the face of state interests the vindication of which results in prior restraints upon their exercise,4 or their regulation in a vague or overbroad manner,5 or in a way which gives unbridled discretion to limit their exercise to an individual or group of individuals.6 To give these freedoms the necessary 'breathing space to survive,' NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405, the Court has modified traditional rules of standing and prematurity. See Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22. We have molded both substantive rights and procedural remedies in the face of varied conflicting interests to conform to our overriding duty to insulate all individuals from the 'chilling effect' upon exercise of First Amendment freedoms generated by vagueness, overbreadth and unbridled discretion to limit their exercise.
83
The vitality of First Amendment protections has, as a result, been deemed to rest in large measure upon the ability of the individual to take his chances and express himself in the face of such restraints, armed with the ability to challenge those restraints if the State seeks to penalize that expression. The most striking examples of the right to speak first and challenge later, and of peculiar moment for the present case, are the cases concerning the ability of an individual to challenge a permit or licensing statute giving broad discretion to an individual or group, such as the Birmingham permit ordinance, despite the fact that he dd not attempt to obtain a permit or license. In Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302, the accused, prosecuted for soliciting members for an organization without a permit, contended that the ordinance was invalid on its face because it made exercise of freedom of speech contingent upon the will of the issuing authority and therefore was an invalid prior restraint—the same contention made by petitioners with regard to the Birmingham ordinance. The Georgia Court of Appeals, 94 Ga.App. 18, 93 S.E.2d 375, held that '(h)aving made no effort to secure a license the defendant is in no position to claim that any section of the ordinance is invalid or unconstitutional * * *.' Staub v. City of Baxley, supra, at 318, 78 S.Ct. at 280. We refused to regard this holding as an adequate nonfederal ground for decision, stating, supra, at 319, 78 S.Ct. at 281:
84
'The decisions of this Court have uniformly held that the failure to apply for a license under an ordinance which on its face violates the Constitution does not preclude review in this Court of a judgment of conviction under such an ordinance. Smith v. Cahoon, 283 U.S. 553, 562, 51 S.Ct. 582, 585, 75 L.Ed. 1264; Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949. 'The Constitution can hardly be thought to deny to one subjected to the restraints of such an ordinance the right to attack its constitutionality, because he has not yielded to its demands.' Jones v. City of Opelika, 316 U.S. 584, 602, 62 S.Ct. 1231, 1242, 86 L.Ed. 1691, dissenting opinion, adopted per curiam on rehearing, 319 U.S. 103, 104, 63 S.Ct. 890, 87 L.Ed. 1290.'
85
See also Cox v. State of Louisiana, 379 U.S. 536, 556—557, 85 S.Ct. 453, 465—466, 13 L.Ed.2d 471.
86
Yet by some inscrutable legerdemain these constitutionally secured rights to challenge prior restraints invalid on their face are lost if the State takes the precaution to have some judge append his signature to an ex parte order which recites the words of the invalid statute. The State neatly insulates its legislation from challnge by mere incorporation of the identical stifling, overbroad, and vague restraints on exercise of the First Amendment freedoms into an even more vague and pervasive injunction obtained invisibly and upon a stage darkened lest it be open to scrutiny by those affected. The ex parte order of the judicial officer exercising broad equitable powers is glorified above the presumably carefully considered, even if hopelessly invalid, mandates of the legislative branch. I would expect this tribunal, charged as it is with the ultimate responsibility to safeguard our constitutional freedoms, to regard the ex parte injunctive tool to be far more dangerous than statutes to First Amendment freedoms. One would expect this Court particularly to remember the stern lesson history taught courts, in the context of the labor injunction, that the ex parte injunction represents the most devastating of restraints on constitutionally protected activities. Today, however, the weapon is given complete invulnerability in the one context in which the danger from broad prior restraints has been thought to be the most acute. Were it not for the ex parte injunction, petitioners could have paraded first and challenged the permit ordinance later. But because of the ex parte stamp of a judicial officer on a copy of the invalid ordinance they barred not only from challenging the permit ordinance, but also the potentially more stifling yet unconsidered restraints embodied in the injunction itself.
87
The Court's religious deference to the state court's application of the Mine Workers' rule in the present case is in stark contrast to the Court's approach in In re Green, 369 U.S. 689, 82 S.Ct. 1114, 8 L.Ed.2d 198. The state court issued an ex parte injunction against certain labor picketing. Green, counsel for the union, advised the union that the order was invalid and that it should continue to picket so that the order could be tested in a contempt hearing. The court hed Green in contempt without allowing any challenge to the order. This Court stated that the issue was 'whether the state court was trenching on the federal domain.' In re Green, supra, at 692, 82 S.Ct. at 1116. It remanded for a hearing to determine whether the activity enjoined was 'arguably' subject to Labor Board jurisdiction. In Green, therefore, we rejected blind effectuation of the State's interest in requiring compliance with its court's ex parte injunctions because of the 'arguable' collision with federal labor policy. Yet in the present case the Court affirms the determination of a state court which was willing to assume that its ex parte order and the underlying statute were repugnant on their face to the First Amendment of the Federal Constitution. One must wonder what an odd inversion of values it is to afford greater respect to an 'arguable' collision with federal labor policy than an assumedly patent interference with constitutional rights so high in the scale of constitutional values that this Court has described them as being 'delicate and vulnerable, as well as supremely precious in our society.' NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405.
88
It is said that petitioners should have sought to dissolve the injunction before conducting their processions. That argument is plainly repugnant to the principle that First Amendment freedoms may be exercised in the face of legislative prior restraints, and a fortiori of ex parte restraints broader than such legislative restraints, which may be challenged in any subsequent proceeding for their violation. But at all events, prior resort to a motion to dissolve this injunction could not be required because of the complete absence of any time limits on the duration of the ex parte order. See Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649. Even the Alabama Supreme Court's Rule 47 leaves the timing of full judicial consideration of the validity of the restraint to that court's untrammeled discretion.
89
The shifting of the burden to petitioners to show the lawfulness of their conduct prior to engaging in enjoined activity also is contrary to the principle, settled by Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460, that
90
'The man who knows that he must bring forth proof and persuade another of the lawfulness of his conduct necessarily must steer far wider of the unlawful zone than if the State must bear these burdens. * * * In practical operation, therefore, this procedural device must necessarily produce a result which the State could not command directly. It can only result in a deterrence of speech which the Constitution makes free.'
91
The suggestion that petitioners be muffled pending outcome of dissolution proceedings without any measurable time limits is particularly inappropriate in the setting of this case. Critical to the plain exercise of the right of protest was the timing of that exercise. First, the marches were part of a program to arouse community support for petitioners' assault on segregation there. A cessation of these activities, even for a short period, might deal a crippling blow to petitioners' efforts. Second, in dramatization of their cause, petitioners, all ministers, chose April 12, Good Friday, and April 14, Easter Sunday, for their protests hoping to gain the attention to their cause which such timing might attract. Petitioners received notice of the order April 11. The ability to exercise protected protest at a time when such exercise would be effective must be as protected as the beliefs themselves. Cf. Ex parte Jackson, 96 U.S. 727, 733, 24 L.Ed. 877; Grosjean v. American Press Co., 297 U.S. 233, 248—250, 56 S.Ct. 444, 448—449, 80 L.Ed. 660; Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949. It is a flagrant denial of constitutional guarantees to balance away this principle in the name of 'respect for judicial process.' To preach 'respect' in this context is to deny the right to speak at all.
92
The Court today lets loose a devastatingly destructive weapon for infringement of freedoms jealously safeguarded not so much for the benefit of any given group of any given persuasion as for the benefit of all of us. We cannot permit fears of 'riots' and 'civil disobedience' generated by slogans like 'Black Power' to divert our attention from what is here at stake—not violence or the right of the State to control its streets and sidewalks, but the insulation from attack of ex parte orders and legislation upon which they are based even when patently impermissible prior restraints on the exercise of First Amendment rights, thus arming the state courts with the power to punish as a 'contempt' what they otherwise could not punish at all. Constitutional restrictions against abridgments of First Amendment freedoms limit judicial equally with legislative and executive power. Convictions for contempt of court orders which invalidly abridge First Amendment freedoms must be condemned equally with convictions for violation of statutes which do the same thing. I respectfully dissent.
1
The text of the injunction is reproduced as Appendix A to this opinion.
The Birmingham parade ordinance, § 1159 of the Birmingham City Code, provides that:
'It shall be unlawful to organize or hold, or to assist in organizing or holding, or to take part or participate in, any parade or procession or other public demonstration on the streets or other public ways of the city, unless a permit therefor has been secured from the commission.
'To secure such permit, written application shall be made to the commission, setting forth the probable number of persons, vehicles and animals which will be engaged in such parade, procession or other public demonstration, the purpose for which it is to be held or had, and the streets or other public ways over, along or in which it is desired to have or hold such parade, procession or other public demonstration. The commission shall grant a written permit for such parade, procession or other public demonstration, prescribing the streets or other public ways which may be used therefor, unless in its judgment the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refuse. It shall be unlawful to use for such purposes any other streets or public ways than those set out in said permit.
'The two preceding paragraphs, however, shall not apply to funeral processions.'
2
The full statement is reproduced as Appendix B to this opinion.
3
'The circuit court, or judges thereof when exercising equity jurisdiction and powers may punish for contempt by fine not exceeding fifty dollars, and by imprisonment, not exceeding five days, one or both.' Ala.Code, Tit. 13, § 143. See also id., §§ 4 5, 126.
The circuit court dismissed the contempt proceedings against several individuals on grounds of insufficient evidence.
Those petitioners who participated in the April 11 press conference contend that the circuit court improperly relied on this incident in finding them guilty of contempt, claiming that they wre engaged in constitutionally protected free speech. We find no indication that the court considered the incident for any purpose other than the legitimate one of establishing that the participating petitioners' subsequent violation of the injunction by parading without a permit was willful and deliberate.
4
The Alabama Supreme Court quashed the conviction of one defendant because of insufficient proof that he knew of the injunction before violating it, and the convictions of two others because there was no showing that they had disobeyed the order. 279 Ala. 53, 64, 181 So.2d 493, 504.
Two of the petitioners here claim that there was a complete dearth of evidence to establish that they had knowledge of the injunction before violating it, and that their convictions are therefore constitutionally defective under the principle of Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654. The Alabama Supreme Court's recitation of the evidence on this issue, which is supported by the record, plainly shows this claim is without foundation. It is of course, a familiar doctrine that proof of the elements of criminal contempt may be established by circumstantial evidence. Bullock v. United States, 6 Cir., 265 F.2d 683, cert. denied sub nom. Kasper v. United States, 360 U.S. 932, 79 S.Ct. 1452, 3 L.Ed.2d 1546.
5
Brougham v. Oceanic Steam Navigation Co., 2 Cir., 205 F. 857; Trickett v. Kaw Valley Drainage Dist., 10 Cir., 25 F.2d 851, cert. denied, 278 U.S. 624, 49 S.Ct. 26, 73 L.Ed. 544; O'Hearne v. United States, 62 App.D.C. 285, 66 F.2d 933, cert. denied, 290 U.S. 683, 54 S.Ct. 120, 78 L.Ed. 589; Locke v. United States, 5 Cir., 75 F.2d 157, cert. denied, 298 U.S. 733, 55 S.Ct. 644, 79 L.Ed. 1681; McCann v. New York Stock Exchange, 2 Cir., 80 F.2d 211, cert. denied sub nom. McCann v. Leibell, 299 U.S. 603, 57 S.Ct. 233, 81 L.Ed. 444; McLeod v. Majors, 5 Cir., 102 F.2d 128; Kasper v. Brittain, 6 Cir., 245 F.2d 92, cert. denied 355 U.S. 834, 78 S.Ct. 54, 2 L.Ed.2d 46. See also Ex parte Rowland, 104 U.S. 604, 26 L.Ed. 861; In re Ayers, 123 U.S. 443, 8 S.Ct. 164, 31 L.Ed. 216; In re Burrus, 136 U.S. 586, 10 S.Ct. 850, 34 L.Ed. 500; United States v. Shipp, 203 U.S. 563, 27 S.Ct. 165, 51 L.Ed. 319; United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884.
6
In In re Green, 369 U.S. 689, 92 S.Ct. 1114, 8 L.Ed.2d 198, the petitioner was convicted of criminal contempt for violating a labor injunction issued by an Ohio court Relying on the pre-emptive command of the federal labor law, the Court held that the state courts were required to hear Green's claim that the state court was without jurisdiction to issue the injunction. The petitioner in Green, unlike the petitioners here, had attempted to challenge the validity of the injunction before violating it by promptly applying to the issuing court for an order vacating the injunction. The petitioner in Green had further offered to prove that the court issuing the injunction had agreed to its violation as an appropriate means of testing its validity.
7
Ala.Const., Art. 6, § 144; Ala.Code, Tit. 7, §§ 1038—1039.
8
See n. 1, supra.
9
Mrs. Lola Hendricks, not a petitioner in this case, testified that on April 3:
'I went to Mr. Connor's office, the Commissioner's office at the City Hall Building. We went up and Commissioner Connor met us at the door. He asked, 'May I help you?' I told him, 'Yes, sir, we came up to apply or see about getting a permit for picketing, parading, demonstrating.'
'I asked Commissioner Connor for the permit, and askedif he could issue the permit, or other persons who would refer me to, persons who would issue a permit. He said, 'No, you will not get a permit in Birmingham, Alabama to picket. I will picket you over to the City Jail,' and he repeated that twice.'
10
Commissioner Connor sent the following telegram to one of the petitioners on April 5:
'Under the provisions of the city code of the City of Birmingham, a permit to picket as requested by you cannot be granted by me individually but is the responsiboity (sic) of the entire commission. I insist that you and your people do not start any picketing on the streets in Birmingham, Alabama.
'Eugene 'Bull' Connor, Commissioner of Public Safety.'
11
In its opinion, that court stated: 'The legal and orderly processes of the Court would require the defendants to attack the unreasonable denial of such permit by the Commission of the City of Birmingham through means of a motion to dissolve the injunction at which time this Court would have the opportunity to pass upon the question of whether or not a compliance with the ordinance was attempted and whether or not an arbitrary and capricious denial of such request was made by the Commission of the City of Birmingham. Since this course of conduct was not sought by the defendants, the Court is of the opinion that the validity of its injunction order stands upon its prima facie authority to execute the same.'
12
Ala.Code, Tit. 7 App., Sup.Ct.Rule 47.
13
Shuttlesworth v. City of Birmingham, 43 Ala.App. 68, 180 So.2d 114. The case is presently pending on certiorari review in the Alabama Supreme Court.
14
As early as 1904, the Alabama Supreme Court noted that: 'An evident distinction is to be made in contempt proceedings for the violation of the writ of injunction where the writ is improvidently or irregularly issued and where it is issued without jurisdiction * * *.' Old Dominion Telegraph Co. v. Powers, 140 Ala. 220, 226, 37 So. 195, 197. See Board of Revenue of Covington County v. Merrill, 193 Ala. 521, 68 So. 971.
15
Reversed on other grounds, 378 U.S. 248, 84 S.Ct. 360, 11 L.Ed.2d 311.
16
The same rule of law was followed in Kasper v. Brittain, 6 Cir., 245 F.2d 92. There, a federal court had ordered the public high school in Clinton, Tennessee, to desegregate. Kasper 'arrived from somewhere in the East,' and organized a campaign 'to run the Negroes out of the school.' The federal court issued an ex parte restraining order enjoining Kasper from interfering with desegregation. Relying upon the First Amendment, Kasper harangued a crowd 'to the effect that although he had been served with the restraining order, it did not mean anything * * *.' His conviction for criminal contempt was affirmed by the Court of Appeals for the Sixth Circuit. That court concluded that 'an injunctional order issued by a court must be obeyed,' whatever its seeming invalidity, citing Howat v. State of Kansas, 258 U.S. 181, 42 S.Ct. 277, 66 L.Ed. 550. This Court denied certiorari, 355 U.S. 834, 78 S.Ct. 54, 2 L.Ed.2d 46.
1
The uncontradicted testimony relating to the rebuffs of petitioners' attempts to obtain a permit is set out in footnotes 9 and 10 of the majority opinion. Petitioners were prevented by a ruling of the trial court from introducing further proof of the intransigence of Commissioner Connor and the other city officials toward any effort by Negroes to protest segregation and racial injustice. The attitude of the city administration in general and of its Public Safety Commissioner in particular are a matter of public record, of course, and are familiar to this Court from previous litigation. See Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965); Shuttlesworth v. City of Birmingham, 376 U.S. 339, 84 S.Ct. 795, 11 L.Ed.2d 766 (1964); Shuttlesworth v. City of Birmingham, 373 U.S. 262, 83 S.Ct. 1130, 10 L.Ed.2d 335 (1963); Gober v. City of Birmingham, 373 U.S. 374, 83 S.Ct. 1311, 10 L.Ed.2d 419 (1963); In re Shuttlesworth, 369 U.S. 35, 82 S.Ct. 551, 7 L.Ed.2d 548 (1962). The United States Commission on Civil Rights found continuing abuse of civil rights protesters by the Birmingham police, including use of dogs, clubs, and firehoses. 1963 Report of the United States Commission on Civil Rights 114 (Government Printing Office, 1963). Commissioner Eugene 'Bull' Connor, a self-proclaimed white supremacist (see Congress and the Nation 1945—1964:A Review of Government and Politics in the Postwar Years 1604 (Congressional Quarterly Service, 1965)) made no secret of his personal attitude toward the rights of Negroes and the decisions of this Court. He vowed that racial integration would never come to Birmingham, and wore a button inscribed 'Never' to advertise that vow. Yet the Court indulges in speculation that these civil rights protesters might have obtained a permit from this city and this man had they made enough repeated applications.
2
See United Public Workers of America v. Mitchell, 330 U.S. 75, 86—94, 67 S.Ct. 556, 562—567, 91 L.Ed. 754 (1947).
3
The opinion does speculate that the Alabama courts might have saved the ordinance by giving the licensing authority granted in the ordinance 'a narrow and precise scope,' as did the New Hampshire courts in Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941), and Poulos v. State of New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105 (1953). This suggestion ignores the fact that the statute in Cox and the ordinance in Poulos merely provided that licenses for parades and certain other gatherings must be obtained. They did not authorize local officials to determine whether the proposed parade was consistent with 'the public welfare, peace, safty , health, decency, good order, morals or convenience,' as does the Birmingham ordinance involved in this case, and so it was perfectly consistent with the statutory language for the New Hampshire Supreme Court to hold that under the statute and ordinance parade applicants had a right to a license 'with regard only to considerations of time, place and manner so as to conserve the public convenience.' 312 U.S., at 575—576, 61 S.Ct., at 765. By contrast, the Alabama courts could only give a narrow and precise scope to the Birmingham ordinance by repealing some of its language.
4
Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958); Kunz v. People of State of New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951); Niemotko v. State of Maryland, 340 U.S. 268, 71 S.Ct. 325, 328, 95 L.Ed. 267 (1951); Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). 'I believe that the First and Fourteenth Amendments require that if the streets of a town are open to some views, they must be open to all.' Cox v. State of Louisiana, 379 U.S. 536, 580, 85 S.Ct. 453, 469, 13 L.Ed.2d 471 (1965) (opinion of Mr. Justice Black).
5
Niemotko v. State of Maryland, supra.
6
The Norris-LaGuardia Act, 1932, 47 Stat. 70, 29 U.S.C. §§ 101—115.
7
Frankfurter & Greene, The Labor Injunction large numbers of persons and forbidding and Materials on Labor Law 101—107 (1962).
8
'The history of the labor injunction in action puts some matters beyond question. In large part, dissatisfaction and resentment are caused, first, by the refusal of courts to recognize that breaches of the peace may be redressed through criminal prosecution and civil action for damages, and, second, by the expansion of a simple, judicial device to an enveloping code of prohibited conduct, absorbing, en masse, executive and police functions and affecting the livelihood, and even lives, of multitudes. Especially those zealous for the unimpaired prestige of our courts have observed how the administration of law by decrees which through vast and vague phrases surmount law, undermines the esteem of courts upon which our reign of law depends. Not government, but 'government by injunction,' characterized by the consequences of a criminal prosecution without its safeguards, has been challenged.' Frankfurter & Greene, supra, at 200.
9
The attempt in footnote 6 of the majority opinion to distinguish In re Green is nothing but an attempt to alter the holding of that case. The opinion of the Court states flatly that 'a state court is without power to hold one in contempt for violating an injunction that the state court had no power to enter by reason of federal pre-emption.' 369 U.S., at 692, 82 S.Ct., at 1117 (footnote omitted). The alleged circumstance that the court issuing the injunction had agreed to its violation as an appropriate means of testing its validity was considered only a concurring opinion. Although the petitioner in Green had attempted to challenge the order in court before violating it, we did not rely on that fact in holding that the order was void. Nor is it clear to me why the Court regards this fact as important, unless it means to imply that the petitioners in this case would have been free to violate the court order if they had first made a motion to dissolve in the trial court.
10
United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947).
1
Two of petitioners received no personal notice of the injunction at all. The trial court found that they were aware of the injunction, a conclusion here challenged. Because of the disposition I would make of this case, I would not reach this issue.
2
Thus not an issue here is the extent of the State's right to control the manner of use of its streets and sidewalks. Since the Alabama courts refused to consider the merits of petitioners' constitutional claims it must be assumed for purposes of review that the ordinance and injunction were invalid attempts to exercise such control.
In Kasper v. Brittain, 245 F.2d 92, both the District Court and the Court of Appeals afforded the appellant full consideration of his First Amendment contention and found it to be without merit. In that circumstance, the language of the opinion of the Court of Appeals, 245 F.2d, at 96, presented no issue for this Court's review.
3
It should be noted that the State's interest in the integrity of its injunctive remedy in the present case is of a different order than that embodied in our Mine Workers rule. The injunctive remedy was not here ec essary to preserve the status quo while a case was pending decision, but was merely the conversion of a broad statutory restraint into a broader injunctive restraint of indefinite duration, unrelated to any pending litigation. This Court's decision in Mine Workers was directed to the integrity of the District Court's power 'to preserve existing conditions while it was determining its own authority to grant injunctive relief.' United States v. United Mine Workers, 330 U.S. 258, 293, 67 S.Ct. 677, 695, 91 L.Ed. 884. In Howat v. State of Kansas, 258 U.S. 181, 42 S.Ct. 277, 66 L.Ed. 550, the state court's order related to a pending proceeding before the state 'Court of Industrial Relations.' The State's interest is here further limited by the traditional rule of equity jurisdiction that equity does not normally restrain criminal acts but that the State should proceed by criminal prosecution with its attending safeguards.
4
See, e.g., Near v. State of Minnesota, 283 U.S. 697, 713 720, 51 S.Ct. 625, 630—633, 75 L.Ed. 1357; Freedman v. State of Maryland, 380 U.S. 51, 57—60, 85 S.Ct. 734, 738—740, 13 L.Ed.2d 649.
5
See, e.g., Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629; Baggett v. Bullitt, 377 U.S. 360, 372 373, 84 S.Ct. 1316, 1322—1323, 12 L.Ed.2d 377; Cramp v. Board of Public Instruction, 368 U.S. 278, 287—288, 82 S.Ct. 275, 280—281, 7 L.Ed.2d 285.
6
See, e.g., Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302; Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213.
| 23
|
388 U.S. 175
87 S.Ct. 2001
18 L.Ed.2d 1123
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.ALLIS-CHALMERS MANUFACTURING COMPANY et al.
No. 216.
Argued March 15, 1967.
Decided June 12, 1967.
Thurgood Marshall, Sol. Gen., and John Silard,
Washington, D.C., for petitioner.
Howard C. Equitz, Milwaukee, Wis., for respondent.
Martin C. Seham, New York City, for New York Times Display Advertising Salesmen Steering Committee, as amicus curiae.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The question here is whether a union which threatened and imposed fines, and brought suit for their collection, against members who crossed the union's picket line and went to work during an authorized strike against their employer, committed the unfair labor practice under § 8(b)(1)(A) of the National Labor Relations Act of engaging in conduct 'to restrain or coerce' employees in the exercise of their right guaranteed by § 7 to 'refrain from' concerted activities.1
2
Employees at the West Allis, and La Crosse, Wisconsin, plants of respondent Allis-Chalmers Manufacturing Company were represented by locals of the United Automobile Workers. Lawful economic strikes were conducted at both plants in support of new contract demands. In compliance with the UAW constitution, the strikes were called with the approval of the International Union after at least two-thirds of the members of each local voted by secret ballot to strike. Some members of each local crossed the picket lines and worked during the strikes. After the strikes were over, the locals brought proceedings against these members charging them with violation of the International constitution and bylaws. The charges were heard by local trial committees in proceedings at which the charged members were respresented by counsel. No claim of unfairness in the proceedings is made. The trials resulted in each charged member being found guilty of 'conduct unbecoming a Unionmember' and being fined in a sum from $20 to $100. Some of the fined members did not pay the fines and one of the locals obtained a judgment in the amount of the fine against one of its members, Benjamin Natzke, in a test suit brought in the Milwaukee County Court. An appeal from the judgment is pending in the
3
Allis-Chalmers filed unfair labor practice Wisconsin Supreme Court.
4
Allis-Chalmers filed unfair labor practice violation of § 8(b)(1)(A).2 A complaint issued and after hearing a trial examiner recommended its dismissal. The National Labor Relations Board sustained the examiner on the ground that, in the circumstances of this case, the actions of the locals, even if restraint or coercion prohibited by § 8(b)(1)(A), constituted conduct excepted from the section's prohibitions by the proviso that such prohibitions 'shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein.' 149 N.L.R.B. 67. Upon Allis-Chalmers' petition for review to the Court of Appeals for the Seventh Circuit, a panel of that court upheld the Board's decision. Following a rehearing en banc, however, the court, three judges dissenting, withdrew the panel opinion, held that the locals' conduct violated § 8(b)(1)(A), and remanded to the Board for appropriate proceedings. 358 F.2d 656. We granted certiorari, 385 U.S. 810, 87 S.Ct. 54, 17 L.Ed.2d 51. We reverse.
I.
5
The panel and the majority en banc of the Court of Appeals thought that reversal of the NLRB orde w ould be required under a literal reading of §§ 7 and 8(b)(1)(A); under that reading union members who cross their own picket lines would be regarded as exercising their rights under § 7 to refrain from engaging in a particular concerted activity, and union discipline in the form of fines for such activity would therefore 'restrain or coerce' in violation of § 8(b)(1)(A) if the section's proviso is read to sanction no form of discipline other than expulsion from the union. The panel rejected that literal reading. The majority en banc adopted it, stating that the panel 'mistakenly took the position that such a literal reading was unwarranted in the light of the history and purposes' of the sections, 358 F.2d, at 659, and holding that '(T) he statutes in question present no ambiguities whatsoever, and therefore do not require recourse to legislative history for clarification.' Id., at 660.
6
It is highly unrealistic to regard § 8(b)(1), and particularly its words 'restrain or coerce,' as precisely and unambiguously covering the union conduct involved in this case. On its face court enforcement of fines imposed on members for violation of membership obligations is no more conduct to 'restrain or coerce' satisfaction of such obligations than court enforcement of penalties imposed on citizens for violation of their obligations as citizens to pay income taxes, or court awards of damages against a contracting party for nonperformance of a contractual obligation voluntarily undertaken. But even if the inherent imprecision of the words 'restrain or coerce' may be overlooked, recourse to legislative history to determine the sense in which Congress used the words is not foreclosed. We have only this Term again admonished that labor legislation is peculiarly the product of legislative compromise of strongly held views, Local 1976, United Broth. of Carpenters and Joiners of America v. National Labor Relations Board, 357 U.S. 93, 99—100, 78 S.Ct. 1011, 1016—1017, 2 L.Ed.2d 1186, and that legislative history may not be disregarded merely because it is arguable that a provision may unambiguously embrace conduct called in question. National Woodworkers Mfrs. Assn. v. NLRB, 386 U.S. 612, 619—620, 87 S.Ct. 1250, 1266, 18 L.Ed.2d 357. Indeed, we have applied that principle to the construction of § 8(b)(1)(A) itself in holding that the section must be construed in light of the fact that it 'is only one of many interwoven sections in a complex Act, mindful of the manifest purpose of the Congress to fashion a coherent national labor policy.' National Labor Relations Board v. Drivers, etc., Local Union No. 639, 362 U.S. 274, 292, 80 S.Ct. 706, 716, 4 L.Ed.2d 710.
7
National labor policy has been built on the premise that by pooling their economic strength and acting through a labor organization freely chosen by the majority, the employees of an appropriate unit have the most effective means of bargaining for improvements in wages, hours, and working conditions. The policy therefore extinguishes the individual employee's power to order his own relations with his employer and creates a power vested in the chosen representative to act in the interests of all employees. 'Congress has seen fit to clothe the bargaining representative with powers comparable to those possessed by a legislative body both to create and restrict the rights of those whom it represents * * *.' Steele v. Louisville & N.R. Co., 323 U.S. 192, 202, 65 S.Ct. 226, 232, 89 L.Ed. 173. Thus only the union may contract the employee's terms and conditions of employment,3 and provisions for processing his grievances; the union may even bargain away his right to strike during the contract term,4 and his right to refuse to cross a lawful picket line.5 The employee may disagree with many of the union decisions but is bound by them. 'The majority-rule concept is today unquestionably at the center of our federal labor policy.'6 'The complete satisfaction of all who are represented is hardly to be expected. A wide rng e of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.' Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 686, 97 L.Ed. 1048.
8
It was because the national labor policy vested unions with power to order the relations of employees with their employer that this Court found it necessary to fashion the duty of fair representation. That duty '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.' Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 912, 17 L.Ed.2d 842. For the same reason Congress in the 1959 Landrum-Griffin amendments, 73 Stat. 519, enacted a code of fairness to assure democratic conduct of union affairs by provisions guaranteeing free speech and assembly, equal rights to vote in elections, to attend meetings, and to participate in the deliberations and voting upon the business conducted at the meetings.
9
Integral to this federal labor policy has been the power in the chosen union to protect against erosion its status under that policy through reasonable discipline of members who violate rules and regulations governing membership.7 That power is particularly vital when the members engage in strikes. The economic strike against the employer is the ultimate weapon in labor's arsenal for achieving agreement upon its terms, and '(t)he power to fine or expel strikebreakers is essential if the union is to be an effective bargaining agent * * *.'8 Provisions in union constitutions and bylaws for fines and expulsion of recalcitrants, including strikebreakers, are therefore common-place and were commonplace at the time of the Taft-Hartley amendments.9
10
In addition, the judicial view current at the time § 8(b)(1)(A) was passed was that provisions defining punishable conduct and the procedures for trial and appeal constituted part of the contract between member and union and that 'The courts' role is but to enforce the contract.'10 In International Association of Machinists v. Gonzales, 356 U.S. 617, 618, 78 S.Ct. 923, 924, 2 L.Ed.2d 1018, we recognized that '(t)his contractual conception of the relation between a member and his union widely prevails in this country * * *.' Although state courts were reluctant to intervene in internal union affairs, a body of law establishing standards of fairness in the enforcement of union discipline grew up around this contract doctrine. See Parks v. International Broth. of Electrical Workers, 4 Cir., 314 F.2d 886, 902—903.11
11
To say that Congress meant in 1947 by the § 7 amendments and § 8(b)(1)(A) to strip unions of the power to fine members for strikebreaking, however lawful the strike vote, and however fair the disciplinary procedures and penalty, is to say that Congress preceded the Landrum-Griffin amendments with an even more pervasive regulation of the internal affairs of unions. It is also to attribute to Congress an intent at war with the understanding of the union-membership relation which has been at the heart of its effort 'to fashion a coherent labor policy' and which has been a predicate underlying action by this Court and the state courts. More importantly, it is to say that Congress limited unions in the powers necessary to the discharge of their role as exclusive statutory bargaining agents by impairing the usefulness of labor's cherished strike weapon. It is no answer that the proviso to § 8(b)(1)(A) preserves to the union the power to expel the offending member. Where the union is strong and membership therefore valuable, to require expulsion of the member visits a far more severe penalty upon the member than a reasonable fine. Where the union is weak, and membership therefore of little value, the union faced with further depletion of its ranks may have no real choice except to condone the member's disobedience.12 Yet it is just such weak unions for which the power to execute union decisions taken for the benefit of all employees is most critical to effective discharge of its statutory function.
12
Congressional meaning is of course ordinarily to be discerned in the words Congress uses. But when the literal application of the imprecise words 'restrain or coerce' Congress employed in § 8(b)(1)(A) produces the extraordinary results we have meti oned we should determine whether this meaning is confirmed in the legislative history of the section.
II.
13
The explicit wording of § 8(b)(2), which is concerned with union powers to affect a member's employment, is in sharp contrast with the imprecise words of § 8(b)(1)(A). Section 8(b)(2) limits union power to compel an employer to discharge a terminated member other than for 'failure (of the employee) to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership.' It is significant that Congress expressly disclaimed in this connection any intention to interfere with union self-government or to regulate a union's internal affairs. The Senate Report stated:
14
'The committee did not desire to limit the labor organization with respect to either its selection of membership or expulsion therefrom. But the committee did wish to protect the employee in his job if unreasonably expelled or denied membership. The tests provided by the amendment are based upon facts readily ascertainable and do not require the employer to inquire into the internal affairs of the union.' S.Rep.No.105, 80th Cong., 1st Sess., 20, I Legislative History of the Labor Management Relations Act, 1947 (hereafter Leg.Hist.) p. 426. (Emphasis supplied.)
15
Senator Taft, in answer to protestations by Senator Pepper that § 8(b)(2) would intervene in the union's internal affairs and 'deny it the right to protect itself against a man in the union who betrays the objectives of the union * * *,' stated:
16
'The pending measure does not propose any limitation with respect to the internal affairs of unions. They still will be able to fire any members they wish to fire, and they still will be able to try any of their members. All that they will not be able to do, after the enactment of this bill, is this: If they fire a member for some reason other than nonpayment of dues they cannot make his employer discharge him from his job and throw him out of work. That is the only result of the provision under discussion.'13 (Emphasis supplied.)
17
Section 8(b)(1)(A) was under consideration when Senator Taft said this. Congressional emphasis that § 8(b)(2) insulated an employee's membership from his job, but left internal union affairs to union self-government, is therefore significant evidence against reading § 8(b)(1)(A) as contemplating regulation of internal discipline. This is borne out by the fact that provision was also made in the Taft-Hartley Act for a special committee to study, among other things, 'the internal organization and administration of labor unions * * *.' § 402(3), 61 Stat. 160.
18
What legislative materials there are dealing with § 8(b)(1)(A) contain not a single word referring to the application of its prohibitions to traditional internal union discipline in general, or disciplinary fines in particular. On the contrary there are a number of assurances by its sponsors that the section was not meant to regulate in internal affairs of unions.
19
The provision was not contained in the Senate or House bills reported out of committee, but was introduced as an amendment on the Senate floor by Senator Ball. The amendment was adopted in the Conference Committee, without significant enlightenment from the report of that committee. The first suggestion that restraint or coercion of employees in the exercise of § 7 rights should be an unfair labor practice appears in the Statement of Supplemental Views to the Senate Report, in which a minority of the Senate Committee, including Senators Ball, Taft, and Smith, concurred. The mischief against which the Statement inveighed was restraint and coercion by unions in organizational campaigns. 'The committee heard many instances of union coercion of employees such as that brought about by threats of reprisal against employees and their families in the course of organizing campaigns; also direct interference by mass picketing and other violence.' S.Rep.No.105, supra, a 5 0, I Leg.Hist. 456. Senator Ball proposed § 8(b)(1)(A) as an amendment to the Senate bill, and stated, 'The purpose of the amendment is simply to provide that where unions, in their organizational campaigns, indulge in practices which, if an employer indulged in them, would be unfair labor practices, such as making threats or false promises or false statements, the unions also shall be guilty of unfair labor practices.' 93 Cong.Rec. 4016, II Leg.Hist. 1018. Senator Ball gave numerous examples of the kind of union conduct the amendment was to cover. Each one related to union conduct during organizational campaigns.14 Senator Ball reiterated this purpose several times thereafter,15 including remarks added after passage of the amendment.16 The consistent thrust of his arguments was the necessity of controlling union conduct in organizational campaigns. Indeed, when Senator Holland introduced the proviso eliminating from the reach of § 8(b)(1)(A) 'the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership * * *,' Senator Ball replied,
20
'I merely wish to state to the Senate that the amendment offered by the Senator from Florida is perfectly agreeable to me. It was never the intention of the sponsors of the pending amendment to interfere with the internal affairs or organization of unions.'17 (Emphasis supplied.)
21
After acceptance of the proviso, and on the same day as the vote on the amendment itself, Senator Ball said of the proviso: 'That modification is designed to make it clear that we are not trying to interfere with the internal affairs of a union which is already organized. All we are trying to cover is the coercive and restraining acts of the union in its effort to organize unorganized employees.'18
22
Another co-sponsor of the amendment, Senator Smith, echoed this purpose: 'The pending measure is designed to protect employees in their freedom to decide whether or not they desire to join labor organizations, to prevent them from being restrained or coerced.'19
23
Senator Taft also initially confined his comments on the amendment to examples of organizational tactics.20 However, in debate with Senator Pepper, he suggested a broader but still limited application:
24
'If there is anything clear in the development of labor union history in the past 10 years it is that more and more labor union employees have come to be subject to the orders of labor union leaders. The bill provides for the right to protest against arbitrary powers which have been exercised by some of the labor union leaders.'21 (Emphasis supplied.)
25
In reply to Senator Pepper's protest that union members can protect themselves against such 'tyranny,' Senator Taft stated, 'I think it is fair to say that in the case of many of the unions, the employee has a good deal more of an opportunity to select his employer than he has to select his labor-union leader.'22 Senator Taft further observed that union leaders sometimes penalize those who vote against them. Senator Pepper then attempted to draw an analogy between union members and shareholders in a corporation, to which Senator Taft replied, 'The Congress has gone much further in protecting the rights of minority stockholders in corporations than it has in protecting the rights of members of unions. Even in this bill we do not tell the unions how they shall vote or how they shall conduct their affairs * * *.'23 (Emphasis supplied.) Senator Pepper attempted twice to clarify the effect of the amendment on internal affairs, but Senator Taft answered only that the amendment applied to nonunion men as well.24
26
It was one week after this debate between Senator Taft and Senator Pepper that § 8(b)(1)(A) was adopted by the Senate as an amendment to the bill. There was no further reference in the debates to the applicability of the section to internal union affairs, by Senator Taft or anyone else, despite the repeated statements by Senator Ball that it bore no relationship to the conduct of such affairs. At one point, Senator Saltonstall asked Senator Taft to provide examples of the kind of union conduct covered by the section. Senator Taft responded with examples of threats of bodily harm, economic coercion, and mass picketing in organizational campaigns and coercion which prevented employees not involved in a labor dispute from going to work.25 But any inference that Senator Taft envisioned that § 8(b)(1)(A) intruded into and regulated internal union affairs is negated by his categorical statements to the contrary in the contemporaneous debates on § 8(b)(2).
27
It is true that there are references in the Senate debate on § 8(b)(1)(A) to an intent to impose the same prohibitions on unions that applied to employers as regards restraint and coercion of employees in their exercise of § 7 rights.26 However apposite this parallel might be when applied to organizational tactics, it clearly is inapplicable to the relationship of a union member to his own union. Union membership allows the member a part in choosing the very course of action to which he refuses to adhere, but he has of course no role in employer conduct, and nonunion employees have no voice in the affairs of the union.27
28
Cogent support for an interpretation of the body of § 8(b)(1) as not reaching the imposition of fines and attempts at court enforcement is the proviso to § 8(b)(1). It states that nothing in the section shall 'impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein * * *.' Senator Holland offered the proviso during debate and Senator Ball immediately accepted it, stating that it was not the intent of the sponsors in any way to regulate the internal affairs of unions.28 At the very least it can be said that the proviso preserves the rights of unions to impose fines, as a lesser penalty than expulsion, and to impose fines which carry the explicit or implicit threat of expulsion for nonpayment. Therefore, under the proviso the rule in the UAW constitution governing fines is valid and the fines themselves and expulsion for nonpayment would not be an unfair labor practice. Assuming that the proviso cannot also be read to authorize court enforcement of fines, a question we need not reach,29 the fact remains that to interpret the body of § 8(b)(1) to apply to the imposition and collection of fines would be to impute to Congress a concern with the permissible means of enforcement of union fines and to attribute to Congress a narrow and disre et interest in banning court enforcement of such fines. Yet there is not one word in the legislative history evidencing any such congressional concern. And, as we have pointed out, a distinction between court enforcement and expulsion would have been anomalous for several reasons. First, Congress was operating within the context of the 'contract theory' of the union-member relationship which widely prevailed at that time. The efficacy of a contract is precisely its legal enforceability. A lawsuit is and has been the ordinary way by which performance of private money obligations is compelled. Second, as we have noted, such a distinction would visit upon the member of a strong union a potentially more severe punishment than court enforcement of fines, while impairing the bargaining facility of the weak union by requiring it either to condone misconduct or deplete its ranks.
29
There may be concern that court enforcement may permit the collection of unreasonably large fines.30 However, even were there evidence that Congress shared this concern,31 this would not justify reading the Act also to bar court enforcement of reasonable fines.32
30
The 1959 Landrum-Griffin amendments, thought to be the first comprehensive regulation by Congress of the conduct of internal union affairs,33 also negate the reach given § 8(b)(1)(A) by the majority en banc below. 'To de sure, what Congress did in 1959 does not establish what it meant in 1947. However, as another major step in an evolving pattern of regulation of union conduct, the 1959 Act is a relevant consideration. Courts may properly take into account the later Act when asked to extend the reach of the earlier Act's vague language to the limits which, read literally, the words might permit.' National Labor Relations Board v. Drivers, etc., Local Union No. 639, 362 U.S. 274, 291—292, 80 S.Ct. 706, 4 L.Ed.2d 710. In 1959 Congress did seek to protect union members in their relationship to the union by adopting measures to insure the provison of democratic processes in the conduct of union affairs and procedural due process to members subjected to discipline. Even then, some Senators emphasized that 'in establishing and enforcing statutory standards great care should be taen not to undermine union self-government or weaken unions in their role as collective-bargaining agents.' S.Rep.No.187, 86th Cong., 1st Sess., 7, U.S.Code Cong. & Admin.News 1959, p. 2318. The Eighty-sixth Congress was thus plainly of the view that self-government was not regulated in 1947. Indeed, that Congress expressly recognized that a union member may be 'fined, suspended, expelled, or otherwise disciplined,' and enacted only procedural requirements to be observed. 73 Stat. 523, 29 U.S.C. § 411(a)(5). Moreover, Congress added a proviso to the guarantee of freedom of speech and assembly disclaiming any intent 'to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution * * *.' 29 U.S.C. § 411(a)(2).
31
The 1959 provisions are significant for still another reason. We have seen that the only indication in the debates over § 8(b)(1)(A) of a reach beyond organizational tactics which restrain or coerce nonmembers was Senator Taft's concern with arbitrary and undemocratic union leadership. The 1959 amendments are addressed to that concern. The kind of regulation of internal union affairs which Senator Taft said protected stockholders of a corporation, and made necessary a 'right of protest against arbitrary powers which have been exercised by some of the labor union leaders.'34 is embodied in the 1959 Act. The requirements of adherence to democratic principles, fair procedures and freedom of speech apply to the election of union officials and extend into all aspects of union affairs.35 In the present case the procedures followed for calling the strikes and disciplining the recalcitrant members fully comported with these requirements, and were in every way fair and democratic. Whether § 8(b)(1)(A) proscribes arbitrary imposition of fines, or punishment for disobedience of a fiat of a union leader, are matters not presented by this case, and upon which we express no ivew.
32
Thus this history of congressional action does not support a conclusion that the Taft-Hartley prohibitions against restraint or coercion of an employee to refrain from concerted activities included a prohibition against the imposition of fines on members who decline to honor an authorized strike and attempts to collect such fines. Rather, the contrary inference is more jusitifed in light of the repeated refrain throughout the debates on § 8(b)(1)(A) and other sections that Congress did not propose any limitations with respect to the internal affairs of unions, aside from barring enforcement of a union's internal regulations to affect a member's employment status.
III.
33
The collective bargaining agreements with the locals incorporate union security clauses. Full union membership is not compelled by the clauses: an employee is required only to become and remain 'a member of the Union * * * to the extent of payng his monthly dues * * *.' The majority en banc below nevertheless regarded full membership to be 'the result not of individual voluntary choice but of the insertion of (this) union security provision in the contract under which a substantial minority of the employees may have been forced into membership.' 358 F.2d at 660. But the relevant inquiry here is not what motivated a member's full membership but whether the Taft-Hartley amendments prohibited disciplinary measures against a full member who crossed his union's picket line. It is clear that the fined employees involved herein enjoyed full union membership. Each executed the pledge of allegiance to the UAW constitution and took the oath of full membership. Moreover, the record of the Milwaukee County Court case against Benjamin Natzke discloses that two disciplined employees testified that they had fully participated in the proceedings leading to the strike. They attended the meetings at which the secret strike vote and the renewed strike vote were taken. It was upon this and similar evidence that the Milwaukee County Court found that Natzke 'had by his actions become a member of the union for all purposes * * *.' Allis-Chalmers offered no evidence in this proceeding that any of the fined employees enjoyed other than full union membership. We will not presum the contrary. Cf. International Association of Machinists v. Street, 367 U.S. 740, 774, 81 S.Ct. 1784, 1787, 6 L.Ed.2d 1141.36 Indeed, it is and has been allis-Chalmers' position that the Taft-Hartley prohibitions apply whatever the nature of the membership. Whether those prohibitions would apply if the locals had imposed fines on members whose membership was in fact limited to the obligation of paying monthly dues is a question not before us and upon which we intimate no view.37
34
The judgment of the Court of Appeals is reversed.
35
Reversed.
36
Mr. Justice WHITE, concurring.
37
It is true that § 8(b)(1)(A) makes it an unfair labor practice for a union to restrain or coerce any employees in the exercise of § 7 rights, but the proviso permits the union to make its own rules with respect to acquisition and retention of membership. Hence, a union may expel to enforce tis own internal rules, even though a particular rule limits the § 7 rights of its members and even though expulsion to enforce it would be a clear and serious brand of 'coercion' imposed in derogation of those § 7 rights. Such restraint and oe rcion Congress permitted by adding the proviso to § 8(b)(1)(A). Thus, neither the majority nor the dissent in this case questions the validity of the union rule against its members crossing picket lines during a properly called strike, or the propriety of expulsion to enforce the rule. Section 8(b)(1)(A), therefore, does not bar all restraint and coercion by a union to prevent the exercise by its members of their § 7 rights. 'Coercive' union rules are enforceable at least by expulsion.
38
The dissenting opinion in this case, although not questioning the enforceability of coercive rules by expulsion from membership, questions whether fines for violating such rules are enforceable at all, by expulsion or otherwise. The dissent would at least hold court collection of fines to be an unfair labor practice, apparently for the reason that fines collectible in court may be more coercive than fines enforceable by expulsion. My Brother BRENNAN, for the Court, takes a different view, reasoning that since explsion would in many cases—certainly in this one involving a strong union—be a far more coercive technique for enforcing a union rule and for collecting a reasonable fine than the threat of court enforcement, there is no basis for thinking that Congress, having accepted expulsion as a permissible technique to enforce a rule in derogation of § 7 rights, nevertheless intended to bar enforcement by another method which may be far less coercive.
39
I do not mean to indicate, and I do not read the majority opinion otherwise, that every conceivable internal union rule which impinges upon the § 7 rights of union members is valid and enforceable by expulsion and court action. There may well be some internal union rules which on their face are wholly invalid and unenforceable. But the Court seems unanimous in upholding the rule against crossing picket lines during a strike and its enforceability by expulsion from membership. On this premise I think the opinion written for the Court is the more persuasive and sensible construction of the statute and I therefore join it, although I am doubtful about the implications of some of its generalized statements.
40
Mr. Justice BLACK, whom Mr. Justice DOUGLAS, Mr. Justice HARLAN, and Mr. Justice STEWART join, dissenting.
41
The United Automobile Workers went on a lawful economic strike against the Allis-Chalmers Manufacturing Co. Some union members, refusing to engage in the concerted strike activities, crossed the picket lines and continued to work for Allis-Chalmers. The right to refrain from engaging in such 'concerted activities' is guaranteed all employees by the language of § 7 of the National Labor Relations Act, as amended, 61 Stat. 140, and § 8(b)(1)(A) of the Act, 61 Stat. 141, makes it an unfair labor practice for a union to 'restrain or coerce' employees in their exercise of their § 7 rights. Despite these emphatic guarantees of the Act, the union filed charges against the employees and imposed fines against those who had crossed its picket lines to go back to work. Though the proviso to § 8(b)(1)(A) preserves the union's 'right * * * to prescribe its own rules with respect to the * * * retention of membership therein,' the union did not attempt to exercise its right under the proviso to expel the disciplined members when they refused to pay the fines. Instead, it brought legal proceedings in state courts to compel the payment of the fines. The Court now affirms the Labor Board's action in refusing to find the union guilty of an unfair labor practice under § 8(b)(1)(A) for fining its members because they crossed its picket lines. I cannot agree and, therefore, would affirm the judgment of the Court of Appeals which set aside the Labor Board's order.
I.
42
In determining what the Court here holds, it is helpful to note what it does not hold. Since the union resorted to the courts to enforce its fines instead of relying on its own internal sanctions such as expulsion from membership, the Court correctly assumes that the proviso to § 8(b)(1)(A) cannot be read to authorize its holding. Neither does the Court attempt to sustain its holding by reference to § 7 which gives employees the right to refrain from engaging in concerted activities. To be sure, the Court in characterizing the union-member relationship as 'contractual' and in emphasizing that its holding is limited to situations where the employee is a 'full member' of the union, implies that by joining a union an employee gives up or waives some of his § 7 rights. But the Court does not say that a union member is without the § 7 right to refrain from participating in such concerted activity as an economic strike called by his union. Such a holding would be clearly unwarranted even by resort to the legislative history of the 1947 addition to § 7 of 'the right to refrain from any or all of such activities.' According to Senator Taft, that phrase was added by the Conference Committee to 'make the prohibition contained in section 8(b)(1) apply to coercive acts of unions against employees who did not wish to join or did not care to participate in a strike or a picket line.' 93 Cong.Rec. 6859, II Leg.Hist. 1623. (Emphasis added.)
43
With no reliance on the proviso to § 8(b)(1)(A) or on the meaning of § 7, the Court's holding boils down to this: a court-enforced reasonable fine for nonparticipation in a strike does not 'restrain or coerce' an employee in the exercise of his right not to participate in the strike. In holding as it does, the Court interprets the words 'restrain or coerce' in a way directly opposed to their literal meaning, for the Court admits that fines are as coercive as penalties imposed on citizens for the nonpayment of taxes. Though Senator Taft, in answer to charges that these words were ambiguous, said their meaning 'is perfectly clear,' 93 Cong.Rec. 4021, II Leg.Hist. 1025 and though any union official with sufficient intelligence and learning to be chosen as such could hardly fail to comprehend the meaning of these plain, simple English words, the Court insists on finding an 'inherent imprecision' in these words. And that characterization then allows the Court to resort to '(w)hat legislative materials there are.' In doing so, the Court finds three significant things: (1) there is 'not a single word' to indicate that § 8(b)(1)(A) was intended to apply to 'traditional internal union discipline in general, or disciplinary fines in particular'; (2) the 'repeated refrain' running through the debates on the section was that Congress did not intend to impose any limitations on the 'internal affairs of unions'; (3) the Senators who supported the section were primarily concerned with union coercion during organizational drives and with union violence in general.
44
Even were I to agree with the Court's three observations about the legislative history of § 8(b)(1)(A), I do not think they alone justify disregarding the plain meaning of the section, and it seems perfectly clear to me that the Court does not think so either. The real reason for the Court's decision is its policy judgment that unions, especially weak ones, need the power to impose fines on strikebreakers and to enforce those fines in court. It is not enough, says the Court, that the unions have the power to expel those members who refuse to participate in a strike or who fail to pay fines imposed on them for such failure to participate; it is essential that weak unions have the choice between expulsion and court-enforced fines, simply because the latter are more effective in the sense of being more punitive. Though the entire mood of Congress in 1947 was to curtail the power of unions, as it had previously curtailed the power of employers, in order to equalize the power of the two, the Court is unwilling to believe that Congress intended to impair 'the usefulness of labor's cherished strike weapon.'1 I cannot agree with this conclusion or subscribe to the Court's unarticulated premise that the Court has power to add a new weapon to the union's economic arsenal whenever the Court believes that the union needs that weapon. That is a job for Congress, not this Court.
II.
45
Though the Court recognizes that a union fine is in fact coercive, it seeks support for its holding—that court-enforced fines are not prohibited by § 8(b) (1)(A)—by reference to the proviso which authorizes a union to prescribe its own rules with respect to the retention of membership. The Court first assumes that the proviso protects the union's right to expel members for the express purpose of discouraging them from going to work. From that assumption the Court then suggests that '(a)t the very least * * * the proviso preserves the rights of unions to impose fines, as a lesser penalty than expulsion, and to impose fines which carry the * * * threat of expulsion for nonpayment.' And finally, departing a third step further from the literal language of the proviso, the Court arrives at its holding that Congress could not have meant to preclude unions from the alternative of judicially enforcing fines.
46
Contrary to the Court, I am not at all certain that a union's right under the proviso to prescribe rules for the retention of membership includes the right to restrain a member from working by trying him on the vague charge of 'conduct unbecoming a union member' and fining him for exercising his § 7 right of refusing to participate in a strike, even though the fine is only enforceable by expulsion from membership. It is one thing to say that Congress did not wish to interfere with the union's power, similar to that of any other kind of voluntary association, to prescribe specific conditions of membership. It is quite another thing to say that Congress intended to leave unions free to exercise a courtlike power to try and punish members with a direct economic sanction for exercising their right to work. Just because a union might be free, under the proviso, to expel a member for crossing a picket line does not mean that Congress left unions free to threaten their members with fines. Even though a member may later discover that the threatened fine is only enforceable by expulsion, and in that sense a 'lesser penalty,' the direct threat of a fine, to a member normally unaware of the method the union might resort to for compelling its payment, would often be more coercive than a threat of expulsion.
47
Even on the assumption that § 8(b)(1)(A) permits a union to fine a member as long as the fine is only enforceable by expulsion, the fundamental error of the Court's opinion is its failure to recognize the practical and theoretical difference between a court-enforced fine, as here, and a fine enforced by expulsion or less drastic intra-union means.2 As the Court recognizes, expulsion for nonpayment of a fine may, especially in the case of a strong union, be more severe than judicial collection of the fine. But, if the union membership has little value and if the fine is great, then court-enforcement of the fine may be more effective punishment, and that is precisely why the Court desires to provide weak unions with this alternative to expulsion, an alternative which is similar to a criminal court's power to imprison defendants who fail to pay fines.
48
In this case, each strikebreaking employee was fined from $20 to $100, and the union initiated a 'test case' in state court to collect the fines. In notifying the employee of the charges against them, however, the union warned them that each day they crossed the picket line and went to work might be considered a separate offense punishable by a fine of $100. In several of the cases, the strikes lasted for many months. Thus, although the union here imposed minimal fines for the purpose of its 'test case,' it is not too difficult to imagine a case where the fines will be so large that the threat of their imposition will absolutely restrain employees from going to work during a strike. Although an employee might be willing to work even if it meant the loss of union membership, he would have to be well paid indeed to work at the risk that he would have to pay his union $100 a day for each day worked. Of course, as the Court suggests, he might be able to defeat the union's attempt at judicial enforcement of the fine by showing it was 'unreasonable' or that he was not a 'full member' of the union, but few employees would have the courage or the financial means to be willing to take that risk. Cf. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.ed. 714.
49
The Court disposes of this tremendous practical difference between court-enforced and union-enforced fines by suggesting that Congress was not concerned holding. of union fines' and that court-enforcement of fines is a necessary consequence of the 'contract theory' of the union-member relationship. And then the Court cautions that its holding may only apply to court enforcement of 'reasonable fines.' Apparently the Court believes that these considerations somehow bring reasonable court-enforced fines within the ambit of 'internal union affairs.' There is no basis either historically or logically for this conclusion or the considerations upon which it is based. First, the Court says that disciplinary fines were commonplace at the time the Taft-Hartley Act was passed, and thus Congress could not have meant to prohibit these 'traditional internal union discipline' measures without saying so. Yet there is not one word in the authorities cited by the Court that indicates that court enforcement of fines was commonplace or traditional in 1947, and, to the contrary, until recently unions rarely resorted to court enforcement of union fines.3 Second, Congress' unfamiliarity in 1947 with this recent innovation and consequent failure to make any distinction between union-enforced and court-enforced fines cannot support the conclusion that Congress was unconcerned with the 'means' a union uses to enforce its fines. Congress was expressly concerned with enacting 'rules of the game' for unions to abide by. 93 Cong.Rec. 4436, II Leg.Hist. 1206. As noted by the Labor Board the year after § 8(b)(1)(A) was passed, '(i)n that Section, Congress was aiming at means, not at ends.' Perry Norvell Co., 80 N.L.R.B. 225, 239. At the very least Congress intended to preclude a union's use of certain means to collect fines. It is clear, as the Court recognizes, that Congress in enacting § 8(b) (2) was concerned with insulating an employee's job from his union membership. If the union here had attempted to enforce the payment of the fines by persuading the employer to discharge the nonpaying employees or to withhold the fines from their wages, it would have clearly been guilty of an unfair labor practice under § 8(b)(2).4 If the union here, operating under a union shop contract, had applied the employees' dues to the satisfaction of the fines and then charged them extra dues, that, under Board decision, would have been a violation of § 8(b)(1)(A), since it would have jeopardized the employees' jobs.5 Yet here the union has resorted to equally effective outside assistance to enforce the payment of its fines, and the Court holds that within the ambit of 'internal union discipline.' I have already pointed to the impact that $100 per day court-enforced fines may have on an employee's job—they would totally discourage him from working at all—and I fail to see how court enforcement of union fines is any more 'internal' than empoy er enforcement. The undeniable fact is that the union resorts to outside help when it is not strong enough to enforce obedience internally. And even if the union does not resort to outside help but uses threats of physical violence by its officers or other members to compel payment of its fines. I do not doubt that this too would be a violation of § 8(b)(1)(A).
50
Finally, the Court attempts to justify court-enforcement of fines by comparing it to judicial enforcement of the provisions of an ordinary commercial contract—a comparison which, according to the Court's own authority, is simply 'a legal fabrication.'6 The contractual theory of union membership, at least until recently, was a fiction used by the courts to justify judicial intervention in union affairs to protect employees, not to help unions. I cannot believe that Congress intended the effectiveness of § 8(b)(1)(A) to be impaired by such a fiction,7 or that it was content to rely on the state courts' use of this fiction to protect members from union coercion.8 Particularly is that so where the 'contract' between the union and the employee is the involuntary product of a union shop. Although the Court of Appeals held that to be the case here, the Court takes the surprising position that 'what motivated' the full union member to make the 'contract' is immaterial. I doubt that even an ordinary commercial contract is enforceable against a party who entered into it involuntarily. But I am certain that Congress did not intend to insulate union coercion form the literal language of § 8(b)(1)(A) merely because the union has secured a 'full' but involuntary contract from those it desires to coerce.
III.
51
While the Court may be correct in saying that resort to legislative history is proper here, it is certainly not justified in ignoring the plain meaning of § 8(b)(1)(A) on the basis of the inconclusive legislative history it points to. In the first place, '(w)hat legislativema terials there are dealing with § 8(b) (1)(A)' are only the remarks of a few Senators during the debate on the floor. The section was added on the floor after the bill had cleared the Senate Committee. There were no debates on the section in the House, there were no committee reports on the section, and debate in the Senate was brief. In the second place, though the Court deems the words 'restrain or coerce' to be 'imprecise,' it somehow is willing to attribute a magical quality of clarity to the refrain 'internal affairs of unions.' The Court is thus willing to attribute more certainty and careful consideration to a refrain used by several Senators in a heated debate in response to certain criticism than it is to the words repeatedly used in the Act itself.
52
The repeated refrain of the debates on § 8(b)(1)(A) was actually that it was aimed to secure 'equality * * * between employers and employees.'9 Over and over again, Senator Taft and others emphasized that if a union indulges in conduct that would be an unfair labor practice on the part of an employer, it too should be guilty of an unfair labor practice.10 Although the Court deems 'this parallel * * * clearly * * * inapplicable to the relationship of a union member to his own union,' it is clear that the sponsors of § 8(b)(1)(A) did not think so. Several times, Senator Pepper tried to persuade Senator Taft that there was a difference between an employee's relation to his employer and his relation to his union. On each occasion, Senator Taft replied, 'I cannot see any difference.' 93 Cong.Rec. 4022, II Leg.Hist. 1026, 1027. When Senator Pepper asked whether the words 'restrain or coerce' might have a different application to unions than to employers, Senator Taft replied:
53
'The Board has been defining those words for 12 years, ever since it (the Act) came into existence. Its application to labor organizations may have a slightly different implication, but it seems to me perfectly clear that from the point of view of the employee the two cases are parallel. * * * If there is anything clear in the development of labor union history in the past 10 years it is that more and more labor union employees have come to be subject to the orders of labor union leaders. The bill provides for the right of protest against arbitrary powers which have been exercised by some of the labor union leaders. Certainly it seems to me that if we are willing to accept the principle that employees are entitled to the same protection against labor union leaders as against employers, then I can see no reasonable objection to the amendment * * *.' 93 Cong.Rec. 4023, II Leg.Hist. 1028. (Emphasis added.) When Senator Pepper replied that Senator Taft was overlooking 'the fact that the workers elect their own officers, whereas they do not elect their employers'—precisely the fact that the Court points to in finding the parallel between unions and employers inapplicable—Senator Taft replied:
54
'I think it is fair to say that in the case of many of the unions, the employee has a good deal more of an opportunity to select his employer than he has to select his labor-union leader; and even if he has that opportunity * * * the man who is elected may have been voted against by various of the employees who did not desire to have that particular man elected as the union leader. In such cases the very fact that they did vote against that man is often used later by the union as a means of coercing such employees, and in some cases the union expels them from the union or subjects them to treatment which interferes with their rights as American citizens.' 93 Cong.Rec. 4023, II Leg.Hist. 1028. (Emphasis added.)
55
And finally, when Senator Pepper charged that the 'amendment is an effort to protect the workers against their own leaders,'Senator Taft did not deny it.11 He clearly stated that the bill was designed to warn unions 'that they do not have the right to interfere with or coerce employees, either their own members or those outside their union.' 93 Cong.Rec. 4025, II Leg.Hist. 1032. (Emphasis added.)
56
It is true that the Senate sponsors of § 8(b)(1)(A) were primarily concerned with coercive organizational tactics of unions and that most of the examples of abuse referred to in the debates concerned threats of violence by unions against nonmember employees. But to say that § 8(b)(1)(A) covers only coercive organizational tactics, which the Court comes very close to doing, is to ignore much of the legislative history. It is clear that § 8(b)(1)(A) was intended to protect union as well as nonunion employees from coercive tactics of unions, and such protection would hardly be provided if the section applied only to organizational tactics. Also, it is clear that Congress was much more concerned with nonviolent economic coercion than with threats of physical violence. As Senator Ball, who introduced the section, put it: 'But we are less concerned here with actual acts of violence than we are with threats * * *.'12 And Senator Taft noted: 'There are plenty of methods of coercion short of actual physical violence.'13 Examples were given of cases where unions threatened to double the dues of employees who waited until later to join.14 It is difficult to see how fining a member is less coercive than doubling his dues, or how the one is 'within the ambit of internal union affairs' and the other is not. After the bill was passed, in commenting on some of the abuses it was designed to correct, Senator Wiley said there are 'instances in which unions * * * have imposed fines upon their members up to $20,000 because they crossed picket lines—dared to go to the place of employment.'15 Twice during the debate, Senator Taft emphatically stated that the section guarantees employees who wished to work during a strike the right to so.16 Though on neither occasion did he expressly limit his examples to organizational strikes, the Court reads them as having such a limited reference.17 Once again the Court utilizes ambiguous, extemporaneous legislative comments to circumvent the unambiguous language of a carefully drafted statute. Congress certainly knew how to limit expressly the applicability of the section to organizational coercion, if it intended to do so.18
57
The Court finds the strongest support for its position in statements of Senator Ball when he accepted the proviso proposed by Senator Holland. When Senator Holland observed, 'Apparently it is not intended by the sponsors of the amendment to affect at least that part of the internal administration which has to do with the admission or the expulsion of members,'19 Senator Ball repied, 'It was never the intention of the sponsors of the pending amendment to interfere with the internal affairs or organization of unions.'20 From this statement by Senator Ball accepting the proviso the Court unjustifiably implies an intent to broaden it. First, there is no reason to suppose that Senator Ball was referring to any 'part' of internal affairs other than that to which Senator Holland had referred. Second, the sponsors of the section repeatedly announced that it would protect union members from their leaders, and that protection would be impossible if the section did not to some extent interfere with the internal affairs of unions. As Senator Wiley said, 'None of these provisions interferes unduly with union affairs, except to the extent necessary to protect the individual rights of employees.'21 Third, the Court recognizes—without holding—that the section may protect union members from 'arbitrary' action of union leaders. However, it is difficult to understand how the arbitrariness or nonarbitrariness of a fine determines whether it is within the scope of 'internal union affairs.'22
58
What the Court does today is to write a new proviso to § 8(b)(1)(A): 'this paragraph shall not impair the right of a labor organization nonarbitrarily to restrain or coerce its members in their exercise of § 7 rights.' Nothing in the legislative history supports the creation of this new proviso.
IV.
59
The Court seeks further support for its holding by reference to the fact that the 1959 Landrum-Griffin amendments were 'thought to be the first comprehensive regulation by Congress of the conduct of internal union affairs.' And the Court thinks that to construe § 8(b)(1)(A) according to its literal language to prohibit fines 'is to say that Congress preceded the Landrum-Griffin amendments with an even more pervasive regulation of the internal affairs of unions.'23
60
But again the Court fails to distinguish between court-enforced fines and fines enforced by the traditional method of expulsion. Although both kinds of fines are coercive, I have already indicated that the proviso to § 8(b)(1)(A) may preserve the union's right to impose fines which are enforceable only by expulsion and that expulsion was the common mode of enforcing fines at the time the section was adopted. If one assumes that the only fines prohibited by the section are court-enforced fines, then the section was not a pervasive regulation of union internal affairs. If court enforcement of fines is within the ambit of internal union affairs, which I doubt, then those affairs were only incidentally regulated by a flat prohibition of this seldom-used method of union discipline. If the common forms of union discipline—expulsion and fines enforceable by expulsion—were not prohibited or regulated by Taft-Hartley, then Landrum-Griffin was indeed the first comprehensive regulation of them.
V.
61
The union here had a union security clause in its contract with Allis-Chalmers. That clause made it necessary for all employees, including the ones involved here, to pay dues and fees to the union. But § 8(a)(3) and § 8(b)(2) make it clear that 'Congress intended to prevent utilization of union security agreements for any urpose other than to compel payment of union dues and fees.' Radio Officers' Union, etc. v. National Labor Relations Board, 347 U.S. 17, 41, 74 S.Ct. 323, 336, 98 L.Ed. 455. If the union uses the union security clause to compel employees to pay dues, characterizes such employees as members, and then uses such membership as a basis for imposing court-enforced fines upon those employees unwilling to participate in a union strike, then the union security clause is being used for a purpose other than 'to compel payment of union dues and fees.' It is being used to coerce employees to join in union activity in violation of § 8(b)(2).
62
The Court suggests that this problem is not present here, because the fined employees failed to prove they enjoyed other than full union membership, that their role in the union was not in fact limited to the obligation of paying dues. For several reasons, I am unable to agree with the Court's approach. Few employees forced to become 'members' of the union by virtue of the union security clause will be aware of the fact that they must somehow 'limit' their membership to avoid the union's court-enforced fines. Even those who are brash enough to attempt to do so may be unfamiliar with how to do it. Must they refrain from doing anything but paying dues, or will signing the routine union pledge still leave them with less than full membership? And finally, it is clear that what restrains the employee from going to work during a union strike is the union's threat that it will fine him and collect the fine from him in court. How many employees in a union shop whose names appear on the union's membership rolls will be willing to ignore that threat in the hope that they will later be able to convince the Labor Board or the state court that they were not full members of the union? By refusing to decide whether § 8(b)(1)(A) prohibits the union from fining an employee who does nothing more than pay union dues as a condition to retaining his job in a union shop, the Court adds coercive impetus to the union's threat of fines. Today's decision makes it highly dangerous for an employee in a union shop to exercise his § 7 right to refrain from participating in a strike called by a union in which he is a member in name only.
VI.
63
The National Labor Relations Act, as originally passed and amendmed from time to time, is the work product of draftsmen skilled by long experience in labor affairs. These draftsmen thoroughly understood labor legislation terminology, especially the oft-used words 'restrain or coerce.' Sections 7 and 8 together bespeak a strong purpose of Congress to leave workers wholly free to determine in what concerted labor activities they will engage or decline to engage. This freedom of workers to go their own way in this field, completely unhampered by pressures of employers or unions, is and always has been a basic purpose of the labor legislation now under consideration. In my judgment it ill behooves this Court to strike so diligently to defeat this unequivocally declared purpose of Congress, merely because the Court believes that too much freedom of choice for workers will impair the effective power of unions. Cf. Vaca v. Sips, 386 U.S. 171, 203, 87 S.Ct. 903, 923, 17 L.Ed.2d 842 (dissenting opinion). A court-enforced fine is certainly coercive, certainly affects the employee's job, and certainly is not a traditional method of internal union discipline. When applied by a union to an employee who has joined it as a condition of obtaining employment in a union shop, it defeats the provisions of the Act designed to prevent union security clauses from being used for purposes other than to compel payment of dues. In such a situation it cannot be justified on any theory that the employee has contracted away or waived his § 7 rights.
64
Where there is clear legislative history to justify it, courts often decline to follow the literal meaning of a statute. But this practice is fraught with dangers when the legislative history is at best brief, inconclusive, and ambiguous. This is precisely such a case, and I dissent because I am convinced that the Court has ignored the literal language of § 8(b)(1)(A) in order to give unions a power which the Court, but not Congress, thinks they need.
1
The relevant prvi sions of §§ 7 and 8(b)(1)(A), 61 Stat. 140, 141, 29 U.S.C. §§ 157 and 158(b)(1)(A), are
'Sec. 7. Employees shall have the right to * * * engage in * * * concerted activities * * *, and shall also have the right to refrain from any or all such activities * * *.'
'Sec. 8(b). It shall be an unfair labor practice for a labor organization or its agents—
'(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein * * *.'
2
Two locals were involved, Local 248 at the West Allis plant, and Local 401 at the La Crosse plant. Although Allis-Chalmers' charges of unfair labor practices mentioned threats of fines as well as imposition of fines, the only proof that fines were specifically threatened during a strike consisted of a letter to strikebreaking West Allis members of Local 248 in 1959. As to the 1962 strike at West Allis and both the 1959 and 1962 strikes at La Crosse, mention of fines first occurred after the strikes were over. The threat of court enforcement of the fines was first made in 1960 in letters sent to fined members of Local 248 who had not paid their fines; the letter informed them of the outcome of a Wisconsin Supreme Court opinion holding fines enforceable, UAW, Local 756 v. Woychik, 5 Wis.2d 528, 93 N.W.2d 336 (1958). Local 401's test suit was brought after the 1962 strike.
3
See J.I. Case Co. v. National Labor Relations Board, 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762; Medo Photo Supply Corp. v. National Labor Relations Board, 321 U.S. 678, 64 S.Ct. 830, 88 L.Ed. 1007; ILGWU v. National Labor Relations Board, 366 U.S. 731, 737, 81 S.Ct. 1603, 6 L.Ed.2d 762.
4
See Mastro Plastics Corp. v. National Labor Relations Board, 350 U.S. 270, 280, 76 S.Ct. 349, 356, 100 L.Ed. 309.
5
See National Labor Relations Board v. Rockaway News Supply Co., 345 U.S. 71, 73 S.Ct. 519, 97 L.Ed. 832.
6
Wellington Union Democracy and Fair Representation: Federal Responsibility in a Federal System, 67 Yale L.J. 1327, 1333 (1958).
7
See, e.g., Summers, Legal Limitations on Union Discipline, 64 Harv.L.Rev. 1049 (1951); Philip Taft, The Structure and Government of Labor Unions 117—180 (1954); Taylor, The Role of Unions in a Democratic Society, Selected Readings on Government Regulation of Internal Union Affairs Affecting the Rights of Members, prepared for the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare 17 (Committee Print, 85th Cong., 2d Sess., 1958) (hereafter Selected Readings); Kerr, Unions and Union Leaders of Their Own Choosing, Selected Readings, supra, at 106, 109.
8
Summers, supra, n. 7, at 1049.
'Strikebreaking in uniformly considered sufficient reason for expulsion whether or not there is an express prohibition, for it undercuts the union's principal weapon and defeats the economic objective for which the union exists.' Summers, Disciplinary Powers of Unions, 3 Ind. & Lab. Rel.Rev. 483, 495 (1950).
9
National Industrial Conference Board, The Union, The Leader, and The Members, Selected Readings, at 40, 69—71; Summers, Disciplinary Powers of Unions, 3 Ind. & Lab.Rel.Rev. 483, 508—512 (1950); Disciplinary Powers and Procedures in Union Constitutions, U.S. Dept. of Labor Bulletin No. 1350, Bur.Lab. Statistics (1963).
It is suggested that while such provisions for fines and expulsion were a common element of union constitutions at the time of the enactment of § 8(b) (1), such background loses its cogency here because such provisions did not explicitly call for court enforcement. However the potental ity of resort to courts for enforcement is implicit in any binding obligation. Surely it cannot be said that the absence of a 'court enforceability' clause in a contract of sale implies that the parties do not foresee resort to the courts as a possible means of enforcement. It is also suggested that court enforcement of fines is 'a rather recent innovation.' Yet such enforcement was known as early as 1867. Master Stevedores' Assn. v. Walsh, 2 Daly 1 (N.Y.).
10
Summers, The Law of Union Discipline: What the Courts Do in Fact, 10 Yale L.J. 175, 180 (1960).
11
See generally Chafee, The Internal Affairs of Associations Not for Profit, 43 Harv.L.Rev. 993 (1930); Note, Judicial Control of Actions of Private Associations, 76 Harv.L.Rev. 983 (1963); Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959, 58 Mich.L.Rev. 819, 835—836 (1960).
12
'Since the union's effectiveness is based largely on the degree to which it controls the available labor, expulsions tend to weaken the union. If large numbers are expelled, they become a threat to union standards by undercutting union rates, and in case of a strike they may act as strikebreakers. * * * Therefore, expulsions must be limited to very small numbers unless the union is so strongly entrenched that it cannot be effectively challenged by the employer or another union.' Summers, Disciplinary Powers of Unions, 3 Ind. & Lab.Rel.Rev. 483, 487—488 (1950).
13
93 Cong.Rec. 4193, II Leg.Hist. 1097.
14
93 Cong.Rec. 4016—4017, II Leg.Hist. 1018—1021. Examples were given in debate of threats by unions to double the dues of employees who waited until later to join. It is suggested that this is no less within the ambit of internal union affairs than the fines imposed in the present case. But the significant distinction is that the cited examples necessarily concern threats against nonmembers designed to coerce them into joining, and are therefore further evidence of the primary concern of Congress with organizational tactics.
15
93 Cong.Rec. 4271, 4432, 4434, II Leg.Hist. 1139, 1199, 1203.
16
93 Cong.Rec. A—2252, II Leg.Hist. 1524—1525.
17
93 Cong.Rec. 4272, II Leg.Hist. 1141.
18
93 Cong.Rec. 4433, II Leg.Hist. 1200.
19
93 Cong.Rec. 4435, II Leg.Hist. 1204.
20
93 Cong.Rec. 4021—4022, II Leg.Hist. 1025—1027.
21
93 Cong.Rec. 4023, II Leg.Hist. 1028.
See Summers, Disciplinary Powers of Unions, 3 Ind. & Lab.Rel.Rev. 483:
'It is significant that among the major changes made in the Wagner Act by the Labor Management Relations Act of 1947 was the addition of sections purported to be aimed at protecting individual union members against undemocratic and corrupt leaders.'
22
93 Cong.Rec. 4023, II Leg.Hist. 1028.
23
93 Cong.Rec. 4024, II Leg.Hist. 1030. It was in the context of the quoted limiting statements that, in answer to Senator Ives' suggestion that the matter of union coercion should be further investigated, Senator Taft made the broad remark that '(m)erely to require that unions be subject to the same rules that govern employers, and that they do not have the right to interfere with or coerce employees, either their own members or those outside their union, is such a clear matter, and seems to me so easy to determine, that I would hope we would all agree.' 93 Cong.Rec. 4025, II Leg.Hist. 1032.
24
93 Cong.Rec. 4023, 4024, II Leg.Hist. 1029, 1030. It is this colloquy to which the dissent apparently refers in its statement that in answer to Senator Pepper's charge that the amendment protected workers against their own leaders, 'Senator Taft did not deny it.' It may be more accurate to say that Senator Taft evaded the issue.
25
93 Cong.Rec. 4435—4436, II Leg.Hist. 1205—1206. The following statement of Senator Taft had no reference to the conduct of a union vis-a -vis a member who crossed the union's picket line but
referred to union conduct in preventing employees not in the bargaining unit from going to work—'mass picketing, which absolutely prevents all the office force from going into the office of a plant.'
'The effect of the pending amendment is that the Board may call the union before them, exactly as it has called the employer, and say, 'Here are th rules of the game. You must cease and desist from coercing and restraining the employees who want to work from going to work and earning the money which they are entitled to earn.' The Board may say, 'You can persuade them; you can put up signs; you can conduct any form of propaganda you want to in order to persuade them, but you cannot, by threat of force or threat of economic reprisal, prevent them from exercising their right to work.' As I see it, that is the effect of the amendment.' 93 Cong.Rec. 4436, II Leg.Hist. 1206.
His statements in a colloquy with Senator Morse were made in the same context. 93 Cong.Rec. 4436, II Leg.Hist. 1207. We read his 'up plementary Analysis of Labor Bill as Passed' as also referring to coercion of nonmembers of the striking bargaining unit. 93 Cong.Rec. 6859, II Leg.Hist. 1623. That he distinguished members from nonmembers also appears from his statement concerning the section that '(i)ts application to labor organizations may have a slightly different implication, but it seems to me perfectly clear that from the point of view of the employee the two cases are parallel.' 93 Cong.Rec. 4023, II Leg.Hist. 1028. (Emphasis supplied.)
It is not true that 'the sponsors of the section repeatedly announced that it would protect union members from their leaders.' Only Senator Taft's statements provide limited support for the proposition.
26
S.Rep. No. 105, 80th Cong., 1st Sess., 50, I Leg.Hist. 456; 93 Cong.Rec. 4025, 4436, II Leg.Hist. 1032, 1207.
27
Cf. statement of Justice Stone in South Carolina State Hwy. Dept. v. Barnwell Bros., 303 U.S. 177, 184—185, n. 2, 58 S.Ct. 510, 513, 82 L.Ed. 734:
'State regulations affecting interstate commerce, whose purpose or effect is to gain for those within the state an advantage at the expense of those without, or to burden those out of the state without any corresponding advantage to those within, have been thought to impinge upon the constitutional prohibition even though Congress has not acted. (Citations omitted.)
'Underlying the stated rule has been the thought, often expressed in judicial opinion, that when the regulation if of such a character that its burden falls principally cipally upon those without the state, legislative action is not likely to be subjected to those political restraints which are normally exerted on legislation where it affects adversely some interests within the state.' (Emphasis supplied.)
A commentator has noted that 'the ballot in a free election is the individual union member's weapon for inducing performance in accordance with his desire.' Wellington, Union Democracy and Fair Representation: Federal Responsibility in a Federal System, 67 Yale L.J. 1327, 1329 (1958).
28
93 Cong.Rec. 4272, 4433, II Leg.Hist. 1141, 1200.
29
Our conclusion that § 8(b)(1)(A) does not prohibit the locals' actions makes it unnecessary to pass on the Board holding that the proviso protected such actions.
30
The notification by Local 248 to its strikebreaking employees that each day they continued to work might constitute a separate offense punishable by a fine of $100 was sent only to members of Local 248, not those of Local 401, and only during one of the two strikes called by Local 248. The notification was sent only to those employees who had already decided to work during the strike. Most important, no inference can be drawn from that notification that court enforcement would be the means of collection. Therefore, at least under the proviso, if not the body of § 8(b)(1), such notification would not be an unfair labor practice. It is not argued that the fines for which court enforcement was actually sought were unreasonably large.
31
Senator Wiley's reference in a speech after § 8(b)(1) was passed to $20,000 fines for crossing a picket line was not directed to the section. 93 Cong.Rec. 5000, II Leg.Hist. 1471.
32
It has been noted that the state courts, in reviewing the imposition of union discipline, find ways to strike down 'discipline, (which) involves a severe hardship.' Summers, Legal Limitations on Union Discipline, 64 Harv.L.Rev. 1049, 1078 (1951).
It is suggested that reading § 8(b)(1) to allow court enforcement of fines adds a 'new weapon to the union's economic arsenal,' and is inconsistent with the mood of Congress to curtail the powers of unions. The question here, however, is not whether Congress gave to unions a new power, but whether it eliminated, without debate, a power which the unions already possessed.
33
In 1958, in International Association of Machinests v. Gonzales, 356 U.S. 617, 620, 78 S.Ct. 923, 925, 2 L.Ed.2d 1018, we said:
'(T)he protection of union members in their rights as members from arbitrary conduct by unions and union officers has not been undertaken by federal law, and indeed the assertion of any such power has been expressly denied.'
See Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959, 58 Mich.L.Rev. 819, 852:
'The act is the first major step in the regulation of the internal affairs of labor unions. It expands the national labor policy into the area of relations between the employees and the labor union. Previously national policy was confined to relationships between management and union.'
34
93 Cong.Rec. 4023, II Leg.Hist. 1028.
35
29 U.S.C. §§ 411—415, 431(c), 461—464, 481—482. Significantly, the Landrum-Griffin amendments expressly rendered it unlawful for any union 'to fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled * * *' under that Act. 29 U.S.C. § 529.
36
In International Association of Machinists v. Street, we held that employees who were members of a union under a union security agreement authorized by the Railway Labor Act, had a right to relief against a union using their dues payments for political purposes. We said, at 774, 81 S.Ct., at 1803:
'Any remedies, however, would properly be granted only to employees who have made known to the union officials that they do not desire their funds to be used for political causes to which they object. The safeguards of (the Act) * * * were added for the protection of dissenters' interest, but dissent is not to be presumed—it must affirmatively be made known to the union by the dissenting employee. * * * Thus we think that only those who have identified themselves as opposed to political uses of their funds are entitled to relief in this action.'
37
Under § 8(a)(3) the extent of an employee's obligation under a union security agreement is 'expressly limited to the payment of initiation fees and monthly dues. * * * 'Membership' as a condition of employment is whittled down to its financial core.' National Labor Relations Board v. General Motors Corp., 373 U.S. 734, 742, 83 S.Ct. 1453, 1459, 10 L.Ed.2d 670.
Not before us is the question of the extent to which union action for enforcement of disciplinary penalties is pre-empted by federal labor law. Compare International Association of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018. Local 100, United Ass'n of Journeymen & Apprentices v. Borden, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638.
1
Those members of the Senate who opposed § 8(b)(1)(A) shared the Court's concern that it would impair the effectiveness of strikes. To that concern, Senator Taft replied:
'I can see nothing in the pending measure which * * * would in some way outlaw strikes. It would outlaw threats against employees. It would not outlaw anybody striking who wanted to strike. It would not prevent anyone using the strike in a legitimate way * * *. All it would do would be to outlaw such restraint and coercion as would prevent people from going to work if they wished to go to work.' 93 Cong.Rec. 4436, II Leg.Hist. 1207.
2
See generally Comment, 115 U.Pa.L.Rev. 47 (1966); 80 Harv.L.Rev. 683 (1967).
3
These authorities are cited at n. 9 of the Court's opinion. One of them notes that the union's 'discipline power has its own practical limitations' simply because the union' sultimate sanction at that time was limited to expulsion. Summers, Disciplinary Powers of Unions, 3 Ind. & Lab.Rel.Rev. 483, 487 (1950). That practical limitation is today removed by the Court's hidling.
4
See, e.g., NLRB v. Bell Aircraft Corp., 2 Cir., 206 F.2d 235 (collective bargaining agreement between employer and union provided that employer could not promote employee who had disciplinary charges pending against him by union).
5
See, e.g., Associated Home Builders of Greater Green Bay, 145 N.L.R.B. 1775, remanded on other grounds, 9 Cir., 352 F.2d 745.
6
'The contract of membership is * * * a legal fabrication * * *. What are the terms of the contract? The constitutional provisions, particularly those governing discipline, are so notoriously vague that they fall far short of the certainty ordinarily required of a contract. The member has no choice as to terms but is compelled to adhere to the inflexible ones presented. Even then, the union is not bound, for it retains the unlimited power to amend any term at any time. * * * In short, membership is a special relationship. It is as far removed from the main channel of contract law as the relationships created by marriage * * *.' Summers, Legal Limitations on Union Discipline, 64 Harv.L.Rev. 1049, 1055—1056 (1951).
7
Although the Court states that Congress was operating within the context of the 'contract theory,' I have been unable to find any reference to this theory in the legislative history, even by the opponents to curtailing union power. When Senator Pepper suggested that the section should not apply to union members because they elect their own leaders, Senator Taft rejected that premise as a frequent fiction. See p. 210, infra.
8
Congress was, indeed, primarily concerned with the kind of coercion state courts were unable to cope with. 93 Cong.Rec. 4016, 4024, II Leg.Hist. 1018, 1031.
9
93 Cong.Rec. 4021, II Leg.Hist. 1025. See generally 93 Cong.Rec. 4432—4436, II Leg.Hist. 1199—1207.
10
93 Cong.Rec. 4016, II Leg.Hist. 1018; 93 Cong.Rec. 4021, II Leg.Hist. 1025; 93 Cong.Rec. 4023, II Leg.Hist. 1028.
11
93 Cong.Rec. 4023, II Leg.Hist. 1029. Senator Taft merely responded that the section protects nonunion employees as well as union members.
12
93 Cong.Rec. 4017, II Leg.Hist. 1020.
13
93 Cong.Rec. 4024, II Leg.Hist. 1031.
14
93 Cong.Rec. 4017, II Leg.Hist. 1020; 93 Cong.Rec. 4433, II Leg.Hist. 1200.
15
93 Cong.Rec. 5000, II Leg.Hist. 1471.
16
See n. 1, supra; statement by Senator Taft quoted in n. 25 of the Court's opinion.
17
See n. 25 of the Court's opinion.
18
See, e.g., § 8(b)(4)(B).
19
93 Cong.Rec. 4271, II Leg.Hist. 1139 (emphasis added).
20
93 Cong.Rec. 4272, II Leg.Hist. 1141.
21
93 Cong.Rec. 5001, II Leg.Hist. 1472 (emphasis added).
22
The NLRB has itself recognized that a union 'fine is by nature coercive.' In Local 138, Operating Engineers, 148 N.L.R.B. 679, and H. B. Roberts, Business Manager of Local 925, Operating Engineers, 148 N.L.R.B. 674, enforced, 121 U.S.App.D.C. 297, 350 F.2d 427, the Board held § 8(b)(1)(A) prohibited a union from fining members who violated an internal union rule against filing charges with the NLRB. The Board concluded that 'the imposition of a fine by a labor organization upon a member who fils charges with the Board does restrain and coerce that member in the exercise files charges with the Board does restrain union's conduct is no less coercive where the filing of the charge is alleged to be in conflict with an internal union rule or policy and the fine is imposed allegedly to enforce that internal policy.' Local 138, 148 N.L.R.B., at 682. In the present case, the Board distinguished Local 138 and Roberts on the ground that the union rules involved there were 'beyond the competence of the union to enforce' and were 'not the legitimate concern of a union.' 149 N.L.R.B. 67, 69. My Brother WHITE seems to take a similar position in resting his concurrence on the Court's holding that the union rule against crossing a picket line is 'valid.' But neither Congress' aim in § 8(b)(1)(A) of proscribing certain means used to accomplish legitimate ends, nor the Court's view that Congress intended no interference with internal union affairs, would allow the application of the section to depend on the Board's or this Court's views of whether a particular internal union rule is 'valid' or not.
23
Although the Landrum-Griffin Act might be resorted to for the purpose of determining the limits of 'vague language' in the Taft-Hartley Act, it should not be used, as the Court here uses it, to deprive employees of rights unequivocally granted them by the earlier Act. Section 103 of the Landrum-Griffin Act, 73 Stat. 523 (1959), 29 U.S.C. § 413, expressly provides: 'Nothing contained in this title shall limit the rights and remedies of any member of a labor organization under any * * * Federal law * * *.'
| 67
|
388 U.S. 263
87 S.Ct. 1951
18 L.Ed.2d 1178
Jesse James GILBERT, Petitioner,v.STATE OF CALIFORNIA.
No. 223.
Argued Feb. 15 and 16, 1967.
Decided June 12, 1967.
Luke McKissack, Los Angeles, Cal., for petitioner.
Norman H. Sokolow and William E. James, Los Angeles, Cal., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This case was argued with United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and presents the same alleged constitutional error in the admission in evidence of in-court identifications there considered. In addition, petitioner alleges constitutional errors in the admission in evidence of testimony of some of the witnesses that they also identified him at the lineup, in the admission of handwriting exemplars taken from him after his arrest, and in the admission of out-of-court statements by King, a co-defendant, mentioning petitioner's part in the crimes, which statements, on the co-defendant's appeal decided with petitioner's, were held to have been improperly admitted against the codefendant. Finally, he alleges that his Fourth Amendment rights were violated by a police seizure of photographs of him from his locked apartment after entry without a search warrant, and the admission of testimony of witnesses that they identified him from those photographs within hours after the crime.
2
Petitioner was convicted in the Superior Court of California of the armed robbery of the Mutual Savings and Loan Association of Alhambra and the murder of a police officer who entered during the course of the robbery. There were separate guilt and penalty stages of the trial before the same jury, which rendered a guilty verdict and imposed the death penalty. The California Supreme Court affirmed, 63 Cal.2d 690, 47 Cal.Rptr. 909, 408 P.2d 365. We granted certiorari, 384 U.S. 985, 86 S.Ct. 1902, 16 L.Ed.2d 1003, and set the case for argument with Wade and with Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. If our holding today in Wade is applied to this case, the issue whether admission of the in-court and lineup identifications is constitutional error which requires a new trial could be resolved on this record only after further proceedings in the California courts. We must therefore first determine whether petitioner's other contentions warrant any greater relief.
I.
3
THE HANDWRITING EXEMPLARS.
4
Petitioner was arrested in Philadelphia by an FBI agent and refused to answer questions about the Alhambra robbery without the advice of counsel. He later did answer questions of another agent about some Philadelphia robberies in which the robber used a handwritten note demanding that money be handed over to him, and during that interrogation gave the agent the handwriting exemplars. They were admitted in evidence at trial over objection that they were obtained in violation of petitioner's Fifth and Sixth Amendment rights. The California Supreme Court upheld admission of the exemplars on the sole ground that petitioner had waived any rights that he might have had not to furnish them. '(The agent) did not tell Gilbert that the exemplars would not be used in any other investigation. Thus, even if Gilbert believed that his exemplars would not be used in California, it does not appear that the authorities improperly induced such belief.' 63 Cal.2d, at 78, 47 Cal.Rptr., at 920, 408 P.2d, at 376. The court did not, therefore, decide petitioner's constitutional claims.
5
We pass the question of waiver since we conclude that the taking of the exemplars violated none of petitioner's constitutional rights.
6
First. The taking of the exemplars did not violate petitioner's Fifth Amendment privilege against self-incrimination. The privilege reaches only compulsion of '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,' and not 'compulsion which makes a suspect or accused the source of 'real or physical evidence' * * *.' Schmerber v. State of California, 384 U.S. 757, 763—764, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908. One's voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. United States v. Wade, supra, 388 U.S., at 222—223, 87 S.Ct., at 1929—1930. No claim is made that the content of the exemplars was testimonial or communicative matter. Cf. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746.
7
Second. The taking of the exemplars was not a 'critical' stage of the criminal proceedings entitling petitioner to the assistance of counsel. Putting aside the fact that the exemplars were taken before the indictment and appointment of counsel, there is minimal risk that the absence of counsel might derogate from his right to a fair trial. Cf. United States v. Wade, supra. If, for some reason, an unrepresentative exemplar is taken, this can be brought out and corrected through the adversary process at trial since the accused can make an unlimited number of additional exemplars for analysis and comparison by government and defense handwriting experts. Thus, 'the accused has the opportunity for a meaningful confrontation of the (State's) case at trial through the ordinary processes of cross-examination of the (State's) expert (handwriting) witnesses and the presentation of the evidence of his own (handwriting) experts.' United States v. Wade, supra, 388 U.S., at 227—228, 87 S.Ct., at 1932—1933.
II.
ADMISSION OF CO-DEFENDANT'S STATEMENTS.
8
Petitioner contends that he was denied due process of law by the admission during the guilt stage of the trial of his accomplice's pretrial statements to the police which referred to petitioner 159 times in the course of reciting petitioner's role in the robbery and murder. The statements were inadmissible hearsay as to petitioner, and were held on King's aspect of this appeal to be improperly obtained from him and therefore to be inadmissible against him under California law. 63 Cal.2d, at 699 701, 47 Cal.Rptr., at 914—915, 408 P.2d, at 370—371.
9
Petitioner would have us reconsider Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (where the Court held that appropriate instructions to the jury would suffice to prevent prejudice to a defendant from the references to him in a co-defendant's statement), at least as applied to a case, as here, where the co-defendant gained a reversal because of the improper admission of the statements. We have no occasion to pass upon this contention. The California Supreme Court has rejected the Delli Paoli rationale, and relying at least in part on the reasoning of the Delli Paoli dissent, regards cautionary instructions as inadequate to cure prejudice. People v. Aranda, 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265. The California court applied Aranda in this case but held that any error as to Gilbert in the admission of King's statements was harmless. The harmless-error standard applied was that, 'there is no reasonable possibility tha t he error in admitting King's statements and testimony might have contributed to Gilbert's conviction,' a standard derived by the court from our becision in Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171.1 Fahy was the basis of our holding in Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, and the standard applied by the California court satisfies the standard as defined in Chapman.
10
It may be that the California Supreme Court will review the application of its harmless-error standard to King's statements if on the remand the State presses harmless error also in the introduction of the in-court and lineup identifications. However, this at best implies an ultimate application of Aranda and only confirms that petitioner's argument for reconsideration of Delli Paoli need not be considered at this time.
III.
11
THE SEARCH-AND-SEIZURE CLAIM.
12
The California Supreme Court rejected Gilbert's challenge to the admission of certain photographs taken from his apartment pursuant to a warrantless search. The court justified the entry into the apartment under the circumstances on the basis of so-called 'hot pursuit' and 'exigent circumstances' exceptions to the warrant requirement. We granted certiorari to consider the important question of the extent to which such exceptions may permit warrantless searches without violation of the Fourth Amendment. A closer examination of the record than was possible when certiorari was granted reveals that the facts do not appear with sufficient clarity to enable us to decide that question. See Appendix to this opinion; compare Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782. We therefore vacate certiorari on this issue as improvidently granted. The Monrosa v. Carbon Black Export, Inc., 359 U.S. 180, 184, 79 S.Ct. 710, 713, 3 L.Ed.2d 723.
IV.
13
THE IN-COURT AND LINEUP IDENTIFICATIONS.
14
Since none of the petitioner's other contentions warrants relief, the issue becomes what relief is required by application to this case of the principles today announced in United States v. Wade, supra.
15
Three eyewitnesses to the Alhambra crimes who identified Gilbert at the guilt stage of the trial had observed him at a lineup conducted without notice to his counsel in a Los Angeles auditorium 16 days after his indictment and after appointment of counsel. The manager of the apartment house in which incriminating evidence was found, and in which Gilbert allegedly resided, identified Gilbert in the courtroom and also testified, in substance, to her prior lineup identification on examination by the State. Eight witnesses who identified him in the courtroom at the penalty stage were not eyewitnesses to the Alhambra crimes but to other robberies allegedly committed by him. In addition to their in-court identifications, these witnesses also testified that they identified Gilbert at the same lineup.
16
The line-up was on a stage behind-bright lights which prevented those in the line from seeing the audience. Upwards of 100 persons were in the audience, each an eyewitness to one of the several robberies charged to Gilbert. The record is otherwise virtually silent as to what occurred at the lineup.2
17
At the guilt stage, after the first witness, a cashier of the savings and loan association, identified Gilbert in the courtroom, defense counsel moved, out of the presence of the jury, to strike her testimony on the ground that she identified Gilbert at the pretrial lineup conducted in the absence of counsel in violation of the Sixth Amendment made applicable to the States by the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. He requested a hearing outside the presence of the jury to present evidence supporting his claim that her in-court identification was, and others to be elicited by the State from other eyewitnesses would be, 'predicated at least in large part upon their identification or purported identification of Mr. Gilbert at the showup. * * *' The trial judge denied the motion as premature. Defense counsel then elicited the fact of the cashier's lineup identification on cross-examination and again moved to strike her identification testimony. Without passing on the merits of the Sixth Amendment claim, the trial judge denied the motion on the ground that, assuming a violation, it would not in any event entitle Gilbert to suppression of the in-court identification. Defense counsel thereafter elicited the fact of lineup identifications from two other eyewitnesses who on direct examination identified Gilbert in the courtroom. Defense counsel unsuccessfully objected at the penalty stage, to the testimony of the eight witnesses to the other robberies that they identified Gilbert at the lineup.
18
The admission of the in-court identifications without first determining that they were not tainted by the illegal lineup but were of independent origin was constitutional error. United States v. Wade, supra. We there held that a post-indictment pretrial lineup at which the accused is exhibited to identifying witnesses is a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of his counsel denies the accused his Sixth Amendment right to counsel and calls in question the admissibility at trial of the in-court identifications of the accused by witnesses who attended the lineup. However, as in Wade, the record does not pemi t an informed judgment whether the in-court identifications at the two stages of the trial had an independent source. Gilbert is therefore entitled only to a vacation of his conviction pending the holding of such proceedings as the California Supreme Court may deem appropriate to afford the State the opportunity to establish that the incourt identifications had an independent source, or that their introduction in evidence was in any event harmless error.
19
Quite different considerations are involved as to the admission of the testimony of the manager of the apartment house at the guilt phase and of the eight witnesses at the penalty stage that they identified Gilbert at the lineup.3 That testimony is the direct result of the illegal lineup 'come at by exploitation of (the primary) illegality.' Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441. The State is therefore not entitled to an opportunity to show that that testimony had an independent source. Only a per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused's constitutional right to the presence of his counsel at the critical lineup. In the absence of legislative regulations adequate to avoid the hazards to a fair trial which inhere in lineups as presently conducted, the desirability of deterring the constitutionally objectionable practice must prevail over the undesirability of excluding relevant evidence. Cf. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. That conclusion is buttressed by the consideration that the witness' testimony of his lineup identification will enhance the impact of his in-court identification on the jury and seriously aggravate whatever derogation exists of the accused's right to a fair trial. Therefore, unless the California Supreme Court is 'able to declare a belief that it was harmless beyond a reasonable doubt,' Chapman v. State of California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, Gilbert will be entitled on remand to a new trial or, if no prejudicial error is found on the guilt stage but only in the penalty stage, to whatever relief California law affords where the penalty stage must be set aside.
20
The judgment of the California Supreme Court and the conviction are vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion. It is so ordered.
21
Judgment and conviction vacated and case remanded with directions.
22
THE CHIEF JUSTICE joins this opinion except for Part III, from which he dissents for the reasons expressed in the opinion of Mr. Justice DOUGLAS.
APPENDIX TO OPINION OF THE COURT
23
Photographs of Gilbert introduced at the guilt stage of the trial had been viewed by eyewitnesses within hours after the robbery and murder. Officers had entered his apartment without a warrant and found them in an envelope on the top of a bedroom dresser. The envelope was of the kind customarily used in delivering developed prints, with the words 'Marlboro Photo Studio' imprinted on it. The officers entered the apartment because of information given by an accomplice which led them to believe that one of the suspects might be inside the apartment. Assuming that the warrantless entry into the apartment was justified by the need immediately to search for the suspect, the issue remains whether the subsequent search was reasonably supported by those same exigent circumstances. If the envelope were come upon in the course of a search for the suspect, the answer might be different from that where it is come upon, even though in plain view, in the course of a general, indiscriminate search of closets, dressers, etc., after it is known that the occupant is absent. Still different considerations may be presented where officers, pursuing the suspect, find he is absent from the apartment but conduct a limited search for suspicious objects in plain view which might aid in the pursuit. The problem with the record in the present case is that it could reasonably support any of these factual conclusions upon which our constitutional analysis should rest, and the trial court made no findings on the scope of search. The California Supreme Court, which had no more substantial basis upon which to resolve the conflict than this Court, stated that the photos were come upon 'while the officers were looking through the apartment for their suspect. * * *' As will appear, a contrary conclusion is equally reasonable.
24
(1) Agent schlatter testified that immediately upon entering the apartment which he put at 'approximately 1:05,' the officers made a quick search for the occupant, which took at most a minute, and that the continued presence of the officers became 'a matter of a stake-out under the assumption that the person or persons involved would come back.' He testified that the officer who found the photographs, Agent Crowley, had entered the apartment with him. Agent Schlatter's testimony might support the California Supreme Court's view of the scope of search; (2) Agent Crowley testified that he arrived within five minutes after Agent Schlatter, 'around 1:30, give or take a few minutes either way,' that the apartment had already been searched for the suspects, and that he was instructed 'to look through the apartment for anything we could find that we could use to identify or continue the pursuit of this person without conducting a detailed search.' Crowley's further testimony was that the search pursuant to which the photos were found, was limited in this manner, and that he merely inspected objects in plain sight which would aid in identification. He stated that a detailed search for guns and money was not conducted until after a warrant had issued over three hours later. (3) Agent Townsend said he arrived at the apartment 'sometime between perhaps 1:30 and 2:00,' and that 'well within an hour' he, Agent Crowley, another agent and a local officer conducted a detailed search of the bedroom H e stated that they 'looked through the bedroom closet and dresser and I think * * * the headstand.' A substantial sum of money was found in the dresser. Townsend could not 'specifically say' whether Crowley was in the bedroom at the time the money was found. This testimony might support a finding that the officers were engaged in a general search of the bedroom at the time the photos were found.
25
The testimony of the agents concerning their time of arrival in the partment is not inconsistent with any of the three possible conclusions as to the scope of search. Taking Townsend's testimony together with Crowley's, it can be concluded that the two arrived at about the same time. Agent Schlatter's testimony that Crowley arrived with him at 1:05, however, supports a conclusion that Crowley had begun his activities before Townsend arrived. Then there is the testimony of Agent Kiel, who did not enter the apartment, that he obtained the photos while talking with the landlady 'approximately 1:25 to 1:30,' about the same time that both Crowley and Townsend testified they arrived. In sum, the testimony concerning the timing of the events surrounding that search is both approximate and itself contradictory.
26
Mr. Justice BLACK, concurring in part and dissenting in part.
27
Petitioner was convicted of robbery and murder partially on the basis of handwriting samples he had given to the police while he was in custody without counsel and partially on evidence that he had been identified by eyewitnesses at a lineup identification ceremony held by California officers in a Los Angeles auditorium without notice to his counsel. The Court's opinion shows that the officers took Gilbert to the auditorium while he was a prisoner, formed a lineup of Gilbert and other persons, required each one to step forward, asked them certain questions, and required them to repeat certain phrases, while eyewitnesses to this and other crimes looked at them in efforts to identify them as the criminals. At his trial, Gilbert objected to the handwriting samples and to the identification testimony given by witnesses who saw him at the auditorium lineup on the ground that the admission of this evidence would violate his Fifth Amendment privilege against self-incrimination and Sixth Amendment right to counsel. It is well-established now that the Fourteenth Amendment makes both the Self-Incrimination Clause of the Fifth Amendment and the Right to Counsel Clause of the Sixth Amendment obligatory on the States. See, e.g., Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.
I.
28
(a) Relying on Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, the Court rejects Gilbert's Fifth Amendment contention as to both the handwriting exemplars and the lineup identification. I dissent from that holding. For reasons set out in my separate opinion in United States v. Wade, 388 U.S., p. 243, 87 S.Ct., p. 1941, as well as in my dissent to Schmerber, 384 U.S., at 773, 86 S.Ct., at 1837, I think that case wholly unjustifiably detracts from the protection against compelled self-incrimination the Fifth Amendment was designed to afford. It rests on the ground that compelling a suspect to submit to or engage in conduct the sole purpose of which is to supply evidence against himself nonetheless does not compel him tobe a witness against himself. Compelling a suspect or an accused to be 'the source of 'real or physical evidence' * * * ,' so says Schmerber, 384 U.S., at 764, 86 S.Ct., at 1832, is not compelling him to be a witness against himself. Such an artificial distinction between things that are in reality the same is in my judgment wholly out of line with the liberal construction which should always be given to the Bill of Rights. See Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746.
29
(b) The Court rejects Gilbert's right-to-counsel contention in connection with the handwriting exemplars on the ground that the taking of the exemplars 'was not a 'critical' stage of the criminal proceedings entitling petitioner to the assistance of counsel.' In all reality, however, it was one of the most 'critical' stages of the government proceedings that ended in Gilbert's conviction. As to both the State's case and Gilbert's defense, the handwriting exemplars were just as important as the lineup and perhaps more so, for handwriting analysis, being, as the Court notes, 'scientific' and 'systematized,' United States v. Wade, 388 U.S., at 227, 87 S.Ct., at 1932, may carry much more weight with the jury than any kind of lineup identification. The Court, however, suggests that absence of counsel when handwriting exemplars are obtained will not impair the right of cross-examination at trial. But just as nothing said in our previous opinions 'links the right to counsel only to protection of Fifth Amendment rights,' United States v. Wade, ante, 388 U.S., at 226, 87 S.Ct., at 1932, nothing has been said which justifies linking the right to counsel only to the protection of other Sixth Amendment rights. And there is nothing in the Constitution to justify considering the right to counsel as a secondclass, subsidiary right which attaches only when the Court deems other specific rights in jeopardy. The real basis for the Court's holding that the stage of obtaining hadwriting exemplars is not 'critical,' is its statement that 'there is minimal risk that the absence of counsel might derogate from his right to a fair trial.' The Court considers the 'right to a fair trial' to be the overriding 'aim of the right to counsel,' United States v. Wade, at 226, 87 S.Ct., at 1932, and somehow believes that this Court has the power to balance away the constitutional guarantee of right to counsel when the Court believes it unnecessary to provide what the Court considers a 'fair trial.' But I think this Court lacks constitutional power thus to balance away a defendant's absolute right to counsel which the Sixth and Fourteenth Amendments guarantee him. The Framers did not declare in the Sixth Amendment that a defendant is entitled to a 'fair trial,' nor that he is entitled to counsel on the condition that this Court thinks there is more than a 'minimal risk' that without a lawyer his trial will be 'unfair.' The Sixth Amendment settled that a trial without a lawyer is constitutionally unfair, unless the courtcreated balancing formula has somehow changed it. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, I thought finally established the right of an accused to counsel without balancing of any kind.
30
The Court's holding here illustrates the danger to Bill of Rights guarantees in the use of words like a 'fair trial' to take the place of the clearly specified safeguards of the Constitution. I think it far safer for constitutional rights for this Court to adhere to constitutional language like 'the accused shall * * * have the Assistance of Counsel for his defence' instead of substituting the words not mentioned, 'the accused shall have the assistance of counsel only if the Supreme Court thinks it necessary to assure a fair trial.' In my judgment the guarantees of the Constitution with its Bill of Rights provide the kind of 'fair trial' the Framers sought to protect. Gilbert was entitled to have the 'assst ance of counsel' when he was forced to supply evidence for the Government to use against him at his trial. I would reverse the case for this reason also.
II.
31
I agree with the Court that Gilbert's case should not be reversed for state error in admitting the pretrial statements of an accomplice which referred to Gilbert. But instead of squarely rejecting petitioner's reliance on the dissent in Delli Paoli v. United States, 352 U.S. 232, 246, 77 S.Ct. 294, 1 L.Ed.2d 278, the Court avoids the issue by pointing to the fact that the California Supreme Court, even assuming the error to be a federal constitutional one, applied a harmless-error test which measures up to the one we subsequently enunciated in Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. And the Court then goes on to suggest that the California Supreme Court may desire to reconsider whether that is so upon remand.
32
I think the Court should clearly indicate that neither Delli Paoli nor Chapman has any relevance here. Delli Paoli rested on the admissibility of evidence in federal, not state, courts. The introduction of evidence in state courts is exclusively governed by state law unless its introduction would violate some federal constitutional provision and there is no such federal provision here. See Spencer v. State of Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606. That being so, any error in admitting the accomplice's pretrial statements is only an error of state law, and Chapman, providing a federal constitutional harmless-error rule, has absolutely no relevance here. Instead of looking at the harmless-error test applied by the California Supreme Court in order to ascertain whether it comports with Chapman, I would make it clear that this Court is leaving to the States their unbridled power to control their own state courts in the absence of conflicting federal constitutional provisions.
III.
33
One witness who identified Gilbert at the guilt stage of his trial and eight witnesses who identified him at the penalty stage testified on direct examination that they had identified him in the auditorium lineup. I agree with the Court that the admission of this testimony was constitutional error and that Gilbert is entitled to a new trial unless the state courts, applying Chapman, conclude that this error was harmless. However, these witnesses also identified Gilbert in the courtroom and two other witnesses at the guilt stage identified him solely in the courtroom. As to these, the Court holds that '(t) he admission of the in-court identifications without first determining that they were not tainted by the illegal lineup * * * was constitutional error.' I dissent from this holding in this case and in United States v. Wade, 388 U.S., p. 243, 87 S.Ct., p. 1941, for the reasons there given.
34
For the reasons here stated, I would vacate the judgment of the California Supreme Court and remand for consideration of whether the admission of the handwriting exemplars and the out-of-court lineup identification was harmless error.*
35
Mr. Justice DOUGLAS, concurring in part and dissenting in part.
36
While I agree with the Court's opinion except for Part I,** (as respects which I agree with Mr. Justice BLACK and Mr. Justice FORTAS), I would reverse and remand for a new trial on the search and seizure point. The search of the petitioner's home is sought to be justified by the doctrine of 'hot pursuit,' even though the officers conducting the search knew that petitioner, the suspected criminal, was not at home.
37
At about 10:30 a.m. on January 3, 1964, a California bank was robbed by two armed men; a police officer was killed by one of the robbers. Another officer shot one of the robbers, Weaver, who was captured a few blocks from the scene of the crime. Weaver told the police that he had participated in the robbery and that a person known to him as 'Skinny' Gilbert was his accomplice. He told the officers that Gilbert lived in Apartment 28 of 'a Hawaiian sounding named apartment house' on Los Feliz Boulevard. This information was given to the Federal Bureau of Investigation and was broadcast to a field agent, Kiel, who was instructed to find the apartment. Kiel located the 'Lanai,' an apartment on Los Feliz Boulevard, at about 1 p.m., informed the radio control, and engaged the apartment manager in conversation. While they were talking, a man gave a key to the manager and told her that he was going to San Francisco for a new days. Agent Kiel learned from the manager that Flood, one of the two men who had rented Apartment 28 the previous day, was the man who had just turned in the key and left by the rear exit. The agent ran out into the alleyway but saw no one.
38
In the meantime, the federal officers learned from Weaver that Gilbert was registered under the name of Flood. They also learned that three men may have been involved in the robbery—the two who entered the bank and a third driving the getaway car. About 1:10 p.m., additional federal agents arrived at the apartment, in response to Agent Kiel's radio summons. Kiel told them that the resident of Apartment 28 was a Robert Flood who had just left. The agents obtained a key from the manager, entered the apartment and searched for a person or a hiding place for a person. They found no one. But they did find an envelope containing pictures of petitioner; the pictures were seized and shown to bank employees for identification. The agents also found a notebook containing a diagram of the area surrounding the bank, a clip from an automatic pistol, and a bag containing rolls of coins bearing the marking of the robbed bank. On the basis of this information, a search warrant was issued, and the automatic clip, notebook, and coin rolls were seized. Petitioner was arrested in Pennsylvania on February 26. The items seized during the search of his apartment were introduced in evidence at his trial for murder.
39
The California Supreme Court justified the search on the ground that the police were in not pursuit of the suspected bank robbers. The entry of the apartment was lawful. The subsequent search and seizure was lawful since the officers were trying to further identify suspects and to facilitate continued pursuit. 63 Cal.2d 690, 47 Cal.Rptr. 909, 408 P.2d 365.
40
I have set forth the testimony relating to the search more fully in the Appendix to this opinion. For the reasons stated there, I cannot agree that 'the facts do not appear with sufficient clarity to enable us to decide' the serious question presented.
41
Since the search and seizure took place without a warrant, it can stand only if it comes within one of the narrowly defined exceptions to the rule that a search and seizure must rest upon a validly executed search warrant. See, e.g. United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59; Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514; Rios v. United States, 364 U.S. 253 261, 80 S.Ct. 1431, 1436, 4 L.Ed.2d 1688; Stoner v. State of California, 376 U.S. 483, 486, 84 S.Ct. 889, 891, 11 L.Ed.2d 856. One of these exceptions is that officers having probable cause to arrest may enter a dwelling to make the arrest and conduct a contemporaneous search of the place of arrest 'in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody.' Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145. This, of course, assumes that an arrest has been made, and that the search 'is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest.' Stoner v. State of California, supra, 376 U.S. at 486, 84 S.Ct. at 891. In this case, the exemption is not applicable since the arrest was made many days after the search and at a location far removed from the search.
42
Here, the officers entered the apartment, searched for petitioner and did not find him. Nevertheless, they continued searching the apartment and seized the pictures; the inescapable conclusion is that they were searching for evidence linking petitioner to the bank robbery, not for the suspected robbers. The court below said that, having legally entered the apartment, the officer 'could properly look through the apartment for anything that could be used to identify the suspects or expedite the pursuit.' 63 Cal.2d, at 707, 47 Cal.Rptr., at 919, 408 P.2d, at 375.
43
Prior to this case, police could enter and search a house without a warrant only incidental to a valid arrest. If this judgment stands, the police can search a house for evidence, even though the suspect is not arrested. The purpose of the search is, in the words of the California Supreme Court, 'limited to and incident to the purpose of the officers' entry'—that is, to apprehend the suspected criminal. Under that doctrine, the police are given license to search for any evidence linking the homeowner with the crime. Certainly such evidence is well calculated 'to identify the suspects,' and will 'expedite the pursuit' since the police can then concentrate on the person whose home has been ransacked. Ibid.
44
The search and seizure in this case violates another limitation, which concededly the ill-starred decision in Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, flouted, viz., that a general search for evidence, even when the police are in 'hot pursuit' or have a warrant of arrest, does not make constitutional a general search of a room or of a house (United States v. Lefkowitz, 285 U.S. 452, 463—464, 52 S.Ct. 420, 422—423, 76 L.Ed. 877). If it did, then the police, acting without a search warrant, could search more extensively than he n they a have warrant. For the warrant must, as prescribed by the Fourth Amendment, 'particularly' describe the 'things to be seized.' As stated by the Court in United States v. Lefkowitz, supra, at 464, 52 S.Ct., at 423:
45
'The authority of officers to search one's house or place of business contemporaneously with his lawful arrest therein upon a valid warrant of arrest certainly is not greater than that conferred by a search warrant issued upon adequate proof and sufficiently describing the premises and the things sought to be obtained. Indeed, the informed and deliberate determinations of magistrates empowered to issue warrants as to what searches and seizures are permissible under the Constitution are to be preferred over the hurried action of officers and others who may happen to make arrests. Security against unlawful searches is more likely to be attained by resort to search warrants than by reliance upon the caution and sagacity of petty officers while acting under the excitement that attends the capture of persons accused of crime.'
46
Indeed, if at the very start, there had been a search warrant authorizing the seizure of the automatic clip, notebook, and coin rolls, the envelope containing pictures of petitioner could not have been seized. 'The requirement that warrants shall particularly describe the things to be seized * * * prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.' Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231.
47
The modern police technique of ransacking houses, even to the point of seizing their entire contents as was done in Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876, is a shocking departure from the philosophy of the Fourth Amendment. For the kind of search conducted here was indeed a general search. And if the Fourth Amendment was aimed at any particular target it was aimed at that. When we take that step, we resurrect one of the deepest-rooted complaints that gave rise to our Revolution. As the Court stated in Boyd v. United States, 116 U.S. 616, 625, 6 S.Ct. 524, 529, 29 L.Ed. 746:
48
'The practice had obtained in the colonies of issuing writs of assistance to the revenue officers empowering them, in their discretion, to search suspected places for smuggled goods, which James Otis pronounced 'the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental prnciples of law, that ever was found in an English and the fundamental principles of law, liberty of every man in the hands of every petty officer.' This was in February, 1761, in Boston, and the famous debate in which it occurred was perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country. 'Then and there,' said John Adams, 'then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born."
49
I would not allow the general search to reappear on the American scene.
50
APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS.
51
As the Court notes, there is some confusion in the record respecting the timing of events surrounding the search and the breadth of purpose with which the search was conducted. The confusion results from the testimony of the agents involved.
52
Agent Kiel testified that Agents Schlatter and Onsgaard arrived at the apartment at about 1:10 and entered the apartment in a minute or two after their arrival. Kiel received the photographs from Agent Schlatter between 1:25 and 1:30.
53
Agent Schlatter testified that he, Agent Onsgaard and some local police arrived at the apartment about 1:05 and that Agent Crowley and one or two local police officers arrived in another car at the same time. Schlatter briefly talked to Kiel and the apartment manager and then entered the apartment. Upon entering he saw no oe. He 'made a very fast search of the apartment for (a) person or a hiding place of a person and * * * found none.' This search took 'a matter of seconds or a minute at the outside' and '(a)fter we had searched for a person or persons, and no one was there, it then became a matter of a stakeout under the assumption that the person or persons involved would come back.' It seemed to Schlatter that 'an agent had (the photograph) in his hand,' when he first saw it, that it 'was in the hands of an agent or an officer,' and Schlatter had 'a vague recollection that (the agent or officer told him he had found it) in the bedroom * * *.' There were a number of photographs. Schlatter took the photographs out to Kiel and instructed him to take one of them to the savings and loan association and see if anyone there could recognize the photograph. Schlatter testified that he was in the apartment for about 30 minutes after making the search and left other agents behind when he left.
54
Agent Crowley testified that he entered the apartment 'around 1:30, give or take a few minutes either way' and that he would say that the other officers had been in the apartment less than five minutes before he entered. He believed that 'the officers and the other agent who had been with (him) at the rear of the building when the first entry was made, entered with (him).' When Crowley entered the apartment it 'had already been searched for people.' He received 'instructions * * * to look through the apartment for anything we could find that we could use to identify or continue the pursuit of this person without conducting a detailed search.' In the bedroom, on the dresser, Crowley saw an envelope bearing the name 'Marlboro Photo Studio'; it appeared to him to be an envelope containing photos and he could see that there was something inside. Crowley opened the envelope and saw several copies of photographs. He discussed the matter with 'Onsgaard who was in charge in the building and he instructed (Crowley) to give it to another agent for him to utilize in pursuing the investigation, and (he was) reasonably certain that that agent was Mr. Schlatter.' This was about 1:30 according to Crowley. In the course of his search which turned up the photographs, Crowley 'turned over (items) to see what was on the reverse, such as business cards, sales slips from local stores, that sort of item which might have been folded and would appear to possibly contain information of value to pursuit.' He relayed the information obtained in this manner to the man coordinating the operation. Crowley remained in the apartment until the next morning.
55
Agent Townsend testified that he arrived at the apartment '(s)ometime between perhaps 1:30 and 2:00.' Within an hour of his arrival, he began a search. Townsend testified that he, Agent Crowley, another agent and a local officer 'looked through the bedroom closet and the dresser and I think the headstand.' This was after it was known that no one, other than agents and police officers, was in the apartment. Townsend stated that the agents and officers were '(i)n and out of the bedroom,' that he found money in the bedroom dresser about an hour after he arrived in the apartment, and that he could not 'say specifically' whether Crowley was there at that time.
56
Thus, there is some conflict regarding the times at which the events took place and with respect to the nature of the searches conducted by the various officers. The way I read the record, however, it is not in such a state 'that the facts do not appear with sufficient clarity to enable us to decide' the question presented. Crowley's testimony that he came upon the photographs while searching 'for anything * * * that we could use to identify or continue the pursuit' stands uncontradicted, as does his testimony that the apartment had already been searched for a person prior to his search uncovering the photographs. Schlatter's testimony that the operation 'became a matter of a stake-out' after the unsuccessul search for a person does not contradict Crowley's testimony. A search for identifying evidence is certainly compatible with a 'stake-out.' And Crowley best knew what he was doing when he discovered the photographs. Nor does Townsend's testimony that he and others, perhaps including Crowley, conducted a detailed search conflict with Crowley's testimony. First, the record indicates that the detailed search was conducted after the photographs had been found. According to the testimony of Kiel and Schlatter, Schlatter gave the photographs to Kiel at about 1:30; according to Townsend, he arrived sometime between 1:30 and 2. Second, even if the detailed search took place before Crowley found the photographs and Crowley participated in that search, that does not indicate that Crowley's search which turned up the photographs was more limited than Crowley claimed. If anything, it would indicate that his search was more general than he stated. Finally, Townsend's testimony as to the general search does not conflict with Schlatter's testimony that the operation became a 'stake-out' after the suspect was not found. As I have said, a 'stake-out' does not preclude a detailed search for evidence. And, the record indicates that Schlatter was not in the apartment when Townsend and the others conducted the detailed search.
57
The way I read the record, the photographs were discovered in the course of a general search for evidence. But even if Crowley is not believed and his testimony relating to the nature of his search is thrown out and it is simply assumed that he came upon the envelope in the course of a search for the suspect, there was no reason to pry into the envelope and seize the pictures—other than to obtain evidence. An envelope would contain neither the suspect nor the weapon.
58
Mr. Justice WHITE, whom Mr. Justice HARLAN and Mr. Justice STEWART join, concurring in part and dissenting in part.
59
I concur in Parts I, II, and III of the Court's opinion, but for the reasons stated in my separate opinion in United States v. Wade, 386 U.S. 250, 87 S.Ct. 1944, 18 L.Ed.2d 1170, I dissent from Part IV of the Court's opinion and would therefore affirm the judgment of the Supreme Court of California.
60
Mr. Justice FORTAS, with whom THE CHIEF JUSTICE joins, concurring in part and dissenting in part.
61
I concur in the result—the vacation of the judgment of the California Supreme Court and the remand of the case—but I do not believe that it is adequate. I would reverse and remand for a new trial on the additional ground that petitioner was entitled by the Sixth and Fourteenth Amendments to be advised that he had a right to counsel before and in connection with his response to the prosecutor's demand for a handwriting exemplar.
62
1. The giving of a handwriting exemplar is a 'critical stage' of the proceeding, as my Brother BLACK states. It is a 'critical stage' as much as is a lineup. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. Depending upon circumstances, both may be inoffensive to the Constitution, totally fair to the accused, and entirely reliable for the administration of justice. On the other hand, each may be constitutionally offensive, totally unfair to the accused, and prejudicial to the ascertainment of truth. An accused whose handwriting exemplar is sought needs counsel: Is he to write 'Your money or your life?' Is he to emulate the holdup note by using red ink, brown paper, large letters, etc? Is the demanded handwriting exemplar, in effect, an inculpation—a confession? Cf. the eloquent arguments as to the need for counsel, in the Court's opinion in United States v. Wade, supra.
63
2. The Court today appears to hold that an accused may be compelled to give a handwriting exemplar. Cf. Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Presumably, he may be punished if he adamantly refuses. unlike blood, handwriting cannot be extracted by a doctor from an accused's veins while the accused is subjected to physical restraint, which Schmerber permits. So presumably, on the basis of the Court's decision, trial courts may hold an accused in contempt and keep him in jail—indefinitely—until he gives a handwriting exemplar.
64
This decision goes beyond Schmerber. Here the accused, in the absence of any warning that he has a right to counsel, is compelled to cooperate, not merely to submit; to engage in a volitional act, not merely to suffer the inevitable consequences of arrest and state custody; to take affirmative action which may not merely identify him, but tie him directly to the crime. I dissented in Schmerber. For reasons stated in my separate opinion in United States v. Wade, supra, I regard the extension of Schmerber as impermissible.
65
In Wade, the accused, who is compelled to utter the words used by the criminal in the heat of his act, has at least the comfort of counsel—even if the Court denies that the accused may refuse to speak the words—because the compelled utterance occurs in the course of a lineup. In the present case, the Court deprives him of even this source of comfort and whatever protection counsel's ingenuity could provide in face of the Court's opinion. This is utterly insupportable, in my respectful opinion. This is not like fingerprinting, measuring, photographing—or even blood-taking. It is a process involving the use of discretion. It is capable of abuse. It is in the stream of inculpation. Cross-examination can play only a limited role in offsetting false inference or misleading coincidence from a 'stacked' handwriting exemplar. The Court's reference to the efficacy of cross-examination in this situation is much more of a comfort to an appellate court than a source of solace to the defendant and his counsel.
66
3. I agree with the Court's condemnation of the lineup identifications here and the consequent in-court identifications, and I join in this part of its opinion. I would also reverse and remand for a new trial because of the use of the handwriting exemplars which were unconstitutionally obtained in the absence of advice to the accused as to the availability of counsel. I could not conclude that the violation of the privilege against self-incrimination implicit in the facts relating to the exemplars was waived in the absence of advice as to counsel. In re Gault, 387 U.S. 1, 38—39, 87 S.Ct. 1428, 1449—1450, 18 L.Ed.2d 527 (1967); Miranda v. State of Arizona, 384 U.S. 436, 8 § .Ct. 1602, 16 L.Ed.2d 694 (1966).
1
The California Supreme Court also held that '* * * the (erroneous) admission of King's statements at the trial on the issue of guilt was not prejudicial on the question of Gilbert's penalty,' again citing Fahy, 63 Cal.2d, at 702, 47 Cal.Rptr., at 916, 408 P.2d, at 372.
2
The record in Gilbert v. United States, 9 Cir., 366 F.2d 923, involving the federal prosecutions of Gilbert, apparently contains many more details of what occurred at the lineup. The opinion of the Court of Appeals for the Ninth Circuit states, 366 F.2d, at 935:
'The lineup occurred on March 26, 1964, after Gilbert had been indicted and had obtained counsel. It was held in an auditorium used for that purpose by the Los Angeles police. Some ten to thirteen prisoners were placed on a lighted ta ge. The witnesses were assembled in a darkened portion of the room, facing the stage and separated from it by a screen. They could see the prisoners but could not be seen by them. State and federal officers were also present and one of them acted as 'moderator' of the proceedings.
'Each man in the lineup was identified by number, but not by name. Each man was required to step forward into a marked circle, to turn, presenting both profiles as well as a face and back view, to walk, to put on or take off certain articles of clothing. When a man's number was called and he was directed to step into the circle, he was asked certain questions: where he was picked up, whether he owned a car, whether, when arrested, he was armed, where he lived. Each was also asked to repeat certain phrases, both in a loud and in a soft voice, phrases that witnesses to the crimes had heard the robbers use: 'Freeze, this is a stickup; this is holdup; empty your cash drawer; this is a heist; don't anybody move.'
'Either while the men were on the stage, or after they were taken from it, it is not clear which, the assembled witnesses were asked if there were any that they would like to see again, and told that if they had doubts, now was the time to resolve them. Several gave the numbers of men they wanted to see, including Gilbert's. While the other prisoners were no longer present, Gilbert and 2 or 3 others were again put through a similar procedure. Some of the witnesses asked that a particular prisoner say a particular phrase, or walk a particular way. After the lineup, the witnesses talked to each other; it is not clear that they did so during the lineup. They did, however, in each other's presence, call out the numbers of men they could identify.'
3
There is a split among the States concerning the admissibility of prior extrajudicial identifications, as independent evidence of identity, both by the witness and third parties present at the prior identification. See 71 A.L.R.2d 449. It was been held that the prior identification is hearsay, and, when admitted through the testimony of the identifier, is merely a prior consistent statement. The recent trend, however, is to admit the prior identification under the exception that admits as substantive evidence a prior communication by a witness who is available for cross-examination at trial. See 5 A.L.R.2d Later Case Service 1225—1228. That is the California rule. In People v. Gould, 54 Cal.2d 621, 626, 7 Cal.Rptr. 273, 275, 354 P.2d 865, 867, the Court said:
'Evidence of an extra-judicial identification is admissible, not only to corroborate an identification made at the trial (People v. Slobodion, 31 Cal.2d 555, 560, 191 P.2d 1), but as independent evidence of identity. Unlike other testimony that cannot be corroborated by proof of prior consistent statements unless it is first impeached * * * evidence of an extra-judicial identification is admitted regardless of whether the testimonial identification is impeached, because the earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness' mind. * * * The failure of the witness to repeat the extra-judicial identification in court does not destroy its probative value, for such failure may be explained by loss of memory or other circumstances. The extra-judicial identification tends to connect the defeda nt with the crime, and the principal danger of admitting hearsay evidence is not present since the witness is available at the trial for cross-examination.' New York deals with the subject in a statute. See N.Y.Code Crim.Proc. § 393 b.
*
The Court dismisses as improvidently granted the Fourth Amendment search-and-seizure question raised by Gilbert in this case. I dissent from this, because I would decide that question against Gilbert. However, since the Court refuses to decide that question, I see no reason for expressing my views at length.
**
On that phase of the case I agree with Mr. Justice BLACK and Mr. Justice FORTAS.
| 01
|
388 U.S. 130
87 S.Ct. 1975
18 L.Ed.2d 1094
CURTIS PUBLISHING CO., Petitioner,v.Wallace BUTTS. The ASSOCIATED PRESS, Petitioner, v. Edwin A. WALKER.
Nos. 37, 150.
Argued Feb. 23, 1967.
Decided June 12, 1967.
Rehearings Denied Oct. 9, 1967.
See 88 S.Ct. 11, 13.
-No. 37:
[Syllabus from pages 130-133 intentionally omitted]
Herbert Wechsler, New York City, for petitioner.
Allen E. Lockerman and William H. Schroder, Atlanta, Ga., for respondent.
No. 150:
William P. Rogers, New York City, for petitioner.
Clyde J. Watts, Oklahoma City, Okl., for respondent.
Mr. Justice HARLAN announced the judgments of the Court and delivered an opinion in which Mr. Justice CLARK, Mr. Justice STEWART, and Mr. Justice FORTAS join.**
1
In New York Times Co. v. Sullivan, 376 U.S. 254, 279—280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686, this Court held that '(t)he constitutional guarantees (of freedom of speech and press) require * * * a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.' We brought these two cases here, 385 U.S. 811, 87 S.Ct. 30, 17 L.Ed.2d 52, 385 U.S. 812, 87 S.Ct. 40, 17 L.Ed.2d 52, to consider the impact of that decision on libel actions instituted by persons who are not public officials, but who are 'public figures' and involved in issues in which the public has a justified and important interest. The sweep of the New York Times rule in libel actions brought under state law was a question expressly reserved in that case, 376 U.S., at 283, n. 23, 84 S.Ct., at 727, and while that question has been involved in later cases, Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125; Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597; Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456, it has not been fully settled.
2
The matter has, however, been passed on by a considerable number of state and lower federal courts and has produced a sharp division of opinion as to whether the New York Times rule should apply only in actions brought by public officials or whether it has a longer reach. Compare, e.g., Pearson v. Fairbanks Publishing Co., 413 P.2d 711 (Alaska), with Clark v. Pearson, D.C., 248 F.Supp. 188.1 The resolution of the uncertainty in this area of libel actions requires, at bottom, some further exploration and clarification of the reat ionship between libel law and the freedom of speech and press, lest the New York Times rule become a talisman which gives the press constitutionally adequate protection only in a limited field, or, what would be equally unfortunate, one which goes far to immunize the press from having to make just reparation for the infliction of needless injury upon honor and reputation through false publication. These two libel actions, although they arise out of quite different sets of circumstances, provide that opportunity. We think they are best treated together in one opinion.
I.
3
No. 37, Curtis Publishing Co. v. Butts, stems from an article published in petitioner's Saturday Evening Post which accused respondent of conspiring to 'fix' a football game between the University of Georgia and the University of Alabama, played in 1962. At the time of the article, Butts was the athletic director of the University of Georgia and had overall responsibility for the administration of its athletic program. Georgia is a state university, but Butts was employed by the Georgia Athletic Association, a private corporation, rather than by the State itself.2 Butts had previously served as head football coach of the University and was a well-known and respected figure in coaching ranks. He had maintained an interest in coaching and was negotiating for a position with a professional team at the time of publication.
4
The article was entitled 'The Story of a College Football Fix' and prefaced by a note from the editors stating: 'Not since the Chicago White Sox threw the 1919 World Series has there been a sports story as shocking as this one. * * * Before the University of Georgia played the University of Alabama * * * Wally Butts * * * gave (to its coach) * * * Georgia's plays, defensive patterns, all the significant secrets Georgia's football team possessed.' The text revealed that one George Burnett, an Atlanta insurance salesman, had accidentally overheard, because of electronic error, a telephone conversation between Butts and the head coach of the University of Alabama, Paul Bryant, which took place approximately one week prior to the game. Burnett was said to have listened while 'Butts outlined Georgia's offensive plays * * * and told * * * how Georgia planned to defend * * *. Butts mentioned both players and plays by name.' The readers were told that Burnett had made notes of the conversation, and specific examples of the divulged secrets were set out.
5
The article went on to discuss the game and the players' reaction to the game, concluding that '(t)he Georgia players, their moves analyzed and forecast like those of rats in a maze, took a frightful physical beating,' and said that the players, and other sideline observers, were aware that Alabama was privy to Georgia's secrets. It set out the series of events commencing with Burnett's later presentation of his notes to the Georgia head coach, Johnny Griffith, and culminating in Butts' resignation from the University's athletic affairs, for health and business reasons. The article's conclusion made clear its expected impact:
6
'The chances are that Wally Butts will never help any football team again. * * * The investigation by university and Southeastern Conference officials is continuing; motion pictures of other games are being scrutinized; where it will end no one so far can say. But careers will be ruined, that is sure.'
7
Butts brought this diversity libel action in the federal courts in Georgia seeking $5,000,000 compensatory and $5,000,000 punitive damages. The complaint was filed, and the trial completed, before this Court handed down its decision in New York Times, and the only defense raised by petitioner Curtis was one of substantial truth. No constitutional defenses were interposed although Curtis' counsel were aware of the progress of the New York Times case, and although general constitutional defenses had been raised by Curtis in a libel action instituted by the Alabama coach who was a state employee.
8
Evidence at trial was directed both to the truth of the article and to its preparation. The latter point was put in issue by the claim for punitive damages which required a finding of 'malice' under Georgia law. The evidence showed that Burnett had indeed overheard a conversation between Butts and the Alabama coach, but the content of that conversation was hotly disputed. It was Butts' contention that the conversation had been general football talk and that nothing Burnett had overheard would have been of any particular value to an opposing coach. Expert witnesses supported Butts by analyzing Burnett's notes and the films of the game itself. The Saturday Evening Post's version of the game and of the players' remarks about the game was severely contradicted.
9
The evidence on the preparation of the article, on which we shall focus in more detail later, cast serious doubt on the adequacy of the investigation underlying the article. It was Butts' contention that the magazine had departed greatly from the standards of good investigation and reporting and that this was especially reprehensible, amounting to reckless and wanton conduct, in light of the devastating nature of the article's assertions.
10
The jury was instructed that in order for the defense of truth to be sustained it was 'necessary that the truth be substantially portrayed in those parts of the article which libel the plaintiff.' The 'sting of the libel' was said to be 'the charge that the plaintiff rigged and fixed the 1962 Georgia-Alabama game by giving Coach Bryant (of Alabama) information which was calculated to or could have affected the outcome of the game.' The jury was also instructed that it could award punitive damages 'to deter the wrong-doer from repeating the trespass' in an amount within its sole discretion if it found that actual malice had been proved.3
11
The jury returned a verdict for $ 60,000 in general damages and for $3,000,000 in punitive damages. The trial court reduced the total to $460,000 by remittitur. Soon thereafter we handed down our decision in New York Times and Curtis immediately brought it to the attention of the trial court by a motion for new trial. The trial judge rejected Curtis' motion on two grounds. He first held that New York Times was inapplicable because Butts was not a public official. He also held that 'there was ample evidence from which a jury could have concluded that there was reckless disregard by defendant of whether the article was false or not.'
12
Curtis appealed to the Court of Appeals for the Fifth Circuit which affirmed the judgment of the District Court by a two-to-one vote. The majority there did not reach the merits of petitioner's constitutional claim, holding that Curtis had 'clearly waived any right it may have had to challenge the verdict and judgment on any of the constitutional grounds asserted in Times.' 351 F.2d 702, 713, on the basis of Michel v. State of Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83. It found Curtis chargeable with knowledge of the constitutional limitations on libel law at the time it filed its pleadings below because of its 'interlocking battery of able and distinguished attorneys' some of whom were involved in the New York Times litigation. This holding rendered the compensatory damage decision purely one of state law and no error was found in its application. Turning to the punitive damage award, the majority upheld it as stemming from the 'enlightened conscience' of the jury as adjusted by the lawful action of the trial judge. It was in 'complete accord' with the trial court's determination that the evidence justified the finding 'that what the Post did was done with reckless disregard of whether the article was false or not.' 351 F.2d, at 719.
13
Judge Rives dissented, arguing that the record did not support a finding of knowing waiver of constitutional defenses. He concluded that the New York Times rule was applicable because Butts was involved in activities of great interest to the public. He would have reversed because 'the jury might well have understood the district court's charge to allow recovery on a showing of intent to inflict harm or even the culpably negligent infliction of harm, rather than the intent to inflict harm through falsehood * * *.' 351 F.2d, at 723.
14
Rehearing was denied, 351 F.2d, at 733, and we granted certiorari, as indicated above. For reasons given below, we would affirm.
II.
15
No. 150, Associated Press v. Walker, arose out of the distribution of a news dispatch giving an eyewitness account of events on the campus of the University of Mississippi on the night of September 30, 1962, when a massive riot erupted because of federal efforts to enforce a court decree ordering the enrollment of a Negro, James Meredith, as a student in the University. The dispatch stated that respondent Walker, who was present on the campus, had taken command of the violent crowd and had personally led a charge against federal marshals sent there to effectuate the court's decree and to assist in preserving order. It also described Walker as encouraging rioters to use violence and giving them technical advice on combating the effects of tear gas.
16
Walker was a private citizen at the time of the riot and publication. He had pursued a long and honorable career in the United States Army before resigning to engage in political activity, and had, in fact, been in command of the federal troops during the school segregation confrontation at Little Rock, Arkansas, in 1957. He was acutely interested in the issue of physical federal intervention, and had made a number of strong statements against such action which had received wide publicity. Walker had his own following, the 'Friends of Walker,' and could fairly be deemed a man of some political prominence.
17
Walker initiated this libel action in the state courts of Texas, seeking a total of $2,000,000 in compensatory and punitiv d amages. Associated Press raised both the defense of truth and constitutional defenses. At trial both sides attempted to reconstruct the stormy events on the campus of the University of Mississippi. Walker admitted his presence on the campus and conceded that he had spoken to a group of students. He claimed, however, that he had counseled restraint and peaceful protest, and exercised no control whatever over the crowd which had rejected his plea. He denied categorically taking part in any charge against the federal marshals.
18
There was little evidence relating to the preparation of the news dispatch. It was clear, however, that the author of this dispatch, Van Savell, was actually present during the events described and had reported them almost immediately to the Associated Press office in Atlanta. A discrepancy was shown between an oral account given the office and a later written dispatch, but it related solely to whether Walker had spoken to the group before or after approaching the marshals. No other showing of improper preparation was attempted, nor was there any evidence of personal prejudice or incompetency on the part of Savell or the Associated Press.
19
The jury was instructed that an award of compensatory damages could be made if the dispatch was not substantially true,4 and that punitive damages could be added if the article was actuated by 'ill will, bad or evil motive, or that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person to be affected by it.'
20
A verdict of $500,000 compensatory damages and $300,000 punitive damages was returned. The trial judge, however, found that there was 'no evidence to support the jury's answers that there was actual malice' and refused to enter the punitive award. He concluded that the failure further to investigate the minor discrepancy between the oral and written versions of the incident could not 'be construed as that entire want of care which would amount to a conscious indifference to the rights of plaintiff. Negligence, it may have been; malice, it was not. Moreover, the mere fact that AP permitted a young reporter to cover the story of the riot is not evidence of malice.' (Emphasis in original.) The trial judge also noted that this lack of 'malice' would require a verdict for the Associated Press if New York Times were applicable. But he rejected its applicability since there were 'no compelling reasons of public policy requiring additional defenses to suits for libel. Truth alone should be an adequate defense.'
21
Both sides appealed and the Texas Court of Civil Appeals affirmed both the award of compensatory damages and the striking of punitive damages. It stated without elaboration that New York Times was inapplicable. As to the punitive damage award, the plea for reinstatement was refused because '(i)n view of all the surrounding circumstances, the rapid and confused occurrence of events on the occasion in question, and in the light of all the evidence, we hold that appellee failed to prove malice * * *.' 393 S.W.2d 671, 683.
22
The Supreme Court of Texas denied a writ of error, and we granted certiorari, as already indicated. For reasons given below, we would reverse.
III.
23
Before we reach the constitutional arguments put forward by the respective petitioners, we must first determine whether Curtis has waived its right to assert such arguments by failing to assert them before trial. As our dispositions of Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597, and other cases involving constitutional questions indicate,5 the mere failure to interpose such a defense prior to the announcement of a decision which might support it cannot prevent a litigant from later invoking such a ground. Of course it is equaly clear that even constitutional objections may be waived by a failure to raise them at a proper time, Michel v. State of Louisiana, supra, 350 U.S. at 99, 76 S.Ct., at 163,6 but an effective waiver must, as was said in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 be one of a 'known right or privilege.'
24
Butts makes two arguments in support of his contention that Curtis' failure to raise constitutional defenses amounted to a knowing waiver. The first is that the general state of the law at the time of this trial was such that Curtis should, in the words of the Fifth Circuit majority, have seen 'the handwriting on the wall.' 351 F.2d at 734. We cannot accept this contention. Although our decision in New York Times did draw upon earlier precedents in state law, e.g., Coleman v. MacLennan, 78 Kan. 711, 98 P. 281, 20 L.R.A., N.S., 361, and there were intimations in a prior opinion and the extra-judicial comments of one Justice,7 that some applications of libel law might be in conflict with the guarantees of free speech and press, there was strong precedent indicating that civil libel actions were immune from general constitutional scrutiny.8 Given the state of the law prior to your decision in New York Times, we do not think it unreasonable for a lawyer trying a case of this kind, where the plaintiff was not even a public official under state law, to have looked solely to the defenses provided by state libel law. Nor do we think that the previous grant of certiorari in New York Times alone indicates a different conclusion. The questions presented for review there were premised on Sullivan's status as an elected public official, and elected officials traditionally have been subject to special rules of libel law.9
25
Butts' second contention is that whatever defenses might reasonably have been apparent to the average lawyer, some of Curtis' trial attorneys were involved in the New York Times litigation and thus should have been especially alert to constitutional contentions. This was the argument which swayed the Court of Appeals, but we do not find it convincing.
26
First, as a general matter, e think it inadvisable to determine whether a 'right or privilege' is 'known' by relying on information outside the record concerning the special legal knowledge of particular attorneys. Second, even a lawyer fully cognizant of the record and briefs in the New York Times litigation might reasonably have expected the resolution of that case to have no impact on this litigation, since the arguments advanced there depended so heavily on the analogy to seditious libel. We think that it was our eventual resolution of New York Times, rather than its facts and the arguments presented by counsel, which brought out the constitutional question here. We would not hold that Curtis waived a 'known right' before it was aware of the New York Times decision. It is agreed that Curtis' presentation of the constitutional issue after our decision in New York Times was prompt.
27
Our rejection of Butts' arguments is supported by factors which point to the justice of that conclusion. See Hormel v. Helvering, 312 U.S. 552, 556—557, 61 S.Ct. 719, 721, 85 L.Ed. 1037. Curtis' constitutional points were raised early enough so that this Court has had the benefit of some ventilation of them by the courts below. The resolution of the merits of Curtis' contentions by the District Court makes it evident that Butts was not prejudiced by the time at which Curtis raised its argument, for it cannot be asserted that an earlier interposition would have resulted in any different proceedings below.10 Finally the constitutional protection which Butts contends that Curtis has waived safeguards a freedom which is the 'matrix, the indispensable condition, of nearly every other form of freedom.' Palko v. State of Connecticut, 302 U.S. 319, 327, 58 S.Ct. 149, 152, 82 L.Ed. 288. Where the ultimate effect of sustaining a claim of waiver might be an imposition on that valued freedom, we are unwilling to find waiver in circumstances which fall short of being clear and compelling. Cf. New York Times Co. v. Connor, 5 Cir., 365 F.2d 567, 572.
IV.
28
We thus turn to a consideration, on the merits, of the constitutional claims raised by Curtis in Butts and by the Associated Press in Walker. Powerful arguments are brought to bear for the extension of the New York Times rule in both cases. In Butts it is contended that the facts are on all fours with those of Rosenblatt v. Baer, supra, since Butts was charged with the important responsibility of managing the athletic affairs of a state university. It is argued that while the Athletic Association is financially independent from the State and Butts was not technically a state employee, as was Baer, his role in state administration was so significant that this technical distinction from Rosenblatt should be ignored. Even if this factor is to be given some weight, we are told that the public interest in education in general, and in the conduct of the athletic affairs of educational institutions in particular, justifies constitutional protection of discussion of persons involved in it equivalent to the protection afforded discussion of public officials.
29
A similar argument is raised in the Walker case where the important public interest in being informed about the events and personalities involved in the Mississippi riot is pressed. In that case we are also urged to recognize that Walker's claims to the protection of libel laws are limited since he thrust himself into the 'vortex' of the controversy.
30
We are urged by the respondents, Butts and Walker, to recognize society's 'pervasive and strong interest in preventing and redressing attacks upon reputation', and the 'important social values which underline the law of defamation.' Rosenblatt v. Baer, spr a, 383 U.S., at 86, 86 S.Ct., at 676. It is pointed out that the publicity in these instances was not directed at employees of government and that these cases cannot be analogized to seditious libel prosecutions. Id., at 92, 86 S.Ct., at 679 (Stewart, J., concurring). We are told that '(t)he rule that permits satisfaction of the deep-seated need for vindication of honor is not a mere historic relic, but promotes the law's civilizing function of providing an acceptable substitute for violence in the settlement of disputes,' Afro-American Publishing Co. v. Jaffe, 125 U.S.App.D.C. 70, 81, 366 F.2d 649, 660, and that:
31
'Newspapers, magazines, and broadcasting companies are businesses conducted for profit and often make very large ones. Like other enterprises that inflict damage in the course of performing a service highly useful to the public * * * they must pay the freight; and injured persons should not be relegated (to remedies which) make collection of their claims difficult or impossible unless strong policy considerations demand.' Buckley v. New York Post Corp., 2 Cir., 373 F.2d 175, 182.
32
We fully recognize the force of these competing considerations and the fact that an accommodation between them is necessary not only in these cases, but in all libel actions arising from a publication concerning public issues. In Time, Inc. v. Hill, 385 U.S. 374, at 388, 87 S.Ct. 534, at 542 we held that '(t)he guarantees for speech and press are not the preserve of political expression or comment upon public affairs * * *.' and affirmed that freedom of discussion '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, 84 L.Ed. 1093. This carries out the intent of the Founders who felt that a free press would advance 'truth, science, morality, and arts in general' as well as responsible government. Letter to the Inhabitants of Quebec, 1 Journals of the Continental Cong. 108. From the point of view of deciding whether a constitutional interest of free speech and press is properly involved in the resolution of a libel question a rational distinction 'cannot be founded on the assumption that criticism of private citizens who seek to lead in the determination of * * * policy will be less important to the public interest than will criticism of government officials.' Pauling v. Globe-Democrat Publishing Co., 8 Cir., 362 F.2d 188, 196.
33
On the other hand, to take the rule found appropriate in New York Times to resolve the 'tension' between the particular constitutional interest there involved and the interests of personal reputation and press responsibility, Rosenblatt v. Baer, supra, 383 U.S., at 86, 86 S.Ct., at 676 as being applicable throughout the realm of the broader constitutional interest, would be to attribute to this aspect of New York Times an unintended inexorability at the threshold of this new constitutional development. In Time, Inc. v. Hill, supra, 385 U.S., at 390, 87 S.Ct., at 543 we counseled against 'blind application of New York Times Co. v. Sullivan' and considered 'the factors which arise in the particular context.' Here we must undertake a parallel evaluation.11
34
The modern history of the guarantee of freedom of speech and press mainly has been one of a search for the outer limits of that right. From the fountainhead opinions of Justices Holmes and Brandeis in Schenck, Abrams, and Whitney,12 which considered the problem when the disruptive effects of speech might strip the protection from the speaker, to our recent decision in Adderley v. State of Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149, where we found freedom of speech not to include a freedom to trespass, the Court's primary concern has been to determine the extent of the rgh t and the surrounding safeguards necessary to give it 'breathing space.' NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405. That concern has perhaps omitted from searching consideration the 'real problem' of defining or delimiting the right itself. See Freund, Mr. Justice Black and the Judicial Function, 14 U.C.L.A. L.Rev. 467, 471.
35
It is significant that the guarantee of freedom of speech and press falls between the religious guarantees and the guarantee of the right to petition for redress of grievances in the text of the First Amendment, the principles of which are carried to the States by the Fourteenth Amendment. It partakes of the nature of both, for it is as much a guarantee to individuals of their personal right to make their thoughts public and put them before the community, see Holt, Of the Liberty of the Press, in Nelson, Freedom of the Press from Hamilton to the Warren Court 18—19, as it is a social necessity required for the 'maintenance of our political system and an open society.' Time, Inc. v. Hill, supra, 385 U.S., at 389, 87 S.Ct., at 543. It is because of the personal nature of this right that we have rejected all manner of prior restraint on publication, Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, despite strong arguments that if the material was unprotected the time of suppression was immaterial. Pound Equitable Relief Against Defamation and Injuries to Personality, 29 Harv.L.Rev. 640. The dissemination of the individual's opinions on matters of public interest is for us, in the historic words of the Declaration of Independence, an 'unalienable right' that 'governments are instituted among men to secure.' History shows us that the Founders were not always convinced that unlimited discussion of public issues would be 'for the benefit of all of us'13 but that they firmly adhered to the proposition that the 'true liberty of the press' permitted 'every man to publish his opinion.' Respublica v. Oswald, 1 Dall. 319, 325, 1 L.Ed. 155 (Pa.).
36
The fact that dissemination of information and opinion on questions of public concern is ordinarily a legitimate, protected and indeed cherished activity does not mean, however, that one may in all respects carry on that activity exempt from sanctions designed to safeguard the legitimate interests of others. A business 'is not immune from regulation because it is an agency of the press. The publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others.' Associated Press v. National Labor Relations Board, 301 U.S. 103, 132—133, 57 S.Ct. 650, 656, 81 L.Ed. 953. Federal securities regulation,14 mail fraud statutes,15 and common-law actions for deceit and misrepresentation16 are only some examples of our understanding that the right to communicate information of public interest is not 'unconditional.' See Note, Freedom of Expression in a Commercial Context, 78 Harv.L.Rev. 1191. However, as our decision in New York Times makes explicit, while protected activity may in some respects be subjected to sanctions, it is not open to all forms of regulation. The guarantees of freedom of speech and press were not designed to prevent 'the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential * * *.' 2 Cooley, Constitutional Limitations 886 (8th ed.). Our touchstones are that acceptable limitation m ust neither affect 'the impartial distribution of news' and ideas, Associated Press v. National Labor Relations Board, supra, 301 U.S., at 133, 57 S.Ct., at 656, nor because of their history or impact constitute a special burden on the press, Grosjean v. American Press Co., Inc., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660, nor deprive our free society of the stimulating benefit of varied ideas because their purveyors fear physical or economic retribution solely because of what they choose to think and publish.
37
The history of libel law leaves little doubt that it originated in soil entirely different from that which nurtured these constitutional values. Early libel was primarily a criminal remedy, the function of which was to make punishable any writing which tended to bring into disrepute the state, established religion, or any individual likely to be provoked to a breach of the peace because of the words. Truth was no defense in such actions and while a proof of truth might prevent recovery in a civil action, this limitation is more readily explained as a manifestation of judicial reluctance to enrich an undeserving plaintiff than by the supposition that the defendant was protected by the truth of the publication. The same truthful statement might be the basis of a criminal libel action. See Commonwealth v. Clap, 4 Mass. 163; see generally Veeder, The History and Theory of the Law of Defamation, 3 Col.L.Rev. 546, 4 Cal.L.Rev. 33.
38
The law of libel has, of course, changed substantially since the early days of the Republic, and this change is 'the direct consequence of the friction between it * * * and the highly cherished right of free speech.' State v. Browne, 86 N.J.Super. 217, 228, 206 A.2d 591, 597. The emphasis has shifted from criminal to civil remedies, from the protection of absolute social values to the safeguarding of valid personal interests. Truth has become an absolute defense in almost all cases,17 and privileges designed to foster free communication are almost universally recognized.18 But the basic theory of libel has not changed, and words defamatory of another are still placed 'in the same class with the use of explosives or the keeping of dangerous animals.' Prosser, The Law of Torts § 108, at 792. Thus some antithesis between freedom of speech and press and libel actions persists, for libel remains premised on the content of speech and limits the freedom of the publisher to express certain sentiments, at least without guaranteeing legal proof of their substantial accuracy.
39
While the truth of the underlying facts might be said to mark the line between publications which are of significant social value and those which might be suppressed without serious social harm and thus resolve the antithesis on a neutral ground, we have rejected, in prior cases involving materials and persons commanding justified and important public interest, the argument that a finding of falsity alone should strip protections from the publisher. New York Times Co. v. Sullivan, supra, 376 U.S., at 272, 84 S.Ct., at 721. We have recognized 'the inevitability of some error in the situation presented in free debate,' Time, Inc. v. Hill, supra, 385 U.S., at 406, 87 S.Ct., at 551 (opinion of this writer), and that 'putting to the preexisting prejudices of a jury the detemi nation of what is 'true' may effectively institute a system of censorship.'
40
Our resolution of New York Times Co. v. Sullivan, in the context of the numerous statutes and cases which allow ideologically neutral, and generally applicable regulatory measures to be applied to publication, makes clear, however, that neither the interests of the publisher nor those of society necessarily preclude a damage award based on improper conduct which creates a false publication. It is the conduct element, therefore, on which we must principally focus if we are successfully to resolve the antithesis between civil libel actions and the freedom of speech and press. Impositions based on misconduct can be neutral with respect to content of the speech involved, free of historical taint, and adjusted to strike a fair balance between the interests of the community in free circulation of information and those of individuals in seeking recompense for harm done by the circulation of defamatory falsehood.
41
In New York Times we were adjudicating in an area which lay close to seditious libel, and history dictated extreme caution in imposing liability. The plaintiff in that case was an official whose position in government was such 'that the public (had) an independent interest in the qualifications and performance of the person who (held) it'. Rosenblatt v. Baer, supra, 383 U.S., at 86, 86 S.Ct., at 676. Such officials usually enjoy a privilege against libel actions for their utterances, see, e.g., Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434, and there were analogous considerations involved in New York Times, supra, 376 U.S., at 282, 84 S.Ct., at 727. Thus we invoked 'the hypothesis that speech can rebut speech, propaganda will answer propaganda, free debate of ideas will result in the wisest governmental policies', Dennis v. United States, 341 U.S. 494, 503, 71 S.Ct. 857, 864, 95 L.Ed. 1137, and limited recovery to those cases where 'calculated falsehood' placed the publisher 'at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected.' Garrison v. State of Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125. That is to say, such officials were permitted to recover in libel only when they could prove that the publication involved was deliberately falsified, or published recklessly despite the publisher's awareness of probable falsity. Investigatory failures alone were held insufficient to satisfy this standard. See New York Times, 376 U.S., at 286—288, 292, 84 S.Ct. at 729—730, 732; Garrison v. State of Louisiana, supra, at 73—75, 79, 85 S.Ct. at 215—216, 218.
42
In the cases we decide today none of the particular considerations involved in New York Times is present. These actions cannot be analogized to prosecutions for seditious libel. Neither plaintiff has any position in government which would permit a recovery by him to be viewed as a vindication of governmental policy. Neither was entitled to a special privilege protecting his utterances against accountability in libel. We are prompted, therefore, to seek guidance from the rules of liability which prevail in our society with respect to compensation of persons injured by the improper performance of a legitimate activity by another. Under these rules, a departure from the kind of care society may expect from a reasonable man performing such activity leaves the actor open to a judicial shifting of loss. In defining these rules, and especially in formulating the standards for determining the degree of care to be expected in the circumstances, courts have consistently given much attention to the importance of defendants' activities. Prosser, The Law of Torts § 31, at 151. The courts have also, especially in libel cases, investigated the plaintiff's position to determine whether he has a legitimate call upon the court for protection in light of his prior activities and means of self-defense. See Brewer v. Hearst Publishing Co., 7 Cir., 18 F .2d 846; Flanagan v. Nicholson Publishing Co., 137 La. 588, 68 So. 964, L.R.A.1917E, 510. We note that the public interest in the circulation of the materials here involved, and the publisher's interest in circulating them, is not less than that involved in New York Times. And both Butts and Walker commanded a substantial amount of independent public interest at the time of the publications; both, in our opinion, would have been labeled 'public figures' under ordinary tort rules. See Spahn v. Julian Messner, Inc., 18 N.Y.2d 324, 274 N.Y.S.2d 877, 221 N.E.2d 543, remanded on other grounds, 387 U.S. 239, 87 S.Ct. 1706, 18 L.Ed.2d 744. Butts may have attained that status by position alone and Walker by his purposeful activity amounting to a thrusting of his personality into the 'vortex' of an important public controversy, but both commanded sufficient continuing public interest and had sufficient access to the means of counterargument to be able 'to expose through discussion the falsehood and fallacies' of the defamatory statements. Whitney v. People of State of California, 274 U.S. 357, 377, 47 S.Ct. 641, 649, (Brandeis, J., dissenting).
43
These similarities and differences between libel actions involving persons who are public officials and libel actions involving those circumstanced as were Butts and Walker, viewed in light of the principles of liability which are of general applicability in our society, lead us to the conclusion that libel actions of the present kind cannot be left entirely to state libel laws, unlimited by any overriding constitutional safeguard, but that the rigorous federal requirements of New York Times are not the only appropriate accommodation of the conflicting interests at stake. We consider and would hold that a 'public figure' who is not a public official may also recover damages for a defamatory falsehood whose substance makes substantial danger to reputation apparent, on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers. Cf. Sulzberger, Responsibility and Freedom, in Nelson, Freedom of the Press from Hamilton to the Warren Court 409, 412.
44
Nothing in this opinion is meant to affect the holdings in New York Times and its progeny, including our recent decision in Time, Inc. v. Hill.19
V.
45
Having set forth the standard by which we believe the constitutionality of the damage awards in these cases must be judged, we turn now, as the Court did in New York Times, to the question whether the evidence and findings below meet that standard. We find the standard satisfied in No. 37, Butts, and not satisfied by either the evidence or the findings in No. 150, Walker.
46
The Butts jury was instructed, in considering punitive damages, to assess 'the reliability, the nature of the sources of the defendant's information, its acceptance or rejection of the sources, and its care in checking upon assertions.' These considerations were said to be relevant to a determination whether defendant had proceeded with 'wanton and reckless indifference.' In this light we consider that the jury must have decided that the investigation undertaken by the Saturday Evening Post, upon which much evidence and argument was centered,20 was grossly inadequate in the circumstances. The impact of a jury instruction 'is not to be ascertained by merely considering isolated statements, but by taking into view all the instructions given and the tendencies of the proof in the case to which they could possibly be applied.' Seaboard Air Line R. v. Padgett, 236 U.S. 668, 672, 35 S.Ct. 481, 482, 59 L.Ed. 777.
47
This jury finding was found to be supported by the evidence by the trial judge and the majority in the Fifth Circuit. Given the extended history of the case, the amount of the evidence pointing to serious deficiencies in investigatory procedure, and the severe harm inflicted on Butts, we would not feel justified in ordering a retrial of the compensatory damage issue, either on the theory that this aspect of the case was submitted to the jury only under the issue of 'truth,'21 or on the very slim possibility that the jury finding regarding punitive damages might have been based on Curtis' attitude toward Butts rather than on Curtis' conduct.
48
The evidence showed that the Butts story was in no sense 'hot news' and the editors of the magazine recognized the need for a thorough investigation of the serious charges. Elementary precautions were, nevertheless, ignored. The Saturday Evening Post knew that Burnett had been placed on probation in connection with bad check charges, but proceeded to publish the story on the basis of his affidavit without substantial independent support. Burnett's notes were not even viewed by any of the magazine's personnel prior to publication. John Carmichael who was supposed to have been with Burnett when the phone call was overheard was not interviewed. No attempt was made to screen the films of the game to see if Burnett's information was accurate, and no attempt was made to find out whether Alabama had adjusted its plans after the alleged divulgence of information.
49
The Post writer assigned to the story was not a football expert and no attempt was made to check the story with someone knowledgeable in the sport. At trial such experts indicated that the information in the Burnett notes was either such that it would be evident to any opposing coach from game films regularly exchanged or valueless. Those assisting the Post writer in his investigation were already deeply involved in another libel action, based on a different article, brought against Curtis Publishing Co. by the Alabama coach and unlikely to be the source of a complete and objective investigation. The Saturday Evening Post was anxious to change its image by instituting a policy of 'sophisticated muckraking,' and the pressure to produce a successful expose might have induced a stretching of standards. In short, the evidence is ample to support a finding of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.
50
The situation in Walker is considerably different. There the trial court found the evidence insufficient to support more than a finding of even ordinary negligence and the Court of Civil Appeals supported the trial court's view of the evidence. Ordinarily we would, under the governing constitutional standard, reverse the decision below on the concurrent findings rule. Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S.27 1, 275, 69 S.Ct. 535, 93 L.Ed. 672. But, as in New York Times, we think it better to face for ourselves the question whether there is sufficient evidence to support the finding we would require.
51
In contrast to the Butts article, the dispatch which concerns us in Walker was news which required immediate dissemination. The Associated Press received the information from a correspondent who was present at the scene of the events and gave every indication of being trustworthy and competent. His dispatches in this instance with one minor exception, were internally consistent and would not have seemed unreasonable to one familiar with General Walker's prior publicized statements on the underlying controversy.22 Considering the necessity for rapid dissemination, nothing in this series of events gives the slightest hint of a severe departure from accepted publishing standards. We therefore conclude that General Walker should not be entitled to damages from the Associated Press.
VI.
52
We come finally to Curtis' contention that whether or not it can be required to compensate Butts for any injury it may have caused him, it cannot be subjected to an assessment for punitive damages limited only by the 'enlightened conscience' of the community. Curtis recognizes that the Constitution presents no general bar to the assessment of punitive damages in a civil case, Day v. Woodworth, 13 How. 363, 370—371, 14 L.Ed. 181, but contends that an unlimited punitive award against a magazine publisher constitutes an effective prior restraint by giving the jury the power to destroy the publisher's business. We cannot accept this reasoning. Publishers like Curtis engage in a wide variety of activities which may lead to tort suits where punitive damages are a possibility. To exempt a publisher, because of the nature of his calling, from an imposition generally exacted from other members of the community, would be to extend a protection not required by the constitutional guarantee. Associated Press v. National Labor Relations Board, 301 U.S. 103, 57 S.Ct. 650, 81 L.Ed. 953. We think the constitutional guarantee of freedom of speech and press is adequately served by judicial control over excessive jury verdicts, manifested in this instance by the trial court's remittitur, and by the general rule that a verdict based on jury prejudice cannot be sustained even when punitive damages are warranted. See, e.g., Minneapolis, St. P. & S.S.M.R. Co. v. Moquin, 283 U.S. 520, 521, 51 S.Ct. 501, 502, 75 L.Ed. 1243.
53
Despite this conclusion, it might be argued that an award of punitive damages cannot be justified constitutionally by the same degree of misconduct required to support a compensatory award. The usual rule in libel actions, and other state-created tort actions, is that a higher degree of fault is necessary to sustain a punitive imposition than a compensatory award. And it might be asserted that the need to compensate the injured plaintiff is not relevant to the issue of punitive damages in libel since an award of general damages compensates for any possible pecuniary and intangible harm. Thus the argument would be that the strong speech and press interest in publishing material onpu blic issues, which we have recognized as parallel to the interest in publishing political criticism present in New York Times, must be served by a limitation on punitive damages restricting them to cases of 'actual malice' as defined in New York Times and Garrison v. State of Louisiana, supra. We find the force of any such argument quite insufficient to overcome the compelling contrary considerations, and there is, moreover, nothing in any of our past cases which suggests that compensatory and punitive damages are subject to different constitutional standards of misconduct.
54
Where a publisher's departure from standards of press responsibility is severe enough to strip from him the constitutional protection our decision acknowledges, we think it entirely proper for the State to act not only for the protection of the individual injured but to safeguard all those similarly situated against like abuse. Moreover, punitive damages require a finding of 'ill will' under general libel law and it is not unjust that a publisher be forced to pay for the 'venting of his spleen' in a manner which does not meet even the minimum standards required for constitutional protection. Especially in those cases where circumstances outside the publication itself reduce its impact sufficiently to make a compensatory imposition an inordinately light burden, punitive damages serve a wholly legitimate purpose in the protection of individual reputation. We would hold, therefore, that misconduct sufficient to justify the award of compensatory damages also justifies the imposition of a punitive award, subject of course to the limitation that such award is not demonstrated to be founded on the mere prejudice of the jury. As we have already noted (supra, pp. 156-158) the case on punitive damages was put to the jury under instructions which satisfied the constitutional test we would apply in cases of this kind, and the evidence amply supported the jury's findings.23
55
The judgment of the Court of Appeals for the Fifth Circuit in No. 37 is affirmed. The judgment of the Texas Court of Civil Appeals in No. 150 is reversed and the case is remanded to that court for further proceedings not inconsistent with the opinions that have been filed herein by THE CHIEF JUSTICE, Mr. Justice BLACK, and Mr. Justice BRENNAN. It is so ordered.
56
Judgment of Court of Appeals for the Fifth Circuit in No. 37 affirmed; judgment of Texas Court of Civil Appeals in No. 150 reversed and case remanded with directions.
57
Mr. Chief Justice WARREN, concurring in the result.
58
While I agree with the results announced by Mr. Justice HARLAN in both of these cases, I find myself in disagreement with his stated reasons for reaching those results. Our difference stems from his departure from the teaching of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710 (1964), to which we both subscribed only three years ago.
I.
59
In the New York Times case, we held that a State cannot, consistently with the First and Fourteenth Amendments, award damages to a 'public official' for a defamatory falsehood relating to his official conduct unless the verdict is based on proof of 'actual malice'—that is, proof that the defamatory statement was made 'with knowledge that it was false or with reckless disregard of whether it was false or not.' 376 U.S., at 280, 84 S.Ct., at 726. he present cases involve not 'public officials,' but 'public figures' whose views and actions with respect to public issues and events are often of as much concern to the citizen as the attitudes and behavior of 'public officials' with respect to the same issues and events.
60
All of us agree that the basic considerations underlying the First Amendment require that some limitations be placed on the application of state libel laws to 'public figures' as well as 'public officials.' Similarly, the seven members of the Court who deem it necessary to pass upon the question agree that the respondents in these cases are 'public figures' for First Amendment purposes. Having reached this point, however, Mr. Justice HARLAN'S opinion departs from the standard of New York Times and substitutes in cases involving 'public figures' a standard that is based on 'highly unreasonable conduct' and is phrased in terms of 'extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers' (ante, p. 155). I cannot believe that a standard which is based on such an unusual and uncertain formulation could either guide a jury of laymen or afford the protection for speech and debate that is fundamental to our society and guaranteed by the First Amendment.
61
To me, differentiation between 'public figures' and 'public officials' and adoption of separate standards of proof for each have no basis in law, logic, or First Amendment policy. Increasingly in this country, the distinctions between governmental and private sectors are blurred. Since the depression of the 1930's and World War II there has been a rapid fusion of economic and political power, a merging of science, industry, and government, and a high degree of interaction between the intellectual, governmental, and business worlds. Depression, war, international tensions, national and international markets, and the surging growth of science and technology have precipitated national and international problems that demand national and international solutions. While these trends and events have occasioned a consolidation of governmental power, power has also become much more organized in what we have commonly considered to be the private sector. In many situations, policy determinations which traditionally were channeled through formal political institutions are now originated and implemented through a complex array of boards, committees, commissions, corporations, and associations, some only loosely connected with the Government. This blending of positions and power has also occurred in the case of individuals so that many who do not hold public office at the moment are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.
62
Viewed in this context, then, it is plain that although they are not subject to the restraints of the political process, 'public figures,' like 'public officials,' often play an influential role in ordering society. And surely as a class these 'public figures' have as ready access as 'public officials' to mass media of communication, both to influence policy and to counter criticism of their views and activities. Our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of 'public officials.' The fact that they are not amenable to the restraints of the political process only underscores the legitimate and substantial nature of the interest, since it means that public opinion may be the only instrument by which society can attempt to influence their conduct.
63
I therefore adhere to the New York Times standard in the case of 'public figures' as well as 'public officials.' It is a manageable standard, readily stated and understood, which also balances to a proper degree the legitimate interests traditionaly protected by the law of defamation. Its definition of 'actual malice' is not so restrictive that recovery is limited to situations where there is 'knowing falsehood' on the part of the publisher of false and defamatory matter. 'Reckless disregard' for the truth or falsity, measured by the conduct of the publisher, will also expose him to liability for publishing false material which is injurious to reputation. More significantly, however, the New York Times standard is an important safeguard for the rights of the press and public to inform and be informed on matters of legitimate interest. Evenly applied to cases involving 'public men'—whether they be 'public officials' or 'public figures'—it will afford the necessary insulation for the fundamental interests which the First Amendment was designed to protect.
II.
64
I have no difficulty in concluding that No. 150, Associated Press v. Walker, must be reversed since it is in clear conflict with New York Times. The constitutional defenses were properly raised and preserved by the petitioner. The trial judge expressly ruled that no showing of malice in any sense had been made, and he reversed an award of punitive damages for that reason. The seven members of this Court who reach the question agree with that conclusion, and all agree that the courts below erred in holding the First Amendment inapplicable. Under any reasoning, General Walker was a public man in whose public conduct society and the press had a legitimate and substantial interest.
III.
65
But No. 37, Curtis Publishing Co. v. Butts, presents an entirely different situation. There, no First Amendment defenses were raised by the petitioner until after the trial. Because of this failure and because the case was tried before our decision in New York Times, the trial judge did not instruct the jury in terms of the precise formulation we adopted. In connection with the issue of punitive damages, however, the trial judge did give an 'actual malice' instruction which invoked the elements we later held necessary in New York Times. He instructed the jury that it would have to find 'actual malice' before awarding punitive damages, and he continued by defining 'actual malice' as denoting 'wanton or reckless indifference or culpable negligence with regard to the rights of others' and as including notions of 'ill will, spite, hatred and an intent to injure one.' Under the Georgia law of defamation which governed the case, the jury was also specifically required to find that the defamatory statements were false before it could award any damages, and it was so instructed. With the jury's attention thus focused on this threshold requirement of falsity, the references in the instructions to wanton or reckless indifference and culpable negligence most probably resulted in a verdict based on the requirement of reckless disregard for the truth of which we spoke in New York Times.1 Although the 'actual malice' instructions were not also given in connection with the compensatory damage issue, it is difficult to conceive how petitioner could have been prejudiced by that failure in view of the fact that the jury guided by 'actual malice' instructions, awarded $3,000,000 in punitive damages.2
66
Unquestionably, in cases tried after our decision in New York Times we should require strict compliance with the standard we established. We should not, however, be so inflexible in judging cases tried prior thereto, especially when, as here, the trial judge—unaided by advice or objections from counsel—recognized the essential principle and conformed with it to a substantial degree. Moreover, after the New York Times rule was brought to the trial judge's attention in a post-trial motion, he reviewed the record in light of that precise standard and held that the jury verdict should not be disturbed since 'there was ample evidence from which a jury could have concluded that there was reckless disregard by the (petitioner) of whether the article was false or not.'
67
An additional factor leads me to the conclusion that we should not insist on the financial and emotional expenses of a retrial here merely because the trial judge's instructions were not given in the precise terms of the present constitutional standard.3 That factor, to which I briefly adverted above, was the choice of the petitioner in this case to raise only truth as a defense and to omit in its pleadings and at the trial any reference to possible First Amendment defenses or even to the conditional privilege provided by Georgia law for '(c)omments upon the acts of public men in their public capacity and with reference thereto.'4 I use the word 'choice' in this connection, because the facts lead me, as they did the Court of Appeals, to the firm conclusion that the omissions were deliberate. Although this trial occurred before our decision in New York Times, we had granted certiorari to review that case even before the complaint here was filed.5 The Alabama law firm which had represented the New York Times in the state courts was involved in the trial of this case. Lead counsel in the cases conferred periodically, and one of the members of the Alabama law firm referred to above sat at the counsel table throughout this trial. The same Alabama law firm was retained to represent petitioner in a lawsuit filed by Coach Paul Bryant, who was also libeled by the magazine article here in question. First Amendment defenses were raised both at the trial of the New York Times case and by the pleadings in the Bryant lawsuit which was settled for a substantial sum of money. But counsel did not raise such defenses here. Given the importance of this case to petitioner and the interplay between overlapping counsel aligned on the same sides of related lawsuits, I can only conclude that tactical or public relations considerations explain the failure here to defend on First Amendment grounds.
IV.
68
Satisfied, as I am, that under the circumstances of the Butts case no retrial should be ordered merely because of the instructions, I turn now to the final duty which this Court has when violations of fundamental constitutional principles are alleged. We must review the evidence to ascertain whether the judgment can stand consistently with those principles. New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 728 (1964); Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1341, 2 L.Ed.2d 1460 (1958).
69
The petitioner in this case is a major factor in the publishing business. Among its publications is the Saturday Evening Post which published the defamatory falsehoods here in question. Apparently because of declining advertising revenues, an editorial decision was made to 'change the image' of the Saturday Evening Post with the hope that circulation and advertising revenues would thereby be increased. The starting point for this change of image was an announcement that the magazine would embark upon a program of 'sophisticated muckraking,'6 designed to 'provoke people, make them mad.'
70
Shortly thereafter, and as an apparent implementation of the new policy, the Saturday Evening Post purchased the rights to the article which formed the subject matter of this case. The slipshod and sketchy investigatory techniques employed to check the veracity of the source and the inferences to be drawn from the few facts believed to be true are detailed at length in the opinion of Mr. Justice HARLAN. Suffice it to say that little investigative effort was expended initially, and no additional inquiries were made even after the editors were notified by respondent and his daughter that the account, to be published was absolutely untrue. Instead, the Saturday Evening Post proceeded on its reckless course with full knowledge of the harm that would likely result from publication of the article. This knowledge was signaled by the statements at the conclusion of the article that 'Wally Butts will never help any football team again' and 'careers will be ruined, that is sure.'
71
I am satisfied that the evidence here discloses that degree of reckless disregard for the truth of which we spoke in New York Times and Garrison. Freedom of the press under the First Amendment does not include absolute license to destroy lives or careers.
72
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, concurring in the result in No. 150, and dissenting in No. 37.
73
I concur in reversal of the judgment in No. 150, Associated Press v. Walker, based on the grounds and reasons stated in Parts I and II of THE CHIEF JUSTICE's opinion. I do this, however, as in Time, Inc. v. Hill, 385 U.S. 374, 398, 'in order for the Court to be able at this time to agree on (a disposition of) this important case based on the prevailing constitutional doctrine expressed in New York Times Co. v. Sullivan, 376 U.S. 254. (THE CHIEF JUSTICE's) * * * opinion (would decide) the case in accordance with this doctrine, to which the majority adhere. In agreeing to * * * (that) 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 Tims Co. v. Sullivan, 376 U.S. at 293 (concurring opinion); Rosenblatt v. Baer, 383 U.S. 75, 94 (concurring and dissenting opinion).'
74
I would reverse the judgment in No. 37 for the reasons given in my concurring opinion in New York Times Co. v. Sullivan, 376 U.S. 254, 293, 84 S.Ct. 710, 733 and my concurring and dissenting opinion in Rosenblatt v. Baer, 383 U.S. 75, 94, 86 S.Ct. 669, 680, but wish to add a few words.
75
These cases illustrate, I think, the accuracy of my prior predictions that the New York Times constitutional rule concerning libel is wholly inadequate to save the press from being destroyed by libel judgments. Here the Court reverses the case of Associated Press v. Walker, but affirms the judgment of Curtis Publishing Co. v. Butts. The main reason for this quite contradictory action, so far as I can determine, is that the Court looks at the facts in both cases as though it were a jury and reaches the conclusion that the Saturday Evening Post, in writing about Butts, was so abusive that its article is more of a libel at the constitutional level than is the one by the Associated Press. That seems a strange way to erect a constitutional standard for libel cases. If this precedent is followed, it means that we must in all libel cases hereafter weigh the facts and hold that all papers and magazines guilty of gross writing or reporting are constitutionally liable, while they are not if the quality of the reporting is approved by a majority of us. In the final analysis, what we do in these circumstances is to review the factual questions in cases decided by juries—a review which is a flat violation of the Seventh Amendment.
76
It strikes me that the Court is getting itself in the same quagmire in the field of libel in which it is now helplessly struggling in the field of obscenity. No one, including this Court, can know what is and what is not constitutionally obscene or libelous under this Court's rulings. Today the Court will not give the First Amendment its natural and obvious meaning by holding that a law which seriously menaces the very life of press freedom violates the First Amendment. In fact, the Court is suggesting various experimental expedients in libel cases, all of which boil down to a determination of how offensive to this Court a particular libel judgment may be, either because of its immense size or because the Court does not like the way an alleged libelee was treated. Again I suggest (see Time, Inc. v. Hill, 385 U.S. 374, 399, 87 S.Ct. 534, 548) that we are rapidly but surely getting ourselves in the dilemma we found ourselves in when we were compelled to overrule the ill-starred case of Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595,* in order that the state courts of the country might be able to determine with some degree of certainty when an indigent person was entitled to the benefit of a lawyer and avoid the spawning of hundreds of habeas corpus cases that finally raised questions that a lawyer could and would have raised at the trial.
77
I think it is time for this Court to abandon New York Times Co. v. Sullivan and adopt the rule to the effect that the First Amendment was intended to leave the press free from the harassment of libel judgments.
78
Mr. Justice BRENNAN, with whom Mr. Justice WHITE joins, concurring in the result in No. 150, and dissenting in No. 37.
79
I join Parts I and II of the opinion of THE CHIEF JUSTICE and the disposition in No. 150, Associated Press v. Walker.
80
In No. 37, Curtis Publishing Co. v. Butts, insofar as THE CHIEF JUSTICE'S opinion demonstrates that the evidence unmistakably would support a judgment for Butts under the New York Times standard, I agree. I would, however, remand for a new trial since the charge to the jury did not comport with that standard.1 The charge on compensatory damages directed that the jury find liability on a finding of mere false hood. And the trial court stated that punitive damagesmi ght be awarded on a finding of 'actual malice' which it defined to encompass 'the notion of ill will, spite, hatred and an intent to injure one,' and also to denote 'a wanton or reckless indifference or culpable negligence with regard to the rights of others.' The court detailed some factors the jury could consider in applying this standard. It said, for example, that '(a) publication may be so extravagant in its denunciation and so vituperative in its character as to justify an inference of malice,' and that 'proof that the plaintiff did demand a retraction but that the defendant failed to retract the article may be considered by you on the question of punitive damages.' But '(d)ebate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth.' Garrison v. State of Louisiana, 379 U.S. 64, 73, 85 S.Ct. 209, 215. The 'good motives' of the publisher can be no more relevant in the context of 'public men' than in the context of criticism of 'public officials.' See Garrison, supra. The court added that the Post could show in mitigation of punitive damages that 'it in good faith relied upon certain matters which had come to its attention.' This makes crystal clear that the standard announced authorized the jury to award punitive damages even though it found that the Post had in good faith relied on matters which had come to its attention. The charge undoubtedly fails to comport with New York Times.2
81
That the evidence might support a verdict under New York Times cannot justify our taking from the jury the function of determining, under proper instructions, whether the New York Times standard has been met. The extent of this Court's role in reviewing the facts, in a case such as this, is to ascertain whether there is evidence by which a jury could reasonably find liability under the constitutionally required instructions. See New York Times Co. v. Sullivan, 376 U.S. 254, 284—292, 84 S.Ct. 710, 728—732; Time, Inc. v. Hill, 385 U.S. 374, 391—394, 87 S.Ct. 534, 544—545. When, as in this case, such evidence appears, the proper disposition in this federal case is to reverse and remand with direction for a new trial. See Time, Inc. v. Hill, supra.
**
Five members of the Court, while concurring in the result reached in No. 150, would rest decision on grounds other than those stated in this opinion. See separate opinions of THE CHIEF JUSTICE (post, p. 162), of Mr. Justice BLACK (post, p. 170), and of Mr. Justice BRENNAN (post, p. 172).
1
See also Afro-American Publishing Co. v. Jaffe, 125 U.S.App.D.C. 70, 366 F.2d 649; Washington Post Co. v. Keogh, 125 U.S.App.D.C. 32, 365 F.2d 965; Pauling v. Globe-Democrat Publishing Co., 8 Cir., 362 F.2d 188; Pape v. Time, Inc., 7 Cir., 354 F.2d 558; Pauling v. News Syndicate Co., Inc., 2 Cir., 335 F.2d 659; Fignole v. Curtis Publishing Co., D.C., 247 F.Supp. 595; Walker v. Courier-Journal & Louisville Times Co., D.C., 246 F.Supp. 231; United Medical Labs v. CBS, Inc., 258 F.Supp. 735; Klahr v. Winterble, 4 Ariz.App. 158, 418 P.2d 404; Walker v. Associated Press, 417 P.2d 486 (Colo.); Powell v. Monitor Publishing Co., Inc., 107 N.H. 83, 217 A.2d 193; Eadie v. Pole, 91 N.J.Super. 504, 221 A.2d 547; State v. Browne, 86 N.J.Supper. 217, 206 A.2d 591; People v. Mager, 25 A.D.2d 363, 269 N.Y.S.2d 848; Gilberg v. Goffi, 21 A.D.2d 517, 251 N.Y.S.2d 823; Krutech v. Schimmel, 50 Misc.2d 1052, 272 N.Y.S.2d 261; Cabin v. Community Newspapers, Inc., 50 Misc.2d 574, 270 N.Y.S.2d 913; Pauling v. National Review, 49 Misc.2d 975, 269 N.Y.S.2d 11; Block v. Benton, 44 Misc.2d 1053, 255 N.Y.S.2d 767; Fegley v. Morthimer, 204 Pa.Super. 54, 202 A.2d 125; Tucker v. Kilgore, 388 S.W.2d 112 (Ky.).
2
In Allen v. Regents of the University System of Georgia, 304 U.S. 439, 58 S.Ct. 980, 82 L.Ed. 1448, this Court described the Athletic Association as a body carrying on 'a business comparable in all essentials to those usually conducted by private owners'. Id., at 451, 58 S.Ct., at 985. Section 32—153 of the Georgia Code specifically provides that athletic associations are not to be considered agencies of the State.
3
Actual malice was defined by the charge as encompassing 'the notion of ill will, spite, hatred and an intent to injure one. Malice also denotes a wanton or reckless indifference or culpable negligence with regard to the rights of others.' The jury was told that whether 'actual malice or wanton or reckless indifference has been established must be determined from all of the evidence in the case.' The trial court then directed the jury's attention to the circumstances of preparation. The impact of the charge is considered in more detail at 156-158, infra.
4
Two particular statements were at issue, the remark that 'Walker assumed command of the crowd,' and the accusation that Walker led a charge against the marshals.
5
See Tehan v. United States ex rel. Shott, 382 U.S. 406, 409, n. 3, 86 S.Ct. 459, 461, 15 L.Ed.2d 453; Linkletter v. Walker, 381 U.S. 618, 622—629, 85 S.Ct. 1731, 1733—1739, 14 L.Ed.2d 601; Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106; White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193.
6
See also Ackermann v. United States, 340 U.S. 193, 198, 71 S.Ct. 209, 211, 95 L.Ed. 207.
7
In Beauharnais v. People of State of Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919, the Court had upheld an Illinois group libel statute but the majority had warned that "While this Court sits' it retains and exercises authority to nullify action which encroaches on freedom of utterance under the guise of punishing libel.' Id., at 263—264, 72 S.Ct., at 734. There were also four vigorous dissenters to the holding in that case. An article appearing in the June 1962 New York University Law Review had quoted Mr. Justice Black as believing that 'there should be no libel or defamation law in the United States * * *.' Cahn, Justice Black and First Amendment 'Absolutes': A Public Interview, 37 N.Y.U.L.Rev. 549, 557.
8
In Robertson v. Baldwin, 165 U.S. 275, 281, 17 S.Ct. 326, 329, 41 L.Ed. 715, the Court said: 'Thus, the freedom of speech and of the press (article 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation * * *.' That sentiment was repeated in a number of cases including Beauharnais v. People of State of Illinois, supra, n. 7. See Near v. State of Minnesota, 283 U.S. 697, 715, 51 S.Ct. 625, 630, 75 L.Ed. 1357; Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031.
9
See, e.g., Sweeney v. Patterson, 76 U.S.App.D.C. 23, 128 F.2d 457; Hendrix v. Mobile Register, 202 Ala. 616, 81 So. 558.
10
Even after our decision in New York Times was before him, the trial judge held it inapplicable. It is almost certain that he would have rebuffed any effort to interpose general constitutional defenses at the time of trial. See Comment, Waiver of a Previously Unrecognized Defense: Must Lawyers Be Seers?, 114 U.Pa.L.Rev. 451.
11
The majority opinion in Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, was limited to the consideration of nondefamatory matter. Id., at 391, 87 S.Ct., at 544.
12
Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (Holmes, J.); Abrams v. United States, 250 U.S. 616, 624, 40 S.Ct. 17, 20, 63 L.Ed. 1173 (Holmes, J., dissenting); Whitney v. People of State of California, 274 U.S. 357, 372, 47 S.Ct. 641, 647, 71 L.Ed. 1095 (Brandeis, J., concurring).
13
See Levy, Legacy of Suppression. The phrase is from the Court's opinion in Time, Inc. v. Hill, supra, 385 U.S., at 389, 87 S.Ct. at 543.
14
E.g., 48 Stat. 82, as amended, 15 U.S.C. § 77k (penalizing negligent misstatement).
15
18 U.S.C. § 1341.
16
See Traylor Engineering & Mfg. Co. v. National Container Corp., 6 Terry 143, 45 Del. 143, 70 A.2d 9; Restatement, Torts § 525 (deceit); Nash v. Minnesota Title Ins. & Trust Co., 163 Mass. 574, 40 N.E. 1039, 28 L.R.A. 753 (negligent misrepresentation).
17
See 1 Harper & James, The Law of Torts § 5.20.
18
Some privileges such as the one pertaining to reports of judicial proceedings are recognized as absolute. Others, such as the fair-comment privilege are recognized only as conditional privileges and may be vitiated by proof of actual malice. See generally Prosser, The Law of Torts §§ 109, 110.
19
Nor does anything we have said touch, in any way, libel or other tort actions not involving public figures or matters of public interest.
20
Counsel for Butts continually pressed upon the jury in argument that the defendant had failed to exercise a minimum of care. He did not seriously contend that the Saturday Evening Post was actuatd by pre-existing animosity toward Butts. Arguing that the misquotations which were shown to be present were proof of malice he stated: 'I say that is not fair journalism; I say that is not true, careful reporting.' After reviewing the failure of Curtis to interview Carmichael (see p. 157, infra) or to check the game films, he asked the jury: 'Again, is that good reporting? Is that what the field or the profession of journalism owes you and owes me * * * when it is getting ready to write an article which it knows and which it states therein that it is going to ruin us * * *.' The gist of Butts' contention on 'actual malice' was that Curtis had been anxious to publish an expose and had thus wantonly and recklessly seized on a questionable affidavit from Burnett. It is this theory which we feel that the jury must have accepted in awarding punitive damages.
21
It is inconceivable that the jury might have treated the 'investigatory' evidence differently if it had been presented with respect to compensatory damages rather than with regard to punitive damages.
22
On September 26, 1962, Walker had made a statement on radio station KWKH at Shreveport, Louisiana, urging people to '(r)ise to a stand beside Governor Ross Barnett at Jackson, Mississippi.' He contended that the people had 'talked, listened and been pushed around far too much * * *.' He promised that he would 'be there,' on 'the right side.' The next morning in a television appearance in Dallas he repeated the same sentiments, and he set out his views once again from New Orleans on the evening of September 28, 1962. On September 29, 1962, Walker arrived in Jackson, Mississippi, and held another press and television conference in which he called for 'violent vocal protest.' On the afternoon of September 30, 1962, Walker held a final press conference at which he again urged defiance of court orders and federal power.
23
It should also be noted that prior to publication the Saturday Evening Post had been notified both by Butts and his daughter that the material about to be printed was false. Despite these warnings, and the fact that no member of the staff had ever even seen Burnett's crucial notes, no further efforts at investigation were undertaken prior to publication. It might indeed be argued that this conduct would have sufficed, under proper instructions, to satisfy even the 'actual malice' standard of New York Times, the notice to the Saturday Evening Post being considered as furnishing the necessary 'mental element.' New York Times, supra, 376 U.S., at 287, 84 S.Ct., at 729.
1
We held unconstitutional in Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209 (1964), a criminal defamation statute which authorized conviction on proof that a defamatory statement had been motivated by ill will. The statute did not require that the defamatory statement be false to sustain such a conviction.
2
In the New York Times case, 'actual malice' instructions were given in connection with punitive damages. However, we noted: 'While Alabama law apparently requires proof of actual malice for an award of punitive damages, where general damages are concerned malice is 'presumed.' Such a presumption is inconsistent with the federal rule. * * * Since the trial judge did not instruct the jury to differentiate between general and punitive damages, it may be that the verdict was wholly an award of one or the other. But it is impossible to know, in view of the general verdict returned. Because of this uncertainty, the judgment must be reversed and the case remanded.' 376 U.S., at 283—284, 84 S.Ct., at 727. (Emphasis added.)
The jury in the present case was required to separate compensatory and punitive damages.
3
Cf. Time, Inc. v. Hill, 385 U.S. 374, 411, 87 S.Ct. 534, 554 (1967) (dissenting opinion of Mr. Justice Fortas).
4
Ga.Code Ann. § 105—709(6) provides:
'Privileged communications.—The following are deemed privileged communications:
'6. Comments upon the acts of public men in their public capacity and with reference thereto.'
This privilege is qualified by Ga.Code Ann. § 105—710, which provides:
'Malicious use of privilege.—In every case of privileged communications, if the privilege is used merely as a cloak for venting private malice, and not bona fide in promotion of the object for which the privilege is granted, the party defamed shall have a right of action.'
5
Certiorari was granted in New York Times Co. v. Sullivan on January 7, 1963, 371 U.S. 946, 83 S.Ct. 510, 9 L.Ed.2d 496. The complaint in this case was filed approximately 2 1/2 months later, on March 25, 1963. Counsel here could not have anticipated the precise standard we announced in New York Times. In the Bryant lawui t and, of course, in the New York Times case itself, counsel did, however, raise general First Amendment defenses. No reference whatever to the First Amendment was made by defense counsel in the trial of this case.
6
Webster's New International Dictionary (2d ed., unabr.), p. 1606, reports the source of the term 'muckrake' as follows:
'On April 14, 1906, President Roosevelt delivered a speech in which he used the term muckrake in attacking the practice of making sweeping and unjust charges of corruption against public men and corporations * * *.'
Roget's International Thesaurus § 934(3) lists the following as synonyms: muckrake, throw mud at, throw or fling dirt at, drag through the mud and bespatter.
*
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.
1
For the reasons expressed in the opinion of Mr. Justice HARLAN I agree that petitioner did not waive his contentions under New York Times.
2
The statement by the trial court that '(m)alice also denotes a wanton or reckless indifference or culpable negligence with regard to the rights of others' could reasonably have been regarded by the jury to relate not to the truth or falsity of the matter, but to the Post's attitude toward Butts' reputation, akin to the spite and ill will in which terms the court had just defined 'malice.' See Time, Inc. v. Hill, 385 U.S. 374, 396, n. 12, 87 S.Ct. 534, 546.
| 23
|
388 U.S. 218
87 S.Ct. 1926
18 L.Ed.2d 1149
UNITED STATES, Petitioner,v.Billy Joe WADE.
No. 334.
Argued Feb. 16, 1967.
Decided June 12, 1967.
Beatrice Rosenberg, Washington, D.C., for petitioner.
Weldon Holcomb, Tyler, Tex., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The question here is whether courtroom identifications of an accused at trial are to be excluded from evidence because the accused was exhibited to the witnesses before trial at a post-indictment lineup conducted for identification purposes without notice to and in the absence of the accused's appointed counsel.
2
The federally insured bank in Eustace, Texas, was robbed on September 21, 1964. A man with a small strip of tape on each side of his face entered the bank, pointed a pistol at the female cashier and the vice president, the only persons in the bank at the time, and forced them to fill a pillowcase with the bank's money. The man then drove away with an accomplice who had been waiting in a stolen car outside the bank. On March 23, 1965, an indictment was returned against respondent, Wade, and two others for conspiring to rob the bank, and against Wade and the accomplice for the robbery itself. Wade was arrested on April 2, and counsel was appointed to represent him on April 26. Fifteen days later an FBI agent, without notice to Wade's lawyer, arranged to have the two bank employees observe a lineup made up of Wade and five or six other prisoners and conducted in a courtroom of the local county courthouse. Each person in the line wore strips of tape such as allegedly worn by the robber and upon direction each said something like 'put the money in the bag,' the words allegedly uttered by the robber. Both bank employees identified Wade in the lineup as the bank robber.
3
At trial the two employees, when asked on direct examination if the robber was in the courtroom, pointed to Wade. The prior lineup identification was then elicited from both employees on cross-examination. At the close of testimony, Wade's counsel moved for a judgment of acquittal or, alternatively, to strike the bank officials' courtroom identifications on the ground that conduct of the lineup, without notice to and in the absence of his appointed counsel, violated his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to the assistance of counsel. The motion was denied, and Wade was convicted. The Court of Appeals for the Fifth Circuit reversed the conviction and ordered a new trial at which the in-court identification evidence was to be excluded, holding that, though the lineup did not violate Wade's Fifth Amendment rights, 'the lineup, held as it was, in the absence of counsel, already chosen to represent appellant, was a violation of his Sixth Amendment rights * * *.' 358 F.2d 557, 560. We granted certiorari, 385 U.S. 811, 87 S.Ct. 81, 17 L.Ed.2d 53, and set the case for oral argument with No. 223, Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and No. 254, Stovall v. Denno, 386 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, which present similar questions. We reverse the judgment of the Court of Appeals and remand to that court with direction to enter a new judgment vacating the conviction and remanding the case to the District Court for further proceedings consistent with this opinion.
I.
4
Neither the lineup itself nor anything shown by this record that Wade was required to do in the lineup violated his privilege against self-incrimination. We have only recently reaffirmed that the pivilege 'pot ects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature * * *.' Schmerber v. State of California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908. We there held that compelling a suspect to submit to a withdrawal of a sample of his blood for analysis for alcohol content and the admission in evidence of the analysis report were not compulsion to those ends. That holding was supported by the opinion in Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021, in which case a question arose as to whether a blouse belonged to the defendant. A witness testified at trial that the defendant put on the blouse and it had fit him. The defendant argued that the admission of the testimony was error because compelling him to put on the blouse was a violation of his privilege. The Court rejected the claim as 'an extravagant extension of the Fifth Amendment,' Mr. Justice Holmes saying for the Court:
5
'(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.' 218 U.S., at 252—253, 31 S.Ct. at 6.
6
The Court in Holt, however, put aside any constitutional questions which might be involved in compelling an accused, as here, to exhibit himself before victims of or witnesses to an alleged crime; the Court stated, 'we need now consider how far a court would go in compelling a man to exhibit himself.' Id., at 253, 31 S.Ct. at 6.1
7
We have no doubt that compelling the accused merely to exhibit his person for observation by a prosecution witness prior to trial involves no compulsion of the accused to give evidence having testimonial significance. It is compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have. It is no different from compelling Schmerber to provide a blood sample or Holt to wear the blouse, and, as in those instances, is not within the cover of the privilege. Similarly, compelling Wade to speak within hearing distance of the witnesses, even to utter words purportedly uttered by the robber, was not compulsion to utter statements of a 'testimonial' nature; he was required to use his voice as an identifying physical characteristic, not to speak his guilt. We held in Schmerber, supra, 384 U.S. at 761, 86 S.Ct. at 1830, that the distinction to be drawn under the Fifth Amendment privilege against self-incrimination is one between an accused's 'communications' in whatever form, vocal or physical, and 'compulsion which makes a suspect or accused the source of 'real or physical evidence," Schmerber, supra, at 764, 86 S.Ct. at 1832. We recognized that 'both federal and state courts have usually held that * * * (the privilege) offers no protection against compulsion to submit to fingerprinting, photography, 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.' Id., at 764, 86 S.Ct. at 1832. None of these activities becomes testimonial within the scope of the privilege because required of the accused in a pretrial lineup.
8
Moreover, it deserves emphasis that this case presents no question of the admissibility in evidence of anything Wade said or did at the lineup which implicates his privilege. The Government offered no suc e vidence as part of its case, and what came out about the lineup proceedings on Wade's cross-examination of the bank employees involved no violation of Wade's privilege.
II.
9
The fact that the lineup involved no violation of Wade's privilege against self-incrimination does not, however, dispose of his contention that the courtroom identifications should have been excluded because the lineup was conducted without notice to and in the absence of his counsel. Our rejection of the right to counsel claim in Schmerber rested on our conclusion in that case that '(n)o issue of counsel's ability to assist petitioner in respect of any rights he did possess is presented.' 384 U.S., at 766, 86 S.Ct. at 1833. In contrast, in this case it is urged that the assistance of counsel at the lineup was indispensable to protect Wade's most basic right as a criminal defendant—his right to a fair trial at which the witnesses against him might be meaningfully cross-examined.
10
The Framers of the Bill of Rights envisaged a broader role for counsel than under the practice then prevailing in England of merely advising his client in 'matters of law,' and eschewing any responsibility for 'matters of fact.'2 The constitutions in at least 11 of the 13 States expressly or impliedly abolished this distinction. Powell v. State of Alabama, 287 U.S. 45, 60—65, 53 S.Ct. 55, 60—62, 77 L.Ed. 158; Note, 73 Yale L.J. 1000, 1030—1033 (1964). 'Though the colonial provisions about counsel were in accord on few things, they agreed on the necessity of abolishing the facts-law distinction; the colonists appreciated that if a defendant were forced to stand alone against the state, his case was foredoomed.' 73 Yale L.J., supra, at 1033—1034. This background is reflected in the scope given by our decisions to the Sixth Amendment's guarantee to an accused of the assistance of counsel for his defense. When the Bill of Rights was adopted, there were no organized police forces as we know them today.3 The accused confronted the prosecutor and the witnesses against him, and the evidence was marshalled, largely at the trial itself. In contrast, today's law enforcement machinery involves critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused's fate and reduce the trial itself to a mere formality. In recognition of these realities of modern criminal prosecution, our cases have construed the Sixth Amendment guarantee to apply to 'critical' stages of the proceedings. The guarantee reads: 'In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence.' (Emphasis supplied.) The plain wording of this guarantee thus encompasses counsel's assistance whenever necessary to assure a meaningful 'defence.'
11
As early as Powell v. State of Alabama, supra, we recognized that the period from arraignment to trial was 'perhaps the most critical period of the proceedings * * *,' id., at 57, 53 S.Ct. at 59, during which the accused 'requires the guiding hand of counsel * * *,' id., at 69, 53 S.Ct. at 64 if the guarantee is not to prove an empty right. That principle has since been applied to require the assistance of counsel at the type of arraignment—for example, that provided by Alabama—where certain rights might be sacrificed or lost: 'What happens there may affect the whole trial. Available defenses may be irretrievably lost, if not then and there asserted * * *.' Hamilton v. State of Alabama, 368 U.S. 52, 54, 82 S.Ct. 157, 159, 7 L.Ed.2d 114. See White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193. The principle was also applied in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, where we held thatin criminating statements of the defendant should have been excluded from evidence when it appeared that they were overheard by federal agents who, without notice to the defendant's lawyer, arranged a meeting between the defendant and an accomplice turned informant. We said, quoting a concurring opinion in Spano v. People of State of New York, 360 U.S. 315, 326, 79 S.Ct. 1202, 1209, 3 L.Ed.2d 1265, that '(a)nything less * * * might deny a defendant 'effective representation by counsel at the only stage when legal aid and advice would help him." 377 U.S., at 204, 84 S.Ct. at 1202.
12
In Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, we drew upon the rationale of Hamilton and Massiah in holding that the right to counsel was guaranteed at the point where the accused, prior to arraignment, was subjected to secret interrogation despite repeated requests to see his lawyer. We again noted the necessity of counsel's presence if the accused was to have a fair opportunity to present a defense at the trial itself:
13
'The rule sought by the State here, however, would make the trial no more than an appeal from the interrogation; and the 'right to use counsel at the formal trial (would be) a very hollow thing (if), for all practical purposes, the conviction is already assured by pretrial examination'. * * * 'One can imagine a cynical prosecutor saying: 'Let them have the most illustrious counsel, now. They can't escape the noose. There is nothing that counsel can do for them at the trial.'" 378 U.S., at 487—488, 84 S.Ct. at 1763.
14
Finally in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the rules established for custodial interrogation included the right to the presence of counsel. The result was rested on our finding that this and the other rules were necessary to safeguard the privilege against self-incrimination from being jeopardized by such interrogation.
15
Of course, nothing decided or said in the opinions in the cited cases links the right to counsel only to protection of Fifth Amendment rights. Rather those decisions 'no more than (reflect) a constitutional principle established as long ago as Powell v. Alabama * * *.' Massiah v. United States, supra, 377 U.S. at 205, 84 S.Ct. at 1202. It is central to that principle that in addition to counsel's presence at trial,4 the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial.5 The security of that right is as much the aim of the right to counsel as it is of the other guarantees of the Sixth Amendment—the right of the accused to a speedy and public trial by an impartial jury, his right to be informed of the nature and cause of the accusation, and his right to be confronted with the witnesses against him and to have compulsory process for obtaining witnesses in his favor. The presence of counsel at such critical confrontations, as at the trial itself, operates to assure that the accused's interests will be protected consistently with our adversary theory of criminal prosecution. Cf. Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923.
16
In sum, the principle of Powell v. Alabama and succeeding cases requires that we scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant's basic right to a far trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself. It calls upon us to analyze whether potential substantial prejudice to defendant's rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.
III.
17
The Government characterizes the lineup as a mere preparatory step in the gathering of the prosecution's evidence, not different for Sixth Amendment purposes—from various other preparatory steps, such as systematized or scientific analyzing of the accused's fingerprints, blood sample, clothing, hair, and the like. We think there are differences which preclude such stages being characterized as critical stages at which the accused has the right to the presence of his counsel. Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government's case at trial through the ordinary processes of cross-examination of the Government's expert witnesses and the presentation of the evidence of his own experts. The denial of a right to have his counsel present at such analyses does not therefore violate the Sixth Amendment; they are not critical stages since there is minimal risk that his counsel's absence at such stages might derogate from his right to a fair trial.
IV.
18
But the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.6 Mr. Justice Frankfurter once said: 'What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials. These instances are recent—not due to the brutalities of ancient criminal procedure.' The Case of Sacco and Vanzetti 30 (1927). A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. A commentator has observed that '(t)he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor—perhaps it is responsible for more such errors than all other factors combined.' Wall, Eye-Witness Identification in Criminal Cases 26. Suggestion can be created intentionally or unintentionally in many subtle ways.7 And the dangers for the suspect are particularly grave when the witness' opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest.
19
Moreover, '(i)t is a matter of common experience that, once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial.'8
20
The pretrial confrontation for purpose of identification may take the form of a lineup, also known as an 'identification parade' or 'showup,' as in the present case, or presentation of the suspect alone to the witness, as in Stovall v. Denno, supra. It is obvious that risks of suggestion attend either form of confrontation and increase the dangers inhering in eyewitness identification.9 But as is the case with secret interrogations, there is serious difficulty in depicting what transpires at lineups and other forms of identification confrontations. 'Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on * * *.' Miranda v. State of Arizona, supra, 384 U.S. at 448, 86 S.Ct. at 1614. For the same reasons, the defense can seldom reconstruct the manner and mode of lineup identification for judge or jury at trial. Those participating in a lineup with the accused may often be police officers;10 in any event, the participants' names are rarely recorded or divulged at trial.11 The impediments to an objective observation are increased when the victim is the witness. Lineups are prevalent in rape and robbery prosecutions and present a particular hazard that a victim's understandable outrage may excite vengeful or spiteful motives.12 In any event, neither witnesses nor lineup participants are apt to be alert for conditions prejudicial to the suspect. And if they were, it would likely be of scant benefit to the suspect since neither witnesses nor lineup participants are likely to be schooled in the detection of suggestive influences.13 Improper influences may go undetected by a suspect, guilty or not, who experiences the emotional tension which we might expect in one being confronted with potential accusers.14 Even when he does observe abuse, if he has a criminal record he may be reluctant to take the stand and open up the admission of prior convictions. Moreover any protestations by the suspect of the fairness of the lineup made at trial are likely to be in vain;15 the jury's choice is between the accused's unsupported version and that of the police officers present.16 In short, the accused's inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity meaningfully to attack the credibility of the witness' courtroom identification.
21
What facts have been disclosed in specific cases about the conduct of pretrial confrontations for identification illustrate both the potential for substantial prejudice to the accused at that stage and the need for its revelation at trial. A commentator provides some striking examples:
22
'In a Canadian case * * * the defendant had been picked out of a lineup of six men, of which he was the only Oriental. On other cases, a black-haired suspect was placed among a group of light-haired persons, tall suspects have been made to stand with short nonsuspects, and, in a case where the perpetrator of the crime was known to be a youth, a suspect under twenty was placed in a lineup with five other persons, all of whom were forty or over.'17
23
Similarly state reports, in the course of describing prior identifications admitted as evidence of guilt, reveal numerous instances of suggestive procedures, for example, that all in the lineup but the suspect were known to the identifying witness,18 that the other participants in a lineup were grossly dissimilar in appearance to the suspect,19 that only the suspect was required to wear distinctive clothing which the culprit allegedly wore,20 that the witness is told by the police that they have caught the culprit after which the defendant is brought before the witness alone or is viewed in jail,21 that the suspect is pointed out before or during a lineup,22 and that the participants in the lineup are asked to try on an article of clothing which fits only the suspect.23
24
The potential for improper influence is illustrated by the circumstances, insofar as they appear, surrounding the prior identifications in the three cases we decide today. In the present case, the testimony of the identifying witnesses elicited on cross-examination revealed that those witnesses were taken to the courthouse and seated in the courtroom to await assembly of the lineup. The courtroom faced on a hallway observable to the witnesses through an open door. The cashier testified that she saw Wade 'standing in the hall' within sight of an FBI agent. Five or six other prisoners later appeared in the hall. The vice president testified that he saw a person in the hall in the custody of the agent who 'resembled the person that we identified as the one that had entered the bank.'24
25
The lineup in Gilbert, supra, was conducted in an auditorium in which some 100 witnesses to several alleged state and federal robberies charged to Gilbert made wholesale identifications of Gilbert as the robber in each other's presence, a procedure said to be fraught with dangers of suggestion.25 And the vice of suggestion created by the identification in Stovall, supra, was the presentation to the witness of the suspect alone handcuffed to police officers. It is hard to imagine a situation more clearly conveying the suggestion to the witness that the one presented is believed guilty by the police. See Frankfurter, The Case of Sacco and Vanzetti 31—32.
26
The few cases that have surfaced therefore reveal the existence of a process attended with hazards of serious unfairness to the criminal accused and strongly suggest the plight of the more numerous defendants who are unable to ferret out suggestive influences in the secrecy of the confrontation. We do not assume that these risks are the result of police procedures intentionally designed to prejudice an accused. Rather we assume they derive from the dangers inherent in eyewitness identification an t he suggestibility inherent in the context of the pretrial identification. Williams & Hammelmann, in one of the most comprehensive studies of such forms of identification, said, '(T)he fact that the police themselves have, in a given case, little or no doubt that the man put up for identification has committed the offense, and that their chief pre-occupation is with the problem of getting sufficient proof, because he has not 'come clean,' involves a a danger that this persuasion may communicate itself even in a doubtful case to the witness in some way * * *.' Identification Parades, Part I, (1963) Crim.L.Rev. 479, 483.
27
Insofar as the accused's conviction may rest on a courtroom identification in fact the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him. Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. And even though cross-examination is a precious safeguard to a fair trial, it cannot be viewed as an absolute assurance of accuracy and reliability. Thus in the present context, where so many variables and pitfalls exist, the first line of defense must be the prevention of unfairness and the lessening of the hazards of eyewitness identification at the lineup itself. The trial which might determine the accused's fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness 'that's the man.'
28
Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial,26 there can be little doubt that for Wade the postindictment lineup was a critical stage of the prosecution at which he was 'as much entitled to such aid (of counsel) * * * as at the trial itself.' Powell v. State of Alabama, 287 U.S. 45, at 57, 53 S.Ct. 55, at 60, 77 L.Ed. 158. Thus both Wade and his counsel should have been notified of the impending lineup, and counsel's presence should have been a requisite to conduct of the lineup, absent an 'intelligent waiver.' See Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70. No substantial countervailing policy considerations have been advanced against the requirement of the presence of counsel. Concern is expressed that the requirement will forestall prompt identifications and result in obstruction of the confrontations. As for the first, we note that in the two cases in which the right to counsel is today held to apply, counsel had already been appointed and no argument is made in either case that notice to counsel would have prejudicially delayed the confrontations. Moreover, we leave open the question whether the presence of substitute counsel might not suffice where notification and presence of the suspect's own counsel would result in prejudicial delay.27 And to refuse to recognize the right to counsel for fear that counsel will obstruct the course of justice is contrary to the basic assumptions upon which this Court has operated in Sixth Amendment cases. We rejected similar logic in Miranda v. State of Arizona, concerning presence of counsel during custodial interrogation, 384 U.S. at 480—481, 86 S.Ct. at 1631, 16 L.Ed.2d 694:
29
'(A)n attorney is merely exercising the good professional judgment he has been taught. This is not cause for considering the attorney a menace to law enforcement. He is merely carrying out what he is sworn to do under his oath—to protect to the extent of his ability the rights of his client. In fulfilling this responsibility the attorney plays a vital role in the administration of criminal justice under our Constitution.'
30
In our view counsel can hardly impede legitimate law enforcement; on the contrary, for the reasons expressed, law enforcement may be assisted by preventing the infiltration of taint in the prosecution's indentification evidence.28 That result cannot help the guilty avoid conviction but can only help assure that the right man has been brought to justice.29
31
Legislative or other regulations, such as those of local police departments, which eliminate the risks of abuse and unintentional suggestion at lineup proceedings and the impediments to meaningful confrontation at trial may also remove the basis for regarding the stage as 'critical.'30 But neither Congress nor the federal authorities have seen fit to provide a solution. What we hold today 'in no way creates a constitutional straitjacket which will handicap sound efforts at reform, nor is it intended to have this effect.' Miranda v. State of Arizona, supra, at 467, 86 S.Ct. at 1624.
V.
32
We come now to the question whether the denial of Wade's motion to strike the courtroom identification by the bank witnesses at trial because of the absence of his counsel at the lineup required, as the Court of Appeals held, the grant of a new trial at which such evidence is to be excluded. We do not think this disposition can be justified without first giving the Government the opportunity to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification. See Murphy v. Waterfront Commission, 378 U.S. 52, 79, n. 18, 84 S.Ct. 1594, 1609, 12 L.Ed.2d 678.31 Where, as here, the admissibility of evidence of the lineup identification itself is not involved, a per se rule of exclusion of courtroom identification would be unjustified.32 See Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 267, 84 L.Ed. 307. A rule limited solely to the exclusion of testimony concerning identification at the lineup itself, without regard to admissibility of the courtroom identification, would render the right to counsel an empty one. The lineup is most often used, as in the present case, to crystallize the witnesses' identification of the defendant for future reference. We have already noted that the lineup identification will have that effect. The State may then rest upon the witnesses' unequivocal courtroom identifications, and not mention the pretrial identification as part of the State's case at trial. Counsel is then in the predicament in which Wade's counsel found himself—realizing that possible unfairness at the lineup may be the sole means of attack upon the unequivocal courtroom identification, and having to probe in the dark in an attempt to discover and reveal unfairness, while bolstering the government witness' courtroom identification by bringing out and dwelling upon his prior identification. Since counsel's presence at the lineup would equip him to attack not only the lineup identification but the courtroom identification as well, limiting the impact of violation of the right to counsel to exclusion of evidence only of identification at the lineup itself disregards a critical element of that right.
33
We think it follows that the proper test to be applied in these situations is that quoted in Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, "(W)hether, 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).' See also Hoffa v. United States, 385 U.S. 293, 309, 87 S.Ct. 408, 17 L.Ed.2d 374. Application of this test in the present context requires consideration of various factors; for example, the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant's actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. It is also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup.33
34
We doubt that the Court of Appeals applied the proper test for exclusion of the in-court identification of the two witnesses. The court stated that 'it cannot be said with any certainty that they would have recognized appellant at the time of trial if this intervening lineup had not occurred,' and that the testimony of the two witnesses 'may well have been colored by the illegal procedure (and) was prejudicial.' 358 F.2d, at 560. Moreover, the court was persuaded, in part, by the 'compulsory verbal responses made by Wade at the instance of the Special Agent.' Ibid. This implies the erroneous holding that Wade's privilege against self-incrimination was violated so that the denial of counsel required exclusion.
35
On the rco rd now before us we cannot make the determination whether the in-court identifications had an independent origin. This was not an issue at trial, although there is some evidence relevant to a determination. That inquiry is most properly made in the District Court. We therefore think the appropriate procedure to be followed is to vacate the conviction pending a hearing to determine whether the in-court identifications had an independent source, or whether, in any event, the introduction of the evidence was harmless error, Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, and for the District Court to reinstate the conviction or order a new trial, as may be proper. See United States v. Shotwell Mfg. Co., 355 U.S. 233, 245—246, 78 S.Ct. 245, 253, 2 L.Ed.2d 234.
36
The judgment of the Court of Appeals is vacated and the case is remanded to that court with direction to enter a new judgment vacating the conviction and remanding the case to the District Court for further proceedings consistent with this opinion. It is so ordered.
37
Judgment of Court of Appeals vacated and case remanded with direction.
38
THE CHIEF JUSTICE joins the opinion of the Court except for Part I, from which he dissents for the reasons expressed in the opinion of Mr. Justice FORTAS.
39
Mr. Justice DOUGLAS joins the opinion of the Court except for Part I. On that phase of the case he adheres to the dissenting views in Schmerber v. State of California, 384 U.S. 757, 772—779, 86 S.Ct. 1826, 16 L.Ed.2d 908, since he believes that compulsory lineup violates the privilege against self-incrimination contained in the Fifth Amendment.
40
Mr. Justice CLARK, concurring.
41
With reference to the lineup point involved in this case I cannot, for the life of me, see why a lineup is not a critical stage of the prosecution. Identification of the suspect—a prerequisite to establishment of guilt—occurs at this stage, and with Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), on the books, the requirement of the presence of counsel arises, unless waived by the suspect. I dissented in Miranda but I am bound by it now, as we all are. Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), precludes petitioner's claim of self-incrimination. I therefore join the opinion of the Court.
42
Mr. Justice BLACK, dissenting in part and concurring in part.
43
On March 23, 1965, respondent Wade was indicted for robbing a bank; on April 2, he was arrested; and on April 26, the court appointed a lawyer to represent him. Fifteen days later while Wade was still in custody, an FBI agent took him and several other prisoners into a room at the courthouse, directed each to participate in a lineup wearing strips of tape on his face and to speak the words used by the robber at the bank. This was all done in order to let the bank employee witnesses look at Wade for identification purposes. Wade's lawyer was not notified of or present at the lineup to protect his client's interests. At Wade's trial, two bank employees identified him in the courtroom. Wade objected to this testimony, when, on cross-examination, his counsel elicited from these witnesses the fact that they had seen Wade in the lineup. He contended that by forcing him to participate in the lineup, wear strips of tape on his face, and repeat the words used by the robber, all without counsel, the Government had (1) compelled him to be a witness against himself inviolation of the Fifth Amendment, and (2) deprived him of the assistance of counsel for his defense in violation of the Sixth Amendment.
44
The Court in Part I of its opinion rejects Wade's Fifth Amendment contention. From that I dissent. In Parts II—IV of its opinion, the Court sustains Wade's claim of denial of right to counsel in the out-of-court lineup, and in that I concur. In Part V, the Court remands the case to the District Court to consider whether the courtroom identification of Wade was the fruit of the illegal in eup, and, if it was, to grant him a new trial unless the court concludes that the courtroom identification was harmless error. I would reverse the Court of Appeals' reversal of Wade's conviction, but I would not remand for further proceedings since the prosecution not having used the out-of-court lineup identification against Wade at his trial, I believe the conviction should be affirmed.
I.
45
In rejecting Wade's claim that his privilege against self-incrimination was violated by compelling him to appear in the lineup wearing the tape and uttering the words given him by the police, the Court relies on the recent holding in Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. In that case the Court held that taking blood from a man's body against his will in order to convict him of a crime did not compel him to be a witness against himself. I dissented from that holding, 384 U.S., at 773, 86 S.Ct., at 1837, and still dissent. The Court's reason for its holding was that the sample of Schmerber's blood taken in order to convict him of crime was neither 'testimonial' nor 'communicative' evidence. I think it was both. It seems quite plain to me that the Fifth Amendment's Self-incrimination Clause was designed to bar the Government from forcing any person to supply proof of his own crime, precisely what Schmerber was forced to do when he was forced to supply his blood. The Government simply took his blood against his will and over his counsel's protest for the purpose of convicting him of crime. So here, having Wade in its custody awaiting trial to see if he could or would be convicted of crime, the Government forced him to stand in a lineup, wear strips on his face, and speak certain words, in order to make it possible for government witnesses to identify him as a criminal. Had Wade been compelled to utter these or any other words in open court, it is plain that he would have been entitled to a new trial because of having been compelled to be a witness against himself. Being forced by the Government to help convict himself and to supply evidence against himself by talking outside the courtroom is equally violative of his constitutional right not to be compelled to be a witness against himself. Consequently, because of this violation of the Fifth Amendment, and not because of my own personal view that the Government's conduct was 'unfair,' 'prejudicial,' or 'improper,' I would prohibit the prosecution's use of lineup identification at trial.
II.
46
I agree with the Court, in large part because of the reasons it gives, that failure to notify Wade's counsel that Wade was to be put in a lineup by government officers and to be forced to talk and wear tape on his face denied Wade the right to counsel in violation of the Sixth Amendment. Once again, my reason for this conclusion is solely the Sixth Amendment's guarantee that 'the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence.' As this Court's opinion points out, '(t)he plain wording of this guarantee thus encompasses counsel's assistance whenever necessary to assure a meaningful 'defence." And I agree with the Court that a lineup is a 'critical stage' of the criminal proceedings against an accused, because it is a stage at which the Government makes use of his custody to obtain crucial evidence against him. Besides counsel's presence at the lineup being necessary to protect the defendant's specific constitutional rights to confrontation and the assistance of counsel at the trial itself, the assistance of counsel at the lineup is also necessary to protect the defendant's in-custody assertion of his privilege against self-incrimination, Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, for, contrary to the Court, I believe that counsel may advise the defendant not to participate in the lineup or to participate only under certain conditions.
47
I agree with the Court that counsel's presence at the lineup is necessaryto protect the accused's right to a 'fair trial,' only if by 'fair trial' the Court means a trial in accordance with the 'Law of the Land' as specifically set out in the Constitution. But there are implications in the Court's opinion that by a 'fair trial' the Court means a trial which a majority of this Court deems to be 'fair' and that a lineup is a 'critical stage' only because the Court, now assessing the 'innumerable dangers' which inhere in it, thinks it is such. That these implications are justified is evidenced by the Court's suggestion that '(l)egislative or other regulations * * * which eliminate the risks of abuse * * * at lineup proceedings * * * may also remove the basis for regarding the stage as 'critical." And it is clear from the Court's opinion in Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, that it is willing to make the Sixth Amendment's guarantee of right to counsel dependent on the Court's own view of whether a particular stage of the proceedings—though 'critical' in the sense of the prosecution's gathering of evidence—is 'critical' to the Court's own view of a 'fair trial.' I am wholly unwilling to make the specific constitutional right of counsel dependent on judges' vague and transitory notions of fairness and their equally transitory, though thought to be empirical, assessment of the 'risk that * * * counsel's absence * * * might derogate from * * * (a defendant's) right to a fair trial.' Ante, at 228. See Pointer v. State of Texas, 380 U.S. 400, 412, 85 S.Ct. 1065, 1072, 13 L.Ed.2d 923 (concurring opinion of Goldberg, J.).
III.
48
I would reverse Wade's conviction without further ado had the prosecution at trial made use of his lineup identification either in place of courtroom identification or to bolster in a harmful manner crucial courtroom identification. But the prosecution here did neither of these things. After prosecution witnesses under oath identified Wade in the courtroom, it was the defense, and not the prosecution, which brought out the prior lineup identification. While stating that 'a per se rule of exclusion of courtroom identification would be unjustified,' the Court, nevertheless remands this case for 'a hearing to determine whether the incourt identifications had an independent source,' or were the tainted fruits of the invalidly conducted lineup. From this holding I dissent.
49
In the first place, even if this Court has power to establish such a rule of evidence, I think the rule fashioned by the Court is unsound. The 'tained fruit' determination required by the Court involves more than considerable difficulty. I think it is practically impossible. How is a witness capable of probing the recesses of his mind to draw a sharp line between a courtroom identification due exclusively to an earlier lineup and a courtroom identification due to memory not based on the lineup? What kind of 'clear and convincing evidence' can the prosecution offer to prove upon what particular events memories resulting in an in-court identification rest? How long will trials be delayed while judges turn psychologists to probe the subconscious minds of witnesses? All these questions are posed but not answered by the Court's opinion. In my view, the Fifth and Sixth Amendments are satisfied if the prosecution is precluded from using lineup identification as either an alternative to or corroboration of courtroom identification. If the prosecution does neither and its witnesses under oath identify the defendant in the courtroom, then I can find no justification for stopping the trial in midstream to hold a lengthy 'tainted fruit' hearing. The fact of and circumstances surrounding a prior lineup identification might be used by the defense to impeach the credibility of the in-court identifications, but not to exclude them completely.
50
But more important, there is no constitutional provision upon which I can rely that directly or by implication gives this Court power to establish what amounts to a constitutina l rule of evidence to govern, not only the Federal Government, but the States in their trial of state crimes under state laws in state courts. See Gilbert v. California, supra. The Constitution deliberately reposed in the States very broad power to create and to try crimes according to their own rules and policies. Spencer v. State of Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606. Before being deprived of this power, the least that they can ask is that we should be able to point to a federal constitutional provision that either by express language or by necessary implication grants us the power to fashion this novel rule of evidence to govern their criminal trials. Cf. Berger v. New York, 388 U.S. 70, 87 S.Ct. 1889, 18 L.Ed.2d 1040 (Black, J., dissenting). Neither Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307, nor Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, both federal cases and both decided 'in other contexts,' supports what the Court demands of the States today.
51
Perhaps the Court presumes to write this constitutional rule of evidence on the basis of the Fourteenth Amendment's Due Process Clause. This is not the time or place to consider that claim. Suffice it for me to say briefly that I find no such authority in the Due Process Clause. It undoubtedly provides that a person must be tried in accordance with the 'Law of the Land.' Consequently, it violates due process to try a person in a way prohibited by the Fourth, Fifth, or Sixth Amendments of our written Constitution. But I have never been able to subscribe to the dogma that the Due Process Clause empowers this Court to declare any law, including a rule of evidence, unconstitutional which it believes is contrary to tradition, decency, fundamental justice, or any of the other widemeaning words used by judges to claim power under the Due Process Clause. See, e.g., Rochin v. People of State of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183. I have an abiding idea that if the Framers had wanted to let judges write the Constitution on any such day-to-day beliefs of theirs, they would have said so instead of so carefully defining their grants and prohibitions in a written constitution. With no more authority than the Due Process Clause I am wholly unwilling to tell the state or federal courts that the United States Constitution forbids them to allow courtroom identification without the prosecution's first proving that the identification does not rest in whole or in part on an illegal lineup. Should I do so, I would feel that we are deciding what the Constitution is, not from what it says, but from what we think it would have been wise for the Framers to put in it. That to me would be 'judicial activism' at its worst. I would leave the States and Federal Government free to decide their own rules of evidence. That, I believe, is their constitutional prerogative.
52
I would affirm Wade's conviction.
53
Mr. Justice WHITE, whom Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting in part and concurring in part.
54
The Court has again propounded a broad constitutional rule barring the use of a wide spectrum of relevant and probative evidence, solely because a step in its ascertainment or discovery occurs outside the presence of defense counsel. This was the approach of the Court in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. I objected then to what I thought was an uncritical and doctrinaire approach without satisfactory factual foundation. I have much the same view of the present ruling and therefore dissent from the judgment and from Parts II, IV, and V of the Court's opinion.
55
The Court's opinion is far-reaching. It proceeds first by creating a new per se rule of constitutional law: a criminal suspect cannot be subjected to a pretrial identification process in the absence of his counsel without violating the Sixth Amendment. If he is, the State may buttress a later courtroom identification, of the witnes b y any reference to the previous identification. Furthermore, the courtroom identification is not admissible at all unless the State can establish by clear and convincing proof that the testimony is not the fruit of the earlier identification made in the absence of defendant's counsel admittedly a heavy burden for the State and probably an impossible one. To all intents and purposes, courtroom identifications are barred if pretrial identifications have occurred without counsel being present.
56
The rule applies to any lineup, to any other techniques employed to produce an identification and a fortiori to a face-to-face encounter between the witness and the suspect alone, regardless of when the identification occurs, in time or place, and whether before or after indictment or information. It matters not how well the witness knows the suspect, whether the witness is the suspect's mother, brother, or long-time associate, and no matter how long or well the witness observed the perpetrator at the scene of the crime. The kidnap victim who has lived for days with his abductor is in the same category as the witness who has had only a fleeting glimpse of the criminal. Neither may identify the suspect without defendant's counsel being present. The same strictures apply regardless of the number of other witnesses who positively identify the defendant and regardless of the corroborative evidence showing that it was the defendant who had committed the crime.
57
The premise for the Court's rule is not the general unreliability of eyewitness identifications nor the difficulties inherent in observation, recall, and recognition. The Court assumes a narrower evil as the basis for its rule—improper police suggestion which contributes to erroneous identifications. The Court apparently believes that improper police procedures are so widespread that a broad prophylactic rule must be laid down, requiring the presence of counsel at all pretrial identifications, in order to detect recurring instances of police misconduct.1 I do not share this pervasive distrust of all official investigations. None of the materials the Court relies upon supports it.2 Certainly, I would bow to solid fact, but the Court quite obviously does not have before it any reliable, comprehensive survey of current police practices on which to base its new rule. Until it does, the Court should avoid excluding relevant evidence from state criminal trials. Cf. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019.
58
The Court goes beyond assuming that a great majority of the country's police departments are following improper practices at pretrial identifications. To find the lineup a 'critical' stage of the proceeding and to exclude identifications made in the absence of counsel, the Court must also assume that police 'suggestion,' if it occurs at all, leads to erroneous rather than accurate identifications and that reprehensible police conduct will have an unavoidable and largely undiscoverable impacton the trial. This in turn assumes that there is now no adequate source from which defense counsel can learn about the circumstances of the pretrial identification in order to place before the jury all of the considerations which should enter into an appraisal of courtroom identification evidence. But these are treacherous and unsupported assumptions3 resting as they do on the notion that the defendant will not be aware, that the police and the witnesses will forget or prevaricate, that defense counsel will be unable to bring out the truth and that neither jury, judge, nor appellate court is a sufficient safeguard against unacceptable police conduct occurring at a pretrial identification procedure. I am unable to share the Court's view of the willingness of the police and the ordinary citizenwitness to dissemble, either with respect to the identification of the defendant or with respect to the circumstances surrounding a pretrial identification.
59
There are several striking aspects to the Court's holding. First, the rule does not bar courtroom identifications where there have been no previous identifications in the presence of the police, although when identified in the courtroom, the defendant is known to be in custody and charged with the commission of a crime. Second, the Court seems to say that if suitable legislative standards were adopted for the conduct of pretrial identifications, thereby lessening the hazards in such confrontations, it would not insist on the presence of counsel. But if this is true, why does not the Court simply fashion what it deems to be constitutionally acceptable procedures for the authorities to follow? Certainly the Court is correct in suggesting that the new rule will be wholly inapplicable where police departments themselves have established suitable safeguards.
60
Third, courtroom identification may be barred, absent counsel at a prior identification, regardless of the extent of counsel's information concerning the circumstances of the previous confrontation between witness and defendant—apparently even if there were recordings or sound-movies of the events as they occurred. But if the rule is premised on the defendant's right to have his counsel know, there seems little basis for not accepting other means to inform. A disinterested observer, recordings, photographs—any one of them would seem adequate to furnish the basis for a meaningful cross-examination of the eyewitness who identifies the defendant in the courtroom.
61
I share the Court's view that the criminal trial, at the very least, should aim at truthful factfinding, including accurate eyewitness identifications. I doubt, however, on the basis of our present information, that the tragic mistakes which have occurred in criminal trials are as much the product of improper police conduct as they are the consequence of the difficulties inherent in eyewitness testimony and in resolving evidentiay conflicts by court or jury. I doubt that the Court's new rule will obviate these difficulties, or that the situation will be measurably improved by inserting defense counsel into the investigative processes of police departments eyerywhere.
62
But, it may be asked, what possible state interest militates against requiring the presence of defense counsel at lineups? After all, the argument goes, he may do some good, he may upgrade the quality of identification evidence in state courts and he can scarcely do any harm. Even if true, this is a feeble foundation for fastening an ironclad constitutional rule upon state criminal procedures. Absent some reliably established constitutional violation, the processes by which the States enforce their criminal laws are their own prerogative. The States do have an interest in conducting their own affairs, an interest which cannot be displaced simply by saying that there are no valid arguments with respect to the merits of a federal rule emanating from this Court.
63
Beyond this, however, requiring counsel at pretrial identifications as an invariable rule trenches on other valid state interests. One of them is its concern with the prompt and efficient enforcement of its criminal laws. Identifications frequently take place after arrest but before an indictment is returned or an information is filed. The police may have arrested a suspect on probable cause but may still have the wrong man. Both the suspect and the State have every interest in a prompt identification at that stage, the suspect in order to secure his immediate release and the State because prompt and early identification enhances accurate identification and because it must know whether it is on the right investigative track. Unavoidably, however, the absolute rule requiring the presence of counsel will cause significant delay and it may very well result in no pretrial identification at all. Counsel must be appointed and a time arranged convenient for him and the witnesses. Meanwhile, it may be necessary to file charges against the suspect who may then be released on bail, in the federal system very often on his own recognizance, with neither the State nor the defendant having the benefit of a properly conducted identification procedure.
64
Nor do I think the witnesses themselves can be ignored. They will now be required to be present at the convenience of counsel rather than their own. Many may be much less willing to participate if the identification stage is transformed into an adversary proceeding not under the control of a judge. Others may fear for their own safety if their identity is known at an early date, especially when there is no way of knowing until the lineup occurs whether or not the police really have the right man.4
65
Finally, I think the Court's new rule is vulnerable in terms of its own unimpeachable purpose of increasing the reliability of identification testimony.
66
Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime.5 To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidnc e. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution's case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course.6 Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State's case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe7 but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.
67
I would not extend this system, at least as it presently operates, to police investigations and would not require counsel's presence at pretrial identification procedures. Counsel's interest is in not having his client placed at the scene of the crime, regardless of his whereabouts. Some counsel may advise their clients to refuse to make any movements or to speak any words in a lineup or even to appear in one. To that extent the impact on truthful factfinding is quite obvious. Others will not only observe what occurs and develop possibility for later cross-examination but will hover over witnesses and begin their cross-examination then, menacing truthful factfinding as thoroughly as the Court fears the police now do. Certainly there is an implicit invitation to counsel to suggest rules for the lineup and to manage and produce it as best he can. I therefore doubt that the Court's new rule, at least absent some clearly defined limits on counsel's role, will measurably contribute to more reliable pretrial identifications. My fears are that it will have precisely the opposite result. It may well produce fewer convictions, but that is hardly a proper measure of its long-run acceptability. In my view, the State is entitled to investigate and develop its case outside the presence of defense counsel. This includes the right to have private conversations with identification witnesses, just as defense counsel may have his own consultations with these and other witnesses without having the prosecutor present.
68
Whether today's judgment would be an acceptable exercise of supervisory power over federal courts is another question. But as a constitutional matter, the judgment in this case is erroneous and although I concur in Parts I and III of the Court's opinion I respectfully register this dissent.
69
Mr. Justice FORTAS, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS join, concurring in part and dissenting in part.
70
1. I agree with the Court that the exhibition of the person of the accused at a lineup is not itself a violation of the privilege against self-incrimination. In itself, it is no more subject to constitutional objection than the exhibition of the person of the accused in the courtroom for identification purposes. It is an incident of the State's power to arrest, and a reasonable and justifiable aspect of the State's custody resulting from arrest. It does not require that the accused take affirmative, volitional action, but only that, having been duly arrested he may be seen for identification purposes. It is, however, a 'critical stage' in the prosecution, and I agree with the Court that the opportunity to have counsel present must be made available.
71
2. In my view, however, the accused may not be compelled in a lineup to speak the words uttered by the person who committed the crime. I am confident that it could not be compelled in court. It cannot be compelled in a lineup. It is more than passive, mute assistance to the eyes of the victim or of witnesses. It is the kind of volitional act—the kind of forced cooperation by the accused—which is within the historical permeter of the privilege against compelled self-incrimination.
72
Our history and tradition teach and command that an accused may stand mute. The privilege means just that; not less than that. According to the Court, an accused may be jailed—indefinitely until he is willing to say, for an identifying audience, whatever was said in the course of the commission of the crime. Presumably this would include, 'Your money or your life'—or perhaps, words of assault in a rape case. This is intolerable under our constitutional system.
73
I completely agree that the accused must be advised of and given the right to counsel before a lineup—and I join in that part of the Court's opinion; but this is an empty right unless we mean to insist upon the accused's fundamental constitutional immunities. One of these is that the accused may not be compelled to speak. To compel him to speak would violate the privilege against self-incrimination, which is incorporated in the Fifth Amendment.
74
This great privilege is not merely a shield for the accused. It is also a prescription of technique designed to guide the State's investigation. History teaches us that self-accusation is an unreliable instrument of detection, apt to inculpate the innocent-but-weak and to enable the guilty to escape. But this is not the end of the story. The privilege historically goes to the roots of democratic and religious principle. It prevents the debasement of the citizen which would result from compelling him to 'accuse' himself before the power of the state. The roots of the privilege are deeper than the rack and the screw used to extrot confessions. They go to the nature of a free man and to his relationship to the state.
75
An accused cannot be compelled to utter the words spoken by the criminal in the course of the crime. I thoroughly disagree with the Court's statement that such compulsion does not violate the Fifth Amendment. The Court relies upon Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), to support this. I dissented in Schmerber but if it were controlling here, I should, of course, acknowledge its binding effect unless we were prepared to overrule it. But Schmerber, which authorized the forced extraction of blood from the veins of an unwilling human being, did not compel the person actively to cooperate—to accuse himself by a volitional act which differs only in degree from compelling him to act out the crime, which, I assume, would be rebuffed by the Court. It is the latter feature which places the compelled utterance by the accused squarely within the history and noble purpose of the Fifth Amendment's commandment.
76
To permit Schmerber to apply in any respect beyond its holding is, in my opinion, indefensible. To permit its insidious doctrine to extend beyond the invasion of the body, which it permits, to compulsion of the will of a man, is to deny and defy a precious part of our historical faith and to discard one of the most profoundly cherished instruments by which we have established the freedom and dignity of the individual. We should not so alter the balance between the rights of the individual and of the state, achieved over centuries of conflict.
77
3. While the Court holds that the accused must be advised of and given the right to counsel at the lineup, it makes the privilege meaningless in this important respect. Unless counsel has been waived or, being present, has not objected to the accused's utterance of words used in the course of committing the crime, to compel such an utterance is constitutional error.*
78
Accordingly, while I join the Court in requiring vacating of the judgment below for a determination as to whether the identification of respondent was based upon factors independent of the lineup, I would do so not only because of the failure to offer counsel before the lineup but also because of the violation of respondent's Fifth Amendment rights.
1
Holt was decided before Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, fashioned the rule excluding illegally obtained evidence in a federal prosecution. The Court therefore followed Adams v. People of State of New York, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575, in holding that, in any event, 'when he is exhibited, whether voluntarily or by order, and even if the order goes too far, the evidence, if material, is competent.' 218 U.S., at 253, 31 S.Ct. at 6.
2
See Powell v. State of Alabama, 287 U.S. 45, 60—65, 53 S.Ct. 55, 60—62, 77 L.Ed. 158; Beaney, Right to Counsel in American Courts 8—26.
3
See Note, 73 Yale L.J. 1000, 1040—1042 (1964); Comment, 53 Calif.L.Rev. 337, 347—348 (1965).
4
See, e.g., Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193; Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246.
5
See cases cited n. 4, supra; Avery v. State of Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed. 377.
6
Borchard, Convicting the Innocent; Frank & Frank, Not Guilty; Wall, Eye-Witness Identification in Criminal Cases; 3 Wigmore, Evidence § 786a (3d ed. 1940); Rolph, Personal Identity; Gross, Criminal Investigation 47—54 (Jackson ed. 1962); Williams, Proof of Guilt 83—98 (1955); Wills, Circumstantial Evidence 192 205 (7th ed. 1937); Wigmore, The Science of Judicial Proof §§ 250 253 (3d ed. 1937).
7
See Wall, supra, n. 6, at 26—65; Murray, The Criminal Lineup at Home and Abroad, 1966 Utah L.Rev. 610; Napley, Problems of Effecting the Presentation of the Case for a Defendant, 66 Col.L.Rev. 94, 98—99 (1966); Williams, Identification Parades, (1955) Crim.L.Rev. (Eng.) 525; Paul, Indemnification of Accused Persons, 12 Austl.L.J. 42 (1938); Houts, From Evidence to Proof 25; Williams & Hammelmann, Identification Parades, Parts I & II, (1963) Crim.L.Rev. 479—490, 54—5 55; Gorphe, Showing Prisoners to Witnesses for Identification, 1 Am.J.Police Sci. 79 (1930); Wigmore, The Science of Judicial Proof, supra, n. 6, at § 253; Devlin, The Criminal Prosecution in England 70; Williams, Proof of Guilt 95—97.
8
Williams & Hammelmann, Identification Parades, Part I, (1963) Crim.L.Rev. 479, 482.
9
Williams & Hammelmann, Identification Parades, Part I, supra, n. 7.
10
See Wall, supra, n. 6, at 57—59; see, e.g., People v. Boney, 28 Ill.2d 505, 192 N.E.2d 920 (1963); People v. James, 218 Cal.App.2d 166, 32 Cal.Rptr. 283 (1963).
11
See Rolph, Personal Identity 50: 'The bright burden of identity, at these parades, is lifted from the innocent participants to hover about the suspect, leaving the rest featureless and unknown and without interest.'
12
See Williams & Hammelmann, Identification Parades, Part II, (1963) Crim.L.Rev. 545, 546; Borchard, Convicting the Innocent 367.
13
An additional impediment to the detection of such influences by participants, including the suspect, is the physical conditions often surrounding the conduct of the lineup. In many, lights shine on the stage in such a way that the suspect cannot see the witness. See Gilbert v. United State, 366 F.2d 923 (C.A.9th Cir. 1966). In some a one-way mirror is used and what is said on the witness' side cannot be heard. See Rigney v. Hendrick, 355 F.2d 710, 711, n. 2 (C.A.3d Cir. 1965); Aaron v. State, 273 Ala. 337, 139 So.2d 309 (1961).
14
Williams & Hammelmann, Part I, supra, n. 7, at 489; Napley, supra, n. 7, at 99.
15
See In re Groban, 352 U.S. 330, 340, 77 S.Ct. 510, 516, 1 L.Ed.2d 376 (Black, J., dissenting). The difficult position of defendants in attempting to protest the manner of pretrial identification is illustrated by the many state court cases in which contentions of blatant abuse rested on their unsupportable allegations, usually controverted by the police officers present. See, e.g., People v. Shields, 70 Cal.App.2d 628, 634—635, 161 P.2d 475, 478—479 (1945); People v. Hicks, 22 Ill.2d 364, 176 N.E.2d 810 (1961); State v. Hill, 193 Kan. 512, 394 P.2d 106 (1964); Redmon v. Commonwealth, 321 S.W.2d 397 (Ky.Ct.App.1959); Lubinski v. State, 180 Md. 1, 8, 22 A.2d 455, 459 (1941). For a striking case in which hardly anyone agreed upon what occurred at the lineup, including who identified whom, see Johnson v. State, 237 Md. 283, 206 A.2d 138 (1965).
16
An instructive example of the defendant's predicament may be found in Proctor v. State, 223 Md. 394, 164 A.2d 708 (1960). A prior identification is admissible in Maryland only under the salutary rule that it cannot have been made 'under conditions of unfairness or unreliability.' Id., at 401, 164 A.2d, at 712. Against the defendant's contention that these conditions had not been met, the Court stated:
'In the instant case, there are no such facts as, in our judgment, would call for a finding that the identification * * * was made under conditions of unfairness or unreliability. The relatively large number of persons but into the room together for (the victim) to look at is one circumstance indicating fairness, and the fact that the police officer was unable to remember the appearances of the others and could not recall if they had physical characteristics similar to (the defendant's) or not is at least suggestive that they were not of any one type or that they all differed markedly in looks from the defendant. There is no evidence that the Police Sergeant gave the complaining witness any indication as to which of the thirteen men was the defendant; the Sergeant's testimony is simply that he asked (the victim) if he could identify (the defendant) after having put the thirteen men in the courtroom.'
17
Wall, Eye-Witness Identification in Criminal Cases 53. For other such examples see Houts, From Evidence to Proof 25; Frankfurter, The Case of Sacco and Vanzetti 12—14, 30—32; 3 Wigmore, Evidence § 786a, at 164, n. 2 (3d ed. 1940); Paul, Identification of Accused Persons, 12 Austl.L.J. 42, 44 (1938); Rolph, Personal Identity 34—43.
18
See People v. James, 218 Cal.App.2d 166, 170—171, 32 Cal.Rptr. 283, 286 (1963); People v. Boney, 28 Ill.2d 505, 192 N.E.2d 920 (1963).
19
See Fredricksen v. United States, 105 U.S.App.D.C. 262, 266 F.2d 463 (1959); People v. Adell, 75 Ill.App.2d 385, 221 N.E.2d 72 (1966); State v. Hill, 193 Kan. 512, 394 P.2d 106 (1964); People v. Seppi, 221 N.Y. 62, 116 N.E. 793 (1917); State v. Duggan, 215 Or. 151, 162, 333 P.2d 907, 912 (1958).
20
See People v. Crenshaw, 15 Ill.2d 458, 460, 155 N.E.2d 599, 602 (1959); Presley v. State, 224 Md. 550, 168 A.2d 510 (1961); State v. Ramirez, 76 N.M. 72, 412 P.2d 246 (1966); State v. Bazemore, 193 N.C. 336, 137 S.E. 172 (1927); Barrett v. State, 190 Tenn. 366, 229 S.W.2d 516, 18 A.L.R.2d 789 (1950).
21
See Aaron v. State, 273 Ala. 337, 139 So.2d 309 (1961); Bishop v. State, 236 Ark. 12, 364 S.W.2d 676 (1963); People v. Thompson, 406 Ill. 555, 94 L.Ed.2d 349 (1950); People v. Berne, 384 Ill. 334, 51 N.E.2d 578 (1943); People v. Martin, 304 Ill. 494, 136 N.E. 711 (1922); Barrett v. State, 190 Tenn. 366, 229 S.W.2d 516, 18 A.L.R.2d 789 (1950).
22
See People v. Clark, 28 Ill.2d 423, 192 N.E.2d 851 (1963); Gillespie v. State, 355 P.2d 451, 454 (Okl.Cr.1960).
23
See People v. Parham, 60 Cal.2d 378, 33 Cal.Rptr. 497, 384 P.2d 1001 (1963).
24
See Wall, supra, n. 6, at 48; Napley, supra, n. 7, at 99: '(W)hile many identification parades are conducted by the police with scrupulous regard for fairness, it is not unknown for the identifying witness to be placed in a position where he can see the suspect before the parade forms * * *.'
25
Williams & Hammelmann, Part, I, supra, n. 7, at 486; Burtt, Applied Psychology 254—255.
26
One commentator proposes a model statute providing not only for counsel, but other safeguards as well:
'Most, if not all, of the attacks on the the lineup process could be averted by a uniform statute modeled upon the best features of the civilian codes. An p roposed statute should provide for the right to counsel during any lineup or during any confrontation. Provision should be made that any person, whether a victim or a witness, must give a description of the suspect before he views any arrested person. A written record of this description should be required, and the witness should be made to sign it. This written record would be available for inspection by defense counsel for copying before the trial and for use at the trial in testing the accuracy of the identification made during the lineup and during the trial.
'This ideal statute would require at least six persons in addition to the accused in a lineup, and these persons would have to be of approximately the same height, weight, coloration of hair and skin, and bodily types as the suspect. In addition, all of these men should, as nearly as possible, be dressed alike. If distinctive garb was used during the crime, the suspect should not be forced to wear similar clothing in the lineup unless all of the other persons are similarly garbed. A complete written report of the names, addresses, descriptive details of the other persons in the lineup, and of everything which transpired during the identification would be mandatory. This report would include everything stated by the identifying witness during this step, including any reasons given by him as to what features, etc., have sparked his recognition.
'This statute should permit voice identification tests by having each person in the lineup repeat identical innocuous phrases, and it would be impermissible to force the use of words allegedly used during a criminal act.
'The statute would enjoin the police from suggesting to any viewer that one or more persons in the lineup had been arrested as a suspect. If more than one witness is to make an identification, each witness should be required to do so separately and should be forbidden to speak to another witness until all of them have completed the process.
'The statute could require the use of movie cameras and tape recorders to record the lineup process in those states which are financially able to afford these devices. Finally, the statute should provide that any evidence obtained as the result of a violation of this statute would be inadmissible.' Murray, The Criminal Lineup at Home and Abroad, 1966 Utah L.Rev. 610, 627—628.
27
Although the right to counsel usually means a right to the suspect's own counsel, provision for substitute counsel may be justified on the ground that the substitute counsel's presence may eliminate the hazards which render the lineup a critical stage for the presence of the suspect's own counsel.
28
Concern is also expressed that the presence of counsel will force divulgence of the identity of government witnesses whose identity the Government may want to conceal. To the extent that this is a valid or significant state interest there are police practices commonly used to effect concealment, for example, masking the fase.
29
Many other nations surround the lineup with safeguards against prejudice to the suspect. In England the suspect must be allowed the presence of his solicitor or a friend, Napley, supra, n. 7, at 98—99; Germany requires the presence of retained counsel; France forbid t he confrontation of the suspect in the absence of his counsel; Spain, Mexico, and Italy provide detailed procedures prescribing the conditions under which confrontation must occur under the supervision of a judicial officer who sees to it that the proceedings are officially recorded to assure adequate scrutiny at trial. Murray, The Criminal Lineup at Home and Abroad, 1966 Utah L.Rev. 610, 621—627.
30
Thirty years ago Wigmore suggested a 'scientific method' of pretrial identification 'to reduce the risk of error hitherto inherent in such proceedings.' Wigmore, The Science of Judicial Proof 541 (3d ed. 1937). Under this approach, at least 100 talking films would be prepared of men from various occupations, races, etc. Each would be photographed in a number of stock movements, with and without hat and coat, and would read aloud a standard passage. The suspect would be filmed in the same manner. Some 25 of the films would be shown in succession in a special projection room in which each witness would be provided an electric button which would activate a board backstage when pressed to indicate that the witness had identified a given person. Provision would be made for the degree of hesitancy in the identification to be indicated by the number of presses. Id., at 540—541. Of course, the more systematic and scientific a process or proceeding, including one for purposes of identification, the less the impediment to reconstruction of the conditions bearing upon the reliability of that process or proceeding at trial. See discussion of fingerprint and like tests, Part III, supra, and of handwriting exemplars in Gilbert v. California, supra.
31
See Goldstein v. United States, 316 U.S. 114, 124, n. 1, 62 S.Ct. 1000, 1005, 86 L.Ed. 1312 (Murphy, J., dissenting). '(A)fter an accused sustains the initial burden, imposed by Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307, of proving to the satisfaction of the trial judge in the preliminary hearing that wire-tapping was unlawfully employed, as petitioners did here, it is only fair that the burden should then shift to the Government to convince the trial judge that its proof had an independent origin.'
32
We reach a contrary conclusion in Gilbert v. California, supra, as to the admissibility of the witness' testimony that he also identified the accused at the lineup.
33
Thus it is not the case that '(i)t matters not how well the witness knows the suspect, whether the witness is the suspect's mother, brother, or long-time associate, and no matter how long or well the witness observed the perpetrator at the scene of the crime.' Such factors will have an important bearing upon the true basis of the witness' in-court identification. Moreover, the State's inability to bolster the witness' courtroom identification by introduction of the lineup identification itself, see Gilbert v. California, supra, will become less significant the more the evidence of other opportunities of the witness to observe the defendant. Thus where the witness is a 'kidnap victim who has lived for days with his abductor' the value to the State of admission of the lineup identification is indeed marginal, and such identification would be a mere formality.
1
Yet in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, the Court recognizes that improper police conduct in the identification process has not been so widespread as to justify full retroactivity for its new rule.
2
In Miranda v. State of Arizona, 384 U.S. 436, 449, 86 S.Ct. 1602, 1614, 16 L.Ed.2d 694, the Court noted that O'Hara, Fundamentals of Criminal Investigation (1956) is a text that has enjoyed extensive use among law enforcement agencies and among students of police science. The quality of the work was said to rest on the author's long service as observer, lecturer in police science, and work as a federal crime investigator. O'Hara does not suggest that the police should or do use identification machinery improperly; instead he argues for techniques that would increase the reliability of eyewitness identifications, and there is no reason to suggest that O'Hara's views are not shared and practiced by the majority of police departments throughout the land.
3
The instant case and its companions, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, certainly lend no support to the Court's assumptions. The police conduct deemed improper by the Court in the three cases seems to have come to light at trial in the ordinary course of events. One can ask what more counsel would have learned at the pretrial identifications that would have been relevant for truth determination at trial. When the Court premises its constitutional rule on police conduct so subtle as to defy description and subsequent disclosure it deals in pure speculation. If police conduct is intentionally veiled, the police will know about it, and I am unwilling to speculate that defense counsel at trial will be unable to reconstruct the known circumstances of the pretrial identification. And if the 'unknown' influence on identifications is 'innocent,' the Court's general premise evaporates and the problem is simply that of the inherent shortcomings of eyewitness testimony.
4
I would not have thought that the State's interest regarding its sources of identification is any less than its interest in protecting informants, especially those who may aid in identification but who will not be used as witnesses. See McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62.
5
'The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.' Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314. See also 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. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217; Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215; Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737; Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690.
6
One point of view about the role of the courtroom lawyer appears in Frank, Courts on Trial 82—83. 'What is the role of the lawyers in bringing the evidence before the trial court? As you may learn by reading any one of a dozen or more handbooks on how to try a law-suit, an experienced lawyer uses all sorts of stratagems to minimize the effect on the judge or jury of testimony disadvantageous to his client, even when the lawyer has no doubt of the accuracy and honesty of that testimony. * * * If such a witness happens to be timid, frightened by the unfamiliarity of court-room ways, the lawyer in his cross-examination, plays on that weakness, in order to confuse the witness and make it appear that he is concealing significant facts. Longenecker, in his book Hints On the Trial of a Law Suit (a book endorsed by the great Wigmore) in writing of the 'truthful, honest, over-cautious' witness, tells how 'a skilful advocate by a rapid cross-examination may ruin the testimony of such a witness.' The author does not even hint any disapproval of that accomplishment. Longenecker's and other similar books recommend that a lawyer try to prod an irritable but honest 'adverse' witness into displaying his undesirable characteristics in their most unpleasant form, in order to discredit him with the judge or jury. 'You may,' writes Harris, 'sometimes destroy the effect of an adverse witness by making him appear more hostile than he really is. You may make him exaggerate or unsay something and say it again.' Taft says that a clever cross-examiner, dealing with an honest but egotistic witness, will 'defly tempt the witness to indulge in his propensity for exaggeration, so as to make him 'hang himself.' 'And thus,' adds Taft, 'it may happen that not only is the value of his testimony lost, but the side which produces him suffers for seeking aid from such a source' although, I would add, that may be the only source of evidence of a fact on which the decision will turn.
"An intimidating manner in putting questions,' writes Wigmore, 'may so coerce or disconcert the witness that his answers do not represent his actual knowledge on the subject. So also, questions which in form or subject cause embarrassment, shame or anger in the witness may unfairly lead him to such demeanor or utterances that the impression produced by his statements does not do justice to its real testimonial value."
7
See the materials collected in c. 3 of Countryman & Finman, The Lawyer in Modern Society; Joint Committee on Continuing Legal Education of American Law Institute and the American Bar Association, The Problem of a Criminal Defense 1—46 (1961); Stovall, Aspects of the Advocate's Dual Responsibility, 22 The Alabama Lawyer 66; Gold, Split Loyalty: An Ethical Problem for the Criminal Defense Lawyer, 14 Clev.-Mar.L.Rev. 65; Symposium on Professional Ethics, 64 Mich.L.Rev. 1469—1498.
*
While it is conceivableth at legislation might provide a meticulous lineup procedure which would satisfy constitutional requirements, I do not agree with the Court that this would 'remove the basis for regarding the (lineup) stage as 'critical."
| 01
|
388 U.S. 440
87 S.Ct. 2091
18 L.Ed.2d 1302
David E. KENEYv.NEW YORK.
No. 2.
Supreme Court of the United States
June 12, 1967
Eugene Gressman, for petitioner.
James H. Biben, for respondent.
On Petition for Writ of Certiorari to the County Court of Monroe County, New York.
PER CURIAM.
1
The petition for a writ of certiorari is granted and the judgment of the County Court of Monroe County, New York, is reversed. Redrup v. State of New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515.
2
Mr. Justice HARLAN adheres to the views expressed in his separate opinions in Roth v. United States, 354 U.S. 476, 496, 77 S.Ct. 1304, 1 L.Ed.2d 1498, and A Book Named 'John Cleland's' Memoirs of a Woman of Pleasure v. Attorney General of Com. of Massachusetts, 383 U.S. 413, 455, 86 S.Ct. 975, 16 L.Ed.2d 1, and on the basis of the reasoning set forth therein would affirm.
| 23
|
388 U.S. 350
87 S.Ct. 1847
18 L.Ed.2d 1238
UNITED STATES, Appellant,v.SEALY, INC.
No. 9.
Argued April 20, 1967.
Decided June 12, 1967.
Daniel M. Friedman, Washington, D.C., for appellant.
Richard W. McLaren, Chicago, Ill., for appellee.
Mr. Justice FORTAS delivered the opinion of the Court.
1
Appellee and its predecessors have, for more than 40 years, been engaged in the business of licensing manufacturers of mattresses and bedding products to make and sell such products under the Sealy name and trademarks. In this civil action the United States charged that appellee had violated § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1, by conspiring with its licensees to fix the prices at which the retail customers of the licensees might resell bedding products bearing the Sealy name, and to allocate mutually exclusive territories among such manufacturer-licensees.
2
After trial, the District Court found that the appellee was engaged in a continuing conspiracy with its manufacturer-licensees to agree upon and fix minimum retail prices on Sealy products and to police the prices so fixed. It enjoined the appellee from such conduct, 'Provided, however, that nothing herein contained shall be construed to prohibit the defendant from disseminating and using suggested retail prices for the purpose of national advertising of Sealy products.' Appellee did not appeal the finding or order relating to price-fixing.
3
With respect to the charge that appellee conspired to allocate mutually exclusive territory among its manufacturers, the District Court held that the United States had not proved conduct 'in unreasonable restraint of trade in violation of Section 1 of the Sherman Act.' The United States appealed under § 2 of the Expediting Act, 32 Stat. 823, as amended, 15 U.S.C. § 29. We noted probable jurisdiction. 382 U.S. 806, 86 S.Ct. 58, 15 L.Ed.2d 57 (1965).
4
There is no dispute that exclusive territories were allotted to the manufacturer-licensees. Sealy agreed with each licensee not to license any other person to manufacture or sell in the designated area; and the licensee agreed not to manufacture or sell 'Sealy products' outside the designated area. A manufacturer could make and sell his private label products anywhere he might choose.
5
Because this Court has distinguished between horizontal and vertical territorial limitations for purposes of the impact of the Sherman Act, it is first necessary to determine whether the territorial arrangements here are to be treated as the creature of the licensor, Sealy, or as the product of a horizontal arrangement among the licensees. White Motor Co. v. United States, 372 U.S. 253, 83 S.Ct. 696, 9 L.Ed.2d 738 (1963).
6
If we look at substance rather than form, there is little room for debate. These must be classified as horizontal restraints. Cmp are United States v. General Motors Corp., 384 U.S. 127, 141—148, 86 S.Ct. 1321, 1328—1332, 16 L.Ed.2d 415 (1966); id., at 148—149, 86 S.Ct. at 1332 (Harlan, J., concurring in the result); United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960).
7
There are about 30 Sealy 'licensees.' They own substantially all of its stock.1 Selay's bylaws provide that each director must be a stockholder or a stockholder-licensee's nominee. Sealy's business is managed and controlled by its board of directors. Between board meetings, the executive committee acts. It is composed of Sealy's president and five board members, all licenseestockholders. Control does not reside in the licensees only as a matter of form. It is exercised by them in the day-to-day business of the company including the grant, assignment, reassignment, and termination of exclusive territorial licenses. Action of this sort is taken either by the board of directors or the executive committee of Sealy, both of which, as we have said, are manned, wholly or almost entirely, by licensee-stockholders.
8
Appellee argues that 'there is no evidence that Sealy is a mere creature or instrumentality of its stockholders.' In support of this proposition, it stoutly asserts that 'the stockholders and directors wore a 'Sealy hat' when they were acting on behalf of Sealy.' But the obvious and inescapable facts are that Sealy was a joint venture of, by, and for its stockholder-licensees; and the stockholder-licensees are themselves directly, without even the semblance of insulation, in charge of Sealy's operations.
9
For example, some of the crucial findings of the District Court describe actions as having been taken by 'stockholder representatives' acting as the board or a committee.
10
It is true that the licensees had an interest in Sealy's effectiveness and efficiency, and, as stockholders, they welcomed its profitability—at any rate within the limits set by their willingness as licensees to pay royalties to the joint venture. But that does not determine whether they as licensees are chargeable with action in the name of Sealy. We seek the central substance of the situation, not its periphery;2 and in this pursuit, we are moved by the identity of the persons who act, rather than the label of their hats. The arrangements for exclusive territories are necessarily chargeable to the licensees of appellee whose interests such arrangements were supposed to promote and who, through select members, guaranteed or withheld and had the power to terminate licenses for inadequate performance. The territorial arrangements must be regarded as the creature of horizontal action by the licensees. It would violate reality to treat them as equivalent to territorial limitations imposed by a manufacturer upon independent dealers as incident to the sale of a trademarked product. Sealy, Inc., is an instrumentality of the licensees for purposes of the horizontal territorial allocation. It is not the principal.
11
Accordingly, this case is to be distinguished from White Motor Co. v. United States, supra, which involved a vertical territorial limitation. In that case, this Court pointed out that vertical restraints were not embraced within the condemnation of horizontal territorial limitations in Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951), and prior to trial on summary judgment proceedings, the Court declined to extend Timken 'to a venic al arrangement by one manufacturer restricting the territory of his distributors or dealers.' 372 U.S., at 261, 83 S.Ct., at 701.
12
Timken involved agreements between United States, British, and French companies for territorial division among themselves of world markets for antifriction bearings. The agreements included fixing prices on the products of one company sold in the territory of the others; restricting imports to and exports from the United States; and excluding outside competition. This Court held that the 'aggregation of trade restraints such as those existing in this case are illegal under the (Sherman) Act.' 341 U.S., at 598, 71 S.Ct., at 974.
13
In the present case, we are also faced with an 'aggregation of trade restraints.' Since the early days of the company in 1925 and continuously thereafter, the prices to be charged by retailers to whom the licensee-stockholders of Sealy sold their products have been fixed and policed by the licensee-stockholders directly, by Sealy itself, and by collaboration between them. As the District Court found:
14
'the stockholder-licensee representatives * * * as the board of directors, the Executive Committee, or other committees of Sealy, Inc. * * * discuss, agree upon and set
15
'(a) The retail prices at which Sealy products could be sold;
16
'(b) The retail prices at which Sealy products could be advertised;
17
'(c) The comparative retail prices at which the stockholder-licensees and the Sealy retailers could advertise Sealy products;
18
'(d) The minimum retail prices below which Sealy products could not be advertised;
19
'(e) The minimum retail prices below which Sealy products could not be sold; and
20
'(f) The means of inducing and enforcing retailers to adhere to these agreed upon and set prices.'
21
These activities, as the District Court held, constitute a violation of the Sherman Act. Their anticompetitive nature and effect are so apparent and so serious that the courts will not pause to assess them in light of the rule of reason. See, e.g., United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 210—218, 60 S.Ct. 811, 838—842, 84 L.Ed. 1129 (1940); United States v. General Motors Corp., 384 U.S. 127, 147, 86 S.Ct. 1321, 1331, 16 L.Ed.2d 415 (1966).
22
Appellee has not appealed the order of the District Court enjoining continuation of this price-fixing, but the existence and impact of the practice cannot be ignored in our appraisal of the territorial limitations. In the first place, this flagrant and pervasive price-fixing, in obvious violation of the law, was, as the trial court found, the activity of the 'stockholder representatives' acting through and in collaboration with Sealy mechanisms. This underlines the horizontal nature of the enterprise, and the use of Sealy, not as a separate entity, but as an instrumentality of the individual manufacturers. In the second place, this unlawful resale price-fixing activity refutes appellee's claim that the territorial restraints were mere incidents of a lawful program of trademark licensing. Cf. Timken Roller Bearing Co. v. United States, supra.3 The territorial restraints were a part of the unlawful price-fixing and policing. As specific findings of the District Court show, they gave to each licensee an enclave in which it could and did zealously and effectively maintain resale prices, free from the danger of outside incursions. It may be true, as appellee vigorously argues, that territorial exclusivity served many other purposes. But its connection with the unlawful price-fixing is enough to require that it be condemned as an unlawful reatraint and that appellee be effectively prevented from its continued or further use.
23
It is urged upon us that we should condone this territorial limitation among manufacturers of Sealy products because of the absence of any showing that it is unreasonable. It is argued, for example, that a number of small grocers might allocate territory among themselves on an exclusive basis as incident to the use of a common name and common advertisements, and that this sort of venture should be welcomed in the interests of competition, and should not be condemned as per se unlawful. But condemnation of appellee's territorial arrangements certainly does not require us to go so far as to condemn that quite different situation, whatever might be the result if it were presented to us for decision.4 For here, the arrangements for territorial limitations are part of 'an aggregation of trade restraints' including unlawful price-fixing and policing. Timken Roller Bearing Co. v. United States, supra, 341 U.S., at 598, 71 S.Ct., at 974. Compare United States v. General Motors Corp., 384 U.S. 127, 147—148, 86 S.Ct. 1321, 1331—1332, 16 L.Ed.2d 415 (1966).5 Within settled doctrine, they are unlawful under § 1 of the Sherman Act without the necessity for an inquiry in each particular case as to their business or economic justification, their impact in the marketplace, or their reasonableness.
24
Accordingly, the judgment of the District Court is reversed and the case remanded for the entry of an appropriate decree.
25
Reversed and remanded.
26
Mr. Justice CLARK and Mr. Justice WHITE took no part in the decision of this case.
27
Mr. Justice HARLAN, dissenting.
28
I cannot agree that on this record the restrictive territorial arrangements here challenged are properly to be classified as 'horizontal,' and hence illegal per se under established antitrust doctrine. I believe that they should be regarded as 'vertical' and thus, as the Court recognizes, subject to different antitrust evaluation.
29
Sealy, Inc., is the owner of trademarks for Sealy branded bedding. Sealy licenses manufacturers in various parts of the country to produce and sell its products. In addition, Sal y provides technical and managerial services for them, conducts advertising and other promotional programs, and engages in technical research and quality control activities. The Government's theory of this case in the District Court was essentially that the allocation of territories by Sealy to its various licensees was unlawful per se because in spite of these other legitimate activities Sealy was actually a 'front' created and used by the various manufacturers of Sealy products 'to camouflage their own collusive activities. * * *' Plaintiff's Brief in Opposition to Defendants' Briefs, October 12, 1961, pp. 12, 15.
30
If such a characterization of Sealy had been proved at trial I would agree that the division of territories is illegal per se. Horizontal agreements among manufacturers to divide territories have long been held to violate the antitrust laws without regard to any asserted justification for them. See Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136; United States v. National Lead Co., 332 U.S. 319, 67 S.Ct. 1634, 91 L.Ed. 2077; Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199. The reason is that territorial divisions prevent open competition, and where they are effected horizontally by manufacturers or by sellers who in the normal course of things would be competing among themselves, such restraints are immediately suspect. As the Court noted in White Motor Co. v. United States, 372 U.S. 253, 263, 83 S.Ct. 696, 702, 9 L.Ed.2d 738, they are 'naked restraints of trade with no purpose except stifling of competition.' On the other hand, vertical restraints—that is, limitations imposed by a manufacturer on its own dealers, as in White Motor Co., supra, or by a licensor on his licensees—may have independent and valid business justifications. The person imposing the restraint cannot necessarily be said to be acting for anticompetitive purposes. Quite to the contrary, he can be expected to be acting to enhance the competitive position of his product vis-a -vis other brands.
31
With respect to vertical restrictions, it has long been recognized that in order to engage in effective interbrand competition, some limitations on interbrand competition may be necessary. Restraints of this type 'may be allowable protections against aggressive competitors or the only practicable means a small company has for breaking into or staying in business (cf. Brown Shoe Co. (v. United States, 370 U.S. 294), at 330, 82 S.Ct. 1502, at 1526, 1527, 8 L.Ed.2d 510; United States v. Jerrold Electronics Corp., D.C., 187 F.Supp. 545, 560—561, aff'd, 365 U.S. 567, 81 S.Ct. 755, 5 L.Ed.2d 806) and within the 'rule of reason." White Motor Co., supra, at 263, 83 S.Ct. at 702; see also id., at 267—272, 83 S.Ct. at 704—706 (Concurring opinion of Brennan, J.). For these reasons territorial limitations imposed vertically should be tested by the rule of reason, namely, whether in the context of the particular industry, 'the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition.' Chicago Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 244, 62 L.Ed. 683. Indeed the Court reaffirms these principles in the opinion which it announces today in United States v. Arnold, Schwinn & Co., 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249.
32
The question in this case is whether Sealy is properly to be regarded as an independent licensor which, as a prima facie matter, can be deemed to have imposed these restraints on its licensees for its own business purposes, or as equivalent to a horizontal combination of licensees, that is as simply a vehicle for effectuating horizontal arrangements between its licensees. On the basis of the findings made by the District Court, I am unable to accept the Court's classification of these restraints as horizontally contrived. The District Court made the following findings:
33
'4. The proceding (detailed factual) findings indicate the type of evidence in this record that demonstrates that there has never been a central conspiratorial purpose on the part of Sealy and its licensees to divide the United States into territories in which competitors would not compete. Their main purpose has been the proper exploitation of the Sealy name and trademarks by licensing bedding manufacturers to manufacture and sell Sealy products in exchange for royalties to Sealy. The fact remains that each licensee was restricted in the territory in which he could manufacture and sell Sealy products. However, the record shows that this restriction was imposed by Sealy and was also secondary, or ancillary, to the main purpose of Sealy's license contracts.
34
'119. Plaintiff's evidence, read as a whole, conclusively proves that the Sealy licensing arrangements were developed in the early 1920's for entirely legitimate business purposes, including royalty income to Sugar Land Industries, which owned the Sealy name, trademarks and patents, and the benefits to licensees of joint purchasing, research, engineering, advertising and merchandising. These objectives were carried out by successor companies, including defendant, whose activities have been directed not toward market division among licensees but toward obtaining additional licensees and more intensive sales coverage.'
35
The Solicitor General in presenting the appeal to this Court stated explicitly that he did not contend 'that Sealy, Inc. was no more than a facade for a conspiracy to suppress competition,' Brief, p. 12, since it admittedly did have genuine and lawful purposes. For me these District Court findings, which the Government accepts for purposes of this appeal, take this case out of the category of horizontal agreements, and thus out of the per se category as well.1 Sealy has wholly ligitimate interests and purposes of its own: it is engaged in vigorous interbrand competition with large integrated bedding manufacturers and with retail chains selling their own products.2 Sealy's goal is to maximize sales of its products nationwide, and thus to maximize its royalties. The test under such circumstances should be the same as that governing other vertical relationships, namely, whether in the context of the market structure of this industry, these territorial restraints are reasonable business practices, given the true purposes of the antitrust laws. See White Motor Co., supra; Sandura Co. v. FTC, 6 Cir., 339 F.2d 847. It is true that in this case the shareholders of Sealy are the licensees. Such a relationship no doubt requires special scrutiny.3 But I cannot agree that this fact by itself automatically requires striking down Sealy's policy of territorialization. The correct approach, in my view, is to consider Sealy's corporate structure and decision-making process as one (but only one) relevant factor in determining whether the restraint is an unreasonable one. Compare United States v. Penn-Olin Chem. Co., 378 U.S. 158, 170, 84 S.Ct. 1710, 1716, 12 L.Ed.2d 775.
36
The Court in reaching its result relies heavily on the fact that these territorial limitations were part of 'an 'aggregation of trade restraints," ante, p. 354, because the District Court has held that appellee did violate the Sherman Act by engaging in unlawful price fixing. 'The territorial restraints,' the Court says, 'were a part of the unlawful price-fixing and policing,' ante, p. 356. Nothing, however, in the findings of the District Court supports this conclusion. Indeed, the opposite conclusion is the more tenable one since the District Court that found Sealy guilty of price fixing found at the same time that it had not unlawfully conspired to allocate territories. The Government has not contended here that it is entitled to an injunction against territorial restrictions as a part of its relief in the price-fixing aspect of the case. The price-fixing issue was not appealed to this Court, and we can assume that the Government will obtain adequate and effective injunctive relief from the District Court. For these reasons the Court's 'aggregation of trade restraints' theory seems to me ill-conceived.
37
I find nothing in the Court's opinion that persuades me to abandon the traditional 'rule of reason' approach to this type of business practice in the context of the facts found by the trial court. The District Court, however, made no findings in respect to this theory for judging liability since the Government insisted on trying the case in per se terms, attempting to prove only a horizontal conspiracy. Although Sealy did introduce some evidence concerning the bedding industry, the territorialization issue was not tried in the terms of the reasonableness of the territorial restrictions. A motion to suppress Sealy's subpoena seeking discovery with respect to one of its leading competitors was successfully supported by the Government,4 and no evidence directly aimed at justifying territorial limitations as a reasonable method of competition in the bedding industry was taken. Accordingly, the District Court made no findings as to such justification.
38
Although in the normal course of things I would have voted to remand the case for further proceedings and findings under the correct rules of law, I believe that since the Government deliberately chose to stand on its per se approach, and dd not prevail, it should not be able to relitigate the case on an alternative theory, especially when it opposed appellee's efforts to present the case that way.
39
I would affirm the dismissal of this aspect of the case by the District Court.
1
A nonlicensee, Bergmann, who was Sealy's president in the 1950's, owns some of the remaining stock; stockholders have preemptive rights.
2
Cf., e.g., Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951); United States v. General Motors Corp., 384 U.S. 127, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966); United States v. New Wrinkle, Inc., 342 U.S. 371, 72 S.Ct. 350, 96 L.Ed. 417 (1952); United States v. American Tobacco Co., 221 U.S. 106, 31 S.Ct. 632, 55 L.Ed. 663 (1911).
3
In Timken, as in the present case, it was argued that the restraints were reasonable steps incident to a valid trademark licensing system. But the Court summarily rejected the argument, as we do here. It pointed out that the restraints went far beyond the protection of the trademark and includd nontrademarked items, and it concluded that: 'A trademark cannot be legally used as a device for Sherman Act violation.' 341 U.S., at 599, 71 S.Ct., at 975. Cf. § 33 of the Lanham Act, 60 Stat. 438, as amended, 15 U.S.C. § 1115(b) (7). In Timken, the restraints covered nonbranded merchandise as well as the 'Timken' line. In the present case the restraints were in terms of 'Sealy products' only. As to their private label products, the licensees were free to sell outside of the given territory and, so far as appears, without resale price collaboration or enforcement. But this difference in fact is not consequential in this case. A restraint such as is here involved of the resale price of a trademarked article, not otherwise permitted by law, cannot be defended as ancillary to a trademark licensing scheme. Cf. also United States v. General Motors Corp., 384 U.S. 127, 142—143, 86 S.Ct. 1321, 1329—1330, 16 L.Ed.2d 415 (1966).
4
Cf. Northern Pacific R. Co. v. United States, 356 U.S. 1, 6—7, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958): 'As a simple example, if one of a dozen food stores in a community were to refuse to sell flour unless the buyer also took sugar it would hardly tend to restrain competition in sugar if its competitors were ready and able to sell flour by itself.'
5
MR. JUSTICE HARLAN observed, concurring in the result in United States v. General Motors Corp., 384 U.S. 127, 148—149, 86 S.Ct. 1321, 1332, 16 L.Ed.2d 415, that 'Although Parke Davis related to alleged price-fixing, I have been unable to discern any tenable reason for differentiating it from a case involving, as here, alleged boycotting.' The same conclusion would seem to apply with respect to an alleged market division, which, like price-fixing, group boycotts, and tying arrangements, has been held to be a per se violation of the Sherman Act. Northern Pacific R. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958).
1
Compare United States v. General Motors Corp., 384 U.S. 127, at 140—141, 86 S.Ct. 1321, at 1327—1328, 16 L.Ed.2d 415, where the undisputed facts as found by the District Court, proved a horizontal conspiracy among Chevrolet dealers to initiate and police a boycott of sales by dealers to discount houses. It is precisely because no such horizontal impetus was shown to exist here that I view this case differently. See my opinion concurring in the result in General Motors, 384 U.S., at 148, 86 S.Ct. at 1332.
2
The District Court made no findings as to the position of Sealy in the bedding industry, but on the basis of testimony introduced and not seriously contravened it appears that Sealy products are by no means the largest selling bedding products, that Sealy manufacturers have many competitors both nationwide and local, and that advertising—particularly nationwide advertising—is an important competitive factorin the industry.
3
The Sealy trademark was originally owned by Sugar Land Industries, and its products were manufactured by a subsidiary, Sealy Mattress Co. In the 1920's independent manufacturers were licensed to produce Sealy products, and in 1925 Sugar Land sold the trademarks to a new corporation, Sealy Corp., owned by one E. E. Edwards and the various Sealy licensees. In 1933, when the economic depression eliminated a number of Sealy producers, the corporation was reorganized into the present Sealy, Inc. At present there are about 30 licensees owning approximately 90% of the stock. This joint-venture approach was created and maintained, the District Court found, 'for entirely legitimate business purposes,' such as obtaining the benefits 'of joint purchasing, research, engineering, advertising and merchandising.' Finding 119.
4
See United States v. Serta Associates, Inc., D.C., 29 F.R.D. 136, where in a companion action against another licensor of bedding products a similar subpoena was quashed after it was opposed by the Government. The District Court there noted: 'The complaint alleges price fixing and market allocations by Serta, which it has denied. Defendant alleges the agreements made were reasonable ancillary restraints, valid under the Sherman Act, and the evidence sought by this subpoena would completely corroborate the reasonableness. The plaintiff, the Government, has also filed a brief supportive of the motion to quash the subpoena. It asserts that the complaint raises per se violations of the Sherman Act which fact renders completely irrelevant the subpoenaed material, tending to confirm the reasonableness of defendant's conduct.'
| 78
|
388 U.S. 439
87 S.Ct. 2107
18 L.Ed.2d 1300
Charles TANNENBAUMv.NEW YORK.
No. 993.
Appeal from the Court of Appeals of New York.
Osmond K. Fraenkel and Stanley Fleishman, for appellant.
Frank S. Hogan, for appellee.
Horace S. Manages, for the American Book Publishers Council, Inc., as amicus curiae.
June 12, 1967.
PER CURIAM.
1
The motion to dismiss is granted and the appeal is dismissed as moot.
2
Mr. Justice BRENNAN would reverse the judgment of the lower court.
3
Mr. Chief Justice WARREN, dissenting.
4
I dissent from the dismissal of this appeal as moot for the reasons stated in my dissent in Jacobs v. New York, 388 U.S. 431, 87 S.Ct. 2098, 18 L.Ed.2d 1294. In my view, the question presented by this case is extremely important and requires a decision on the merits by this Court. I would note probable jurisdiction and set the case for argument.
5
Mr. Justice DOULA § dissents. (See dissent set forth in Jacobs v. New York, 388 U.S., at 436, 87 S.Ct., at 2102.
| 89
|
388 U.S. 450
87 S.Ct. 2095
18 L.Ed.2d 1312
Dave ROSENBLOOMv.VIRGINIA.
No. 366.
Supreme Court of the United States
June 12, 1967
Seymour Horwitz and Melvin L. Wulf, for petitioner.
James B. Wilkinson, for respondent.
On Petition for Writ of Certiorari to the Supreme Court of Appeals of Virginia.
PER CURIAM.
1
The petition for a writ of certiorari is granted and the judgment of the Supreme Court of Appeals of Virginia is reversed. Sunshine Book Co. v. Summerfield, 355 U.S. 372, 78 S.Ct. 365, 2 L.Ed.2d 352.
2
Mr. Justice HARLAN adheres to the views expressed in his separate opinions in Roth v. United States, 354 U.S. 476, 496, 77 S.Ct. 1304, 1 L.Ed.2d 1498, and A Book Named 'John Cleland's' Memoirs of a Woman of Pleasure v. Attorney General of Com. of Massachusetts, 383 U.S. 413, 455, 86 S.Ct. 975, 16 L.Ed.2d 1, and on the basis of the reasoning set forth therein would affirm.
| 23
|
388 U.S. 1
87 S.Ct. 1817
18 L.Ed.2d 1010
Richard Perry LOVING et ux., Appellants,v.COMMONWEALTH OF VIRGINIA.
No. 395.
Argued April 10, 1967.
Decided June 12, 1967.
Philip J. Hirschkop, pro hac vice, by special leave of Court, Bernard S. Cohen, Alexandria, Va., for appellants.
R. D. McIlwaine, III, Richmond, Va., for appellee.
William M. Marutani, Philadelphia, Pa., for Japanese American Citizens League, as amicus curiae, by special leave of Court.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment.1 For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment.
2
In June 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the Lovings returned to Virginia and established their marital abode in Caroline County. At the October Term, 1958, of the Circuit Court of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia's ban on interracial marriages. On January 6, 1959, the Lovings pleaded guilty to the charge and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. He stated in an opinion that:
3
'Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.'
4
After their convictions, the Lovings took up residence in the District of Columbia. On November 6, 1963, they filed a motion in the state trial court to vacate the judgment and set aside the sentence on the ground that the statutes which they had violated were repugnant to the Fourteenth Amendment. The motion not having been decided by October 28, 1964, the Lovings instituted a class action in the United States District Court for the Eastern District of Virginia requesting that a three-judge court be convened to declare the Virginia antimiscegenation statutes unconstitutional and to enjoin state officials from enforcing their convictions. On January 22, 1965, the state trial judge denied the motion to vacate the sentences, and the Lovings perfected an appeal to the Supreme Court of Appeals of Virginia. On February 11, 1965, the three-judge District Court continued the case to allow the Lovings to present their constitutional claims to the highest state court.
5
The Supreme Court of Appeals upheld the constitutionality of the antimiscegenation statutes and, after modifying the sentence, affirmed the convictions.2 The Lovings appealed this decision, and we noted probable jurisdiction on December 12, 1966, 385 U.S. 986, 87 S.Ct. 595, 17 L.Ed.2d 448.
6
The two statutes under which appellants were convicted and sentenced are part of a comprehensive statutory scheme aimed at prohibiting and punishing interracial marriages. The Lovings were convicted of violating § 20—58 of the Virginia Code:
7
'Leaving State to evade law.—If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in § 20—59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage.'
8
Section 20—59, which defines the penalty for miscegenation, provides:
9
'Punishment for marriage.—If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years.'
10
Other central provisions in the Virginia statutory scheme are § 20—57, which automatically voids all marriages between 'a white person and a colored person' without any judicial proceeding,3 and §§ 20—54 and 1—14 which, respectively, define 'white persons' and 'colored persons and Indians' for purposes of the statutory prohibitions.4 The Lovings have never disputed in the course of this litigation that Mrs. Loving is a 'colored person' or that Mr. Loving is a 'white person' within the meanings given those terms by the Virginia statutes.
11
Virginia is now one of 16 States which prohibit and punish marriages on the basis of racial classifications.5 Penalties for miscegenation arose as an incident to slavery and have been common in Virginia since the colonial period.6 The present statutory scheme dates from the adoption of the Racial Integrity Act of 1924, passed during the period of extreme nativism which followed the end of the First World War. The central features of this Act, and current Virginia law, are the absolute prohibition of a 'white person' marrying other than another 'white person,'7 a prohibition against issuing marriage licenses until the issuing official is satisfied that the applicants' statements as to their race are correct,8 certificates of 'racial composition' to be kept by both local and state registrars,9 and the carrying forward of earlier prohibitions against racial intermarriage.10
I.
12
In upholding the constitutionality of these provisions in the decision below, the Supreme Court of Appeals of Virginia referred to its 1955 decision in Naim v. Naim, 197 Va. 80, 87 S.E.2d 749, as stating the reasons supporting the validity of these laws. In Naim, the state court concluded that the State's legitimate purposes were 'to preserve the racial integrity of its citizens,' and to prevent 'the corruption of blood,' 'a mongrel breed of citizens,' and 'the obliteration of racial pride,' obviously an endorsement of the doctrine of White Supremacy. Id., at 90, 87 S.E.2d, at 756. The court also reasoned that marriage has traditionally been subject to state regulation without federal intervention, and, consequently, the regulation of marriage should be left to exclusive state control by the Tenth Amendment.
13
While the state court is no doubt correct in asserting that marriage is a social relation subject to the State's police power, Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654 (1888), the State does not contend in its argument before this Court that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment. Nor could it do so in light of Meyer v. State of Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), and Skinner v. State of Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). Instead, the State argues that the meaning of the Equal Protection Clause, as illuminated by the statements of the Framers, is only that state penal laws containing an interracial element as part of the definition of the offense must apply equally to whites and Negroes in the sense that members of each race are punished to the same degree. Thus, the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications do not constitute an invidious discrimination based upon race. The second argument advanced by the State assumes the validity of its equal application theory. The argument is that, if the Equal Protection Clause does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of constitutionality would thus become whether there was any rational basis for a State to treat interracial marriages differently from other marriages. On this question, the State argues, the scientific evidence is substantially in doubt and, consequently, this Court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages.
14
Because we reject the notion that the mere 'equal application' of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations, we do not accept the State's contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose. The mere fact of equal application does not mean that our analysis of these statutes should follow the approach we have taken in cases involving no racial discrimination where the Equal Protection Clause has been arrayed against a statute discriminating between the kinds of advertising which may be displayed on trucks in New York City, Railway Express Agency, Inc. v. People of State of New York, 336 U.S. 106, 6 § .Ct. 463, 93 L.Ed. 533 (1949), or an exemption in Ohio's ad valorem tax for merchandise owned by a non-resident in a storage warehouse, Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959). In these cases, involving distinctions not drawn according to race, the Court has merely asked whether there is any rational foundation for the discriminations, and has deferred to the wisdom of the state legislatures. In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.
15
The State argues that statements in the Thirty-ninth Congress about the time of the passage of the Fourteenth Amendment indicate that the Framers did not intend the Amendment to make unconstitutional state miscegenation laws. Many of the statements alluded to by the State concern the debates over the Freedmen's Bureau Bill, which President Johnson vetoed, and the Civil Rights Act of 1866, 14 Stat. 27, enacted over his veto. While these statements have some relevance to the intention of Congress in submitting the Fourteenth Amendment, it must be understood that the pertained to the passage of specific statutes and not to the broader, organic purpose of a constitutional amendment. As for the various statements directly concerning the Fourteenth Amendment, we have said in connection with a related problem, that although these historical sources 'cast some light' they are not sufficient to resolve the problem; '(a)t best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among 'all persons born or naturalized in the United States.' Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect.' Brown v. Board of Education of Topeka, 347 U.S. 483, 489, 74 S.Ct. 686, 689, 98 L.Ed. 873 (1954). See also Strauder v. State of West Virginia, 100 U.S. 303, 310, 25 L.Ed. 664 (1880). We have rejected the proposition that the debates in the Thirty-ninth Congress or in the state legislatures which ratified the Fourteenth Amendment supported the theory advanced by the State, that the requirement of equal protection of the laws is satisfied by penal laws defining offenses based on racial classifications so long as white and Negro participants in the offense were similarly punished. McLaughlin v. State of Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964).
16
The State finds support for its 'equal application' theory in the decision of the Court in Pace v. State of Alabama, 106 U.S. 583, 1 S.Ct. 637, 27 L.Ed. 207 (1883). In that case, the Court upheld a conviction under an Alabama statute forbidding adultery or fornication between a white person and a Negro which imposed a greater penalty than that of a statute proscribing similar conduct by members of the same race. The Court reasoned that the statute could not be said to discriminate against Negroes because the punishment for each participant in the offense was the same. However, as recently as the 1964 Term, in rejecting the reasoning of that case, we stated 'Pace represents a limited view of the Equal Protection Clause which has not withstood analysis in the subsequent decisions of this Court.' McLaughlin v. Florida, supra, 379 U.S. at 188, 85 S.Ct. at 286. As we there demonstrated, the Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination. The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States. Slaughter-House Cases, 16 Wall. 36, 71, 21 L.Ed. 394 (1873); Strauder v. State of West Virginia, 100 U.S. 303, 307—308 2 5 L.Ed. 664 (1880); Ex parte Virginia, 100 U.S. 339, 344—345, 26 L.Ed. 676 (1880); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948); Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961).
17
There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated '(d)istinctions between citizens solely because of their ancestry' as being 'odious to a free people whose institutions are founded upon the doctrine of equality.' Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774 (1943). At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the 'most rigid scrutiny,' Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194 (1944), and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. Indeed, two members of this Court have already stated that they 'cannot conceive of a valid legislative purpose * * * which makes the color of a person's skin the test of whether his conduct is a criminal offense.' McLaughlin v. Florida, supra, 379 U.S. at 198, 85 S.Ct. at 292, (Stewart, J., joined by Douglas, J., concurring).
18
There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.11 We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.
II.
19
These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
20
Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival. Skinner v. State of Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942). See also Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry or not marry, a person of another race resides with the individual and cannot be infringed by the State.
21
These convictions must be reversed. It is so ordered.
22
Reversed.
23
Mr. Justice STEWART, concurring.
24
I have previously expressed the belief that 'it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor.' McLaughlin v. State of Florida, 379 U.S. 184, 198, 85 S.Ct. 283, 292, 13 L.Ed.2d 222 (concurring opinion). Because I adhere to that belief, I concur in the judgment of the Court.
1
Section 1 of the Fourteenth Amendment provides:
'All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'
2
206 Va. 924, 147 S.E.2d 78 (1966).
3
Section 20—57 of the Virginia Code provides:
'Marriages void without decree.—All marriages between a white person and a colored person shall be absolutely void without any decree of divorce or other legal process.' Va.Code Ann. § 20—57 (1960 Repl.Vol.).
4
Sectin 20—54 of the Virginia Code provides:
'Intermarriage prohibited; meaning of term 'white persons.' It shall hereafter be unlawful for any white person in this State to marry any save a white person, or a person with no other admixture of blood than white and American Indian. For the purpose of this chapter, the term 'white person' shall apply only to such person as has no trace whatever of any blood other than Caucasian; but persons who have one-sixteenth or less of the blood of the American Indian and have no other non-Caucasic blood shall be deemed to be white persons. All laws heretofore passed and now in effect regarding the intermarriage of white and colored persons shall apply to marriages prohibited by this chaper.' Va.Code Ann. § 20—54 (1960 Repl.Vol.).
The exception for persons with less than one-sixteenth 'of the blood of the American Indian' is apparently accounted for, in the words of a tract issued by the Registrar of the State Bureau of Vital Statistics, by 'the desire of all to recognize as an integral and honored part of the white race the descendants of John Rolfe and Pocahontas * * *.' Plecker, The New Family and Race Improvement, 17 Va.Health Bull., Extra No. 12, at 25—26 (New Family Series No. 5, 1925), cited in Wadlington, The Loving Case; Virginia's Anti-Miscegenation Statute in Historical Perspective, 52 Va.L.Rev. 1189, 1202, n. 93 (1966).
Section 1—14 of the Virginia Code provides:
Colored persons and Indians defined.—Every person in whom there is ascertainable any Negro blood shall be deemed and taken to be a colored person, and every person not a colored person having one fourth or more of American Indian blood shall be deemed an American Indian; except that members of Indian tribes existing in this Commonwealth having one fourth or more of Indian blood and less than one sixteenth of Negro blood shall be deemed tribal Indians.' Va.Code Ann. § 1—14 (1960 Repl.Vol.).
5
After the initiation of this litigation, Maryland repealed its prohibitions against interracial marriage, Md.Laws 1967, c. 6, leaving Virginia and 15 other States with statutes outlawing interracial marriage: Alabama, Ala.Const., Art. 4, § 102, Ala.Code, Tit. 14, § 360 (1958); Arkansas, Ark.Stat.Ann. § 55—104 (1947); Delaware, Del.Code Ann., Tit. 13, § 101 (1953); Florida, Fla.Const., Art. 16, § 24, F.S.A., Fla.Stat. § 741.11 (1965) F.S.A.; Georgia, Ga.Code Ann. § 53—106 (1961); Kentucky, Ky.Rev.Stat.Ann. § 402.020 (Supp.1966); Louisiana, La.Rev.Stat. § 14:79 (1950); Mississippi, Miss.Const., Art. 14, § 263, Miss.Code Ann. § 459 (1956); Missouri, Mo.Rev.Stat. § 451.020 (Supp.1966), V.A.M.S.; North Carolina, N.C.Const., Art. XIV, § 8, N.C.Gen.Stat. § 14—181 (1953); Oklahoma, Okla.Stat., Tit. 43, § 12 (Supp.1965); South Carolina, S.C.Const., Art. 3, § 33, S.C.Code Ann. § 20—7 (1962); Tennessee, Tenn.Const., Art. 11, § 14, Tenn.Code Ann. § 36 402 (1955); Vernon's Ann.Texas, Tex.Pen.Code, Art. 492 (1952); West Virginia, W.Va.Code Ann. § 4697 (1961).
Over the past 15 years, 14 States have repealed laws outlawing interracial marriages: Arizona, California, Coor ado, Idaho, Indiana, Maryland, Montana, Nebraska, Nevada, North Dakota, Oregon, South Dakota, Utah, and Wyoming.
The first state court to recognize that miscegenation statutes violate the Equal Protection Clause was the Supreme Court of California. Perez v. Sharp, 32 Cal.2d 711, 198 P.2d 17 (1948).
6
For a historical discussion of Virginia's miscegenation statutes, see Wadlington, supra, n. 4.
7
Va.Code Ann. § 20—54 (1960 Repl.Vol.).
8
Va.Code Ann. § 20—53 (1960 Repl.Vol.).
9
Va.Code Ann. § 20—50 (1960 Repl.Vol.).
10
Va.Code Ann. § 20—54 (1960 Repl.Vol.).
11
Appellants point out that the State's concern in these statutes, as expressed in the words of the 1924 Act's title, 'An Act to Preserve Racial Integrity,' extends only to the integrity of the white race. While Virginia prohibits whites from marrying any nonwhite (subject to the exception for the descendants of Pocahontas), Negroes, Orientals, and any other racial class may intermarry without statutory interference. Appellants contend that this distinction renders Virginia's miscegenation statutes arbitrary and unreasonable even assuming the constitutional validity of an official purpose to preserve 'racial integrity.' We need not reach this contention because we find the racial classifications in these statutes repugnant to the Fourteenth Amendment, even assuming an even-handed state purpose to protect the 'integrity' of all races.
| 12
|
388 U.S. 464
87 S.Ct. 2124
18 L.Ed.2d 1323
Lewis F. HADLEYv.MASSACHUSETTS.
No. 1179, Misc.
Appeal from the Supreme Judicial Court of Massachusetts.
Louis M. Nordlinger, for appellant.
Elliot L. Richardson, Atty. Gen. of Massachusetts, and Willie J. Davis, Asst. Atty. Gen., for appellee.
June 12, 1967.
PER CURIAM.
1
The motion for leave to proceed in forma pauperis is granted. The judgment is vacated and the case is remanded to the Supreme Judicial Court of Massachusetts for further consideration in light of Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930.
2
Mr. Justice CLARK, Mr. Justice HARLAN, and Mr. Justice STEWART dissent and would affirm the judgment for the reasons stated in Mr. Justice CLARK's dissenting opinion in Camara v. Municipal Court of City and County of San Francisco, 387 U.S., at 546, 87 S.Ct., at 1741.
| 01
|
388 U.S. 14
87 S.Ct. 1920
18 L.Ed.2d 1019
Jackie WASHINGTON, Petitioner,v.STATE OF TEXAS.
No. 649.
Argued March 15 and 16, 1967.
Decided June 12, 1967.
Charles W. Tessmer, Dallas, Tex., for petitioner.
Howard M. Fender, Austin, Tex., for respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
We granted certiorari in this case to determine whther the right of a defendant in a criminal case under the Sixth Amendment1 to have compulsory process for obtaining witnesses in his favor is applicable to the States through the Fourteenth Amendment,2 and whether that right wasvi olated by a state procedural statute providing that persons charged as principals, accomplices, or accessories in the same crime cannot be introduced as witnesses for each other.
2
Petitioner, Jackie Washington, was convicted in Dallas County, Texas, of murder with malice and was sentenced by a jury to 50 years in prison. The prosecution's evidence showed that petitioner, an 18-year-old youth, had dated a girl named Jean Carter until her mother had forbidden her to see him. The girl thereafter began dating another boy, the deceased. Evidently motivated by jealousy, petitioner with several other boys began driving around the City of Dallas on the night of August 29, 1964, looking for a gun. The search eventually led to one Charles Fuller, who joined the group with his shotgun. After obtaining some shells from another source, the group of boys proceeded to Jean Carter's home, where Jean, her family and the deceased were having supper. Some of the boys threw bricks at the house and then ran back to the car, leaving petitioner and Fuller alone in front of the house with the shotgun. At the sound of the bricks the deceased and Jean Carter's mother rushed out on the porch to investigate. The shotgun was fired by either petitioner or Fuller, and the deceased was fatally wounded. Shortly afterward petitioner and Fuller came running back to the car where the other boys waited, with Fuller carrying the shotgun.
3
Petitioner testified in his own behalf. He claimed that Fuller, who was intoxicated, had taken the gun from him, and that he had unsuccessfully tried to persuade Fuller to leave before the shooting. Fuller had insisted that he was going to shoot someone, and petitioner had run back to the automobile. He saw the girl's mother come out of the door as he began running, and he subsequently heard the shot. At the time, he had thought that Fuller had shot the woman. In support of his version of the facts, petitioner offered the testimony of Fuller. The record indicates that Fuller would have testified that petitioner pulled at him and tried to persuade him to leave, and that petitioner ran before Fuller fired the fatal shot.
4
It is undisputed that Fuller's testimony would have been relevant and material, and that it was vital to the defense. Fuller was the only person other than petitioner who knew exactly who had fired the shotgun and whether petitioner had at the last minute attempted to prevent the shooting. Fuller, however, had been previously convicted of the same murder and sentenced to 50 years in prison,3 and he was confined in the Dallas County jail. Two Texas statutes provided at the time of the trial in this case that persons charged or convicted as coparticipants in the same crime could not testify for one another,4 although there was no bar to their testifying for the State.5 On the basis of these statutes the trial judge sustained the State's objection and refused to allow Fuller to testify. Petitioner's conviction followed, and it was upheld on appeal by the Texas Court of Criminal Appeals. 400 S.W.2d 756. We granted certiorari. 385 U.S. 812, 87 S.Ct. 123, 17 L.Ed.2d 54. We reverse.
I.
5
We have not previously been called upon to decide whether the right of an accused to have compulsory process for obtaining witnesses in his favor, guaranteed in federal trials by the Sixth Amendment, is so fundamental and essential to a fair trial that it is incorporated in the Due Process Clause of the Fourteenth Amendment.6 At one time, it was thought that the Sixth Amendment had no application to state criminal trials.7 That view no longer prevails, and in recent years we have increasingly looked to the specific guarantees of the Sixth Amendment to determine whether a state criminal trial was conducted with due process of law. We have held that due process requires that the accused have the assistance of counsel for his defense,8 that he be confronted with the witnesses against him,9 and that he have the right to a speedy10 and public11 trial.
6
The right of an accused to have compulsory process for obtaining witnesses in his favor stands on no lesser footing than the other Sixth Amendment rights that we have previously held applicable to the States. This Court had occasion in In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948), to describe what it regarded as the most basic ingredients of due process of law. It observed that:
7
'A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense—a right to his day in court—are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by couse l.' 333 U.S., at 273, 68 S.Ct. at 507 (footnote omitted).
8
The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.
II.
9
Since the right to compulsory process is applicable in this state proceeding, the question remains whether it was violated in the circumstances of this case. The testimony of Charles Fuller was denied to the defense not because the State refused to compel his attendance, but because a state statute made his testimony inadmissible whether he was present in the courtroom or not. We are thus called upon to decide whether the Sixth Amendment guarantees a defendant the right under any circumstances to put his witnesses on the stand, as well as the right to compel their attendance in court. The resolution of this question requires some discussion of the common-law context in which the Sixth Amendment was adopted.
10
Joseph Story, in his famous Commentaries on the Constitution of the United States, observed that the right to compulsory process was included in the Bill of Rights in reaction to the notorious common-law rule that in cases of treason or felony the accused was not allowed to introduce witnesses in his defense at all.12 Although the absolute prohibition of witnesses for the defense had been abolished in England by statute before 1787,13 the Framers of the Constitution felt it necessary specifically to provide that defendants in criminal cases should be provided the means of obtaining witnesses so that their own evidence, as well as the prosecution's, might be evaluated by the jury.
11
Despite the abolition of the rule generally disqualifying defense witnesses, the common law retained a number of restrictions on witnesses who were physically and mentally capable of testifying. To the extent that they were applicable, they had the same effect of suppressing the truth that the general proscription had had. Defendants and codefendants were among the large class of witnesses disqualified from testifying on the ground of interest.14 A party to a civil or criminal case was not allowed to testify on his own behalf for fear that he might be tempted to lie. Although originally the disqualification of a codefendant appears to have been based only on his status as a party to the action, and in some jurisdictions co-indictees were allowed to testify for or against each other if granted separate trials,15 other jurisdictions came to the view that accomplices or co-indictees were incompetent to testify at least in favor of each other even at separate trials, and in spite of statutes making a defendant competent to testify in his own behalf.16 It was thought that if two persons charged with the same crime were allowed to testify on behalf of each other, 'each would try to swear the other out of the charge.'17 This rule, as well as the other disqualifications for interest, rested on the unstated premises that the right to present witnesses was subordinate to the court's interest in preventing perjury, and that erroneous decisions were best avoided by preventing the jury from hearing any testimony that might be prejured, even if it were the only testimony available on a crucial issue.18
12
The federal courts followed the common-law restrictions for a time, despite the Sixth Amendment. In United States v. Reid, 12 How. 361, 13 L.Ed. 1023 (1852), the question was whether one of two defendants jointly indicted for murder on the high seas could call the other as a witness. Although this Court expressly recognized that the Sixth Amendment was designed to abolish some of the harsh rules of the common law, particularly including the refusal to allow the defendant in a serious criminal case to present witnesses in his defense,19 it held that the rules of evidence in the federal courts were those in force in the various States at the time of the passage of the Judiciary Act of 1789, including the disqualification of defendants indicted together. The holding in United States v. Reid was not satisfactory to later generations, however, and in 1918 this Court expressly overruled it, refusing to be bound by 'the dead hand of the common-law rule of 1789,' and taking note of 'the conviction of our time that the truth is more likely to be arrived at by hearing the testimony of all persons of competent understanding who may seem to have knowledge of the facts involved in a case, leaving the credit and weight of such testimony to be determined by the jury or by the court * * *.' Rosen v. United States, 245 U.S. 467, 471, 38 S.Ct. 148, 150, 62 S.Ct. 406.
13
Although Rosen v. United States rested on nonconstitutional grounds, we believe that its reasoning was required by the Sixth Amendment. In light of the common-law history, and in view of the recognition in the Reid case that the Sixth Amendment was designed in part to make the testimony of a defendant's witnesses admissible on his behalf in court, it could hardly be argued that a State would not violate the clause if it made all defense testimony inadmissible as a matter of procedural law. It is difficult to see how the Constitution is any less violated by arbitrary rules that prevent whole categories of defense witnesses from testifying on the basis of a priori categories that presume them unworthy of belief.
14
The rule disqualifying an alleged accomplice from testifying on behalf of the defendant cannot even be defended on the ground that it rationally sets apart a group of persons who are particularly likely to commit perjury. The absurdity of the rule is amply demonstrated by the exceptions that have been made to it. For example, the accused accomplice may be called by the prosecution to testify against the defendant.20 Common sense would suggest that he often has a greater interest in lying in favor of the prosecution rather than against it, especially if he is still awaiting his own trial or sentencing. To think that criminals will lie to save their fellows but not to obtain favors from the prosecution for themselves is indeed to clothe the criminal class with more nobility than one might expect to find in the puli c at large. Moreover, under the Texas statutes, the accused accomplice is no longer disqualified if he is acquitted at his own trial. Presumably, he would them be free to testify on behalf of his comrade, secure in the knowledge that he could incriminate himself as freely as he liked in his testimony, since he could not again be prosecuted for the same offense. The Texas law leaves him free to testify when he has a great incentive to perjury, and bars his testimony in situations where he has a lesser motive to lie.
15
We hold that the petitioner in this case was denied his right to have compulsory process for obtaining witnesses in his favor because the State arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.21 The Framers of the Constitution did not intend to commit the futile act of giving to a defendant the right to secure the attendance of witnesses whose testimony he had no right to use. The judgment of conviction must be reversed. It is so ordered.
16
Reversed.
17
Mr. Justice HARLAN, concurring in the result.
18
For reasons that I have stated in my concurring opinion in Gideon v. Wainweight, 372 U.S. 335, 349, 83 S.Ct. 792, 799, 9 L.Ed.2d 799, and in 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 and in my dissenting opinion in Poe v. Ullman, 367 U.S. 497 539—545, 81 S.Ct. 1752, 1774—1778, 6 L.Ed.2d 989, I cannot accept the view that the Due Process Clause of the Fourteenth Amendment 'incorporates,' in its terms, the specific provisions of the Bill of Rights. In my view the Due Process Clause is not reducible to 'a series of isolated points,' but is rather 'a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints * * *.' Poe v. Ullman, supra, at 543, 81 S.Ct. at 1777, see Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288; Klopfer v. North Carolina, 386 U.S. 213, 226, 87 S.Ct. 988, 995, 18 L.Ed.2d 1 (opinion concurring in the result).
19
I concur in the result in this case because I believe that the State may not constitutionally forbid the petitioner, a criminal defendant, from introducing on his own behalf the important testimony of one indicted in connection with the same offense, who would not, however, be barred from testifying if called by the prosecution. Texas has put forward no justification for this type of discrimination between the prosecution and the defense in the ability to call the same person as a witness, and I can think of none.
20
In my opinion this is not, then, really a problem of 'compulsory process' at all, although the Court's incorporationist approach leads it to strain this constitutional provision to reach these peculiar statutes. Neither is it a situation in which the State has determined, as a matter of valid state evidentiary law, on the basis of general experience with a particular class of persons, as for example, the mentally incompetent1 or those previously convicted of perjury,2 that the pursuit of truth is best served by an across-the-board disqualification as witnesses of persons of that class. Compare Spencer v. State of Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606. This is rather a case in which the State has recgn ized as relevant and competent the testimony of this type of witness, but has arbitrarily barred its use by the defendant. This, I think, the Due Process Clause forbids.
1
'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.'
2
'(N)or shall any State deprive any person of life, liberty, or property, without due process of law * * *.'
3
See Fuller v. State, 397 S.W.2d 434 (Tex.Crim.App.1966).
4
'Persons charged as principals, accomplices or accessories, whether in the same or by different indictments, can not be introduced as witnesses for one another, but they may claim a severane, and if one or more be acquitted they may testify in behalf of the others.' Vernon's Ann.Tex.Pen.Code, Art. 82.
'Persons charged as principals, accomplices or accessories, whether in the same or different indictments, cannot be introduced as witnesses for one another, but they may claim a severance; and, if any one or more be acquitted, or the prosecution against them be dismissed, they may testify in behalf of the others.' Tex.Code Crim.Proc., Art. 711 (1925).
These statutory provisions were apparently repealed by implication by Art. 36.09 of the Vernon's Ann.Texas Code of Criminal Procedure of 1965, which became effective after petitioner's trial. Article 36.09 provides that 'Two or more defendants who are jointly or separately indicted or complained against for the same offense or an offense growing out of the same transaction may be, in the discretion of the court, tried jointly or separately as to one or more defendants; provided that in any event either defendant may testify for the other or on behalf of the State * * *.'
Counsel have cited no statutes from other jurisdictions, and we have found none, that flatly disqualify coparticipants in a crime from testifying for each other regardless of whether they are tried jointly or separately. To be distinguished are statutes providing that one of two or more defendants tried jointly may, if the evidence against him is insufficient, be entitled to an immediate acquittal so he may testify for the others. These statutes seem designed to allow such joint defendants to testify without incriminating themselves. See, e.g., Ala.Code, Tit. 15, § 309 (1958); Alaska Code Crim.Proc. § 12.20.060 (1962); Kan.Gen.Stat.Ann. § 62—1440 (1964).
5
Rangel v. State, 22 Tex.App. 642, 3 S.W. 788 (1887).
6
'(A) provision of the Bill of Rights which is 'fundamental and essential to a fair trial' is made obligatory upon the States by the Fourteenth Amendment.' Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 795, 9 L.Ed.2d 799 (1963).
7
See West v. State of Louisiana, 194 U.S. 258, 264, 24 S.Ct. 650, 652, 48 L.Ed. 965 (1904).
8
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
9
Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).
10
Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967).
11
In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948).
12
3 Story, Commentaries on the Constitution of the United States §§ 1786—1788 (1st ed. 1833).
13
By 1701 the accused in both treason and felony cases was allowed to produce witnesses who could testify under oath. See 2 Wigmore, Evidence § 575, at 685—686 (3d ed. 1940).
14
See generally 2 Wigmore §§ 575—576 (3d ed. 1940). We hav d iscussed elsewhere the gradual demise of the common-law rule prohibiting defendants from testifying in their own behalf. See Ferguson v. State of Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961).
15
See 2 Wigmore § 580, at 709—710 (3d ed. 1940); Henderson v. State, 70 Ala. 23, 24—25 (Dec.Term 1881); Allen v. State, 10 Ohio St. 287, 303 (Dec.Term 1859).
16
See Foster v. State, 45 Ark. 328 (1885 May Term); State v. Drake, 11 Or. 396, 4 P. 1204 (1884). Both cases have been overturned by statute. Ark.Stat.Ann. § 43—2017 (1947); Ore.Rev.Stat. § 139.315 (1965).
17
Benson v. United States, 146 U.S. 325, 335, 13 S.Ct. 60, 63, 36 L.Ed. 991 (1892).
18
'Indeed, the theory of the common law was to admit to the witness stand only those presumably honest, appreciating the sanctity of an oath, unaffected as a party by the result, and free from any of the temptations of interest. The courts were afraid to trust the intelligence of jurors.' Benson v. United States, 146 U.S. 325, 336, 13 S.Ct. 60, 63, 36 L.Ed. 991 (1892).
19
12 How., at 363—364, 13 L.Ed. 1023.
20
See n. 5, supra.
21
Nothing in this opinion should be construed as disapproving testimonial privileges, such as the privilege against self-incrimination or the lawyer-client or husband-wife privileges, which are based on entirely different considerations from those underlying the common-law disqualifications for interest. Nor do we deal in this case with nonarbitrary state rules that disqualify as witnesses persons who, because of mental infirmity of infancy, are incapable of observing events or testifying about them.
1
E.g., Cal.Civ.Proc.Code § 1880, subd. 1; Cal.Pen.Code § 1321.
2
E.g., 12 Vermont Stat.Ann., Tit. 12, § 1608. See generally 2 Wigmore, Evidence § 488 (3d ed. 1940).
| 01
|
388 U.S. 431
87 S.Ct. 2098
18 L.Ed.2d 1294
Kenneth JACOBS et al.v.NEW YORK.
No. 660.
Supreme Court of the United States
June 12, 1967
Emile Z. Berman, for appellants.
Frank S. Hogan, for appellee.
Edward De Grazia and John R. Kramer, for the National Students Association, as amicus curiae.
PER CURIAM.
1
The motion to dismiss is granted and the appeal is dismissed as moot.
2
Mr. Chief Justice WARREN, dissenting.
3
I dissent from the Court's dismissal of this appeal as moot. These appellants were convicted by a three-judge bench of the Criminal Court of New York City of violating § 1141 of the Penal Law of New York, McKinney's Consol.Laws, c. 40, which provides in pertinent part:
4
'1. A person who sells, lends, gives away, distributes, shows or transmutes * * * any obscene, lewd, lascivious, filthy, indecent, sadistic, masochistic * * * motion picture film * * * which may or may not require mechanical or other means to be transmuted into auditory, visual or sensory representations of such character. * * *
5
'2. * * * Is guilty of a misdemeanor, and, upon conviction, shall be sentenced to not less than ten days nor more than one year imprisonment * * *.'
6
On August 7, 1964, appellants Jacobs and Mekas were sentenced to 60 days in the New York City Workhouse with execution of the sentence suspended. Appellant Karpf received a suspended sentence.
7
In dismissing this appeal for mootness, the Court apparently bases is action upon the fact that under New York law, the maximum time during which appellants could have had their suspended sentences revoked and replaced by prison sentences was one year from the date of the original sentences. N.Y.Code Crim.Proc. § 470-a. The State argues that this appeal is moot because more than one year has run from August 7, 1964, and appellants are under no present threat of imprisonment. Moreover, the State contends that neither New York law nor federal law imposes any further penalty for conviction of the misdemeanor involved in this case.
8
Mr. Justice BRENNAN would affirm the judgment of the lower court.
9
Mr. Justice FORTAS would reverse the judgment of the lower court.
10
I cannot accept this argument. The practical result of the Court's willingness to dismiss this appeal as moot is that States may insulate their convictions under laws raising constitutional questions from review on the merits by this Court by the simple expedient of a suspended sentence where a time limit for the imposition of an executed sentence is short enough to run before an appeal can be taken to this Court. A State could thus keep a person under continual threat of imprisonment without review by this Court of any constitutional objections to his convictions by a continued series of convictions and suspended sentences. By the time any single conviction could be brought to this Court, the defendant's jeopardy under that particular sentence would be concluded. However, the defendant could still be oppressed by subsequent suspended sentences which would themselves be unreviewable by the time the defendant could bring his case to this Court. I cannot agree that the commands of the United States Constitution can be this easily suspended by the States. Moreover, this power, which under this dismissal can be exercised without constitutional restraint, gives the State a weapon which might in some cases be used to suppress constitutionally protected conduct. After a person has been convicted under a statute which limits his right of expression, his subsequent conduct will be significantly chilled by the conviction on his record. Particularly where, as in this case, the convictions stem from conduct which is directly in line with appellants' profession as movie exhibitors, they may justifably fear that any future conduct running the danger of infringing the statute will be more harshly treated because of the previous unreviewed conviction. Who can doubt that a judge's reaction to another conviction under § 1141 of the New York Penal Law would not be colored by the fact of a prior conviction? For example, these appellants argue in ths case that they should not be constitutionally convicted because their conduct demonstrates their good-faith belief that they were not exhibiting obscene material. They may have felt that even if a state judge did not accept their constitutional argument based on their good faith, he might at least give the appellants the most lenient sentence. However, once they have been convicted and have been unable to have the constitutionality of the conviction passed upon by this Court, their situation is radically different. Even if they have been convicted of engaging in what this Court might finally determine to be constitutionally protected conduct, they are likely to order their future conduct on the basis of the assumed validity of the previous conviction. When we are dealing with First Amendment freedoms, freedoms we have held require breathing space to survive, see New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), we should be extremely slow to accept mootness doctrines which grant the State an unreviewable power to suppress modes of expression.
11
I believe the Court is straining the mootness doctrine and in doing so is bypassing important constitutional questions in the obscenity area which this Court has an obligation to decide. In this case, we are presented with an opportunity for injecting some clarity into the problem of what constitutes obscenity, a problem which has become increasingly muddled and difficult for the federal and state courts and legislatures to understand since we first defined the reach of the First Amendment in this area in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). The questions presented are not easy, but I am sure that it is our constitutional duty to grapple with them and to present to the country an understandable statement of how far the First Amendment restricts legislative attempts to control obscene material. Similarly, the Court dismisses as moot the appeal in No. 993, Tannenbaum v. New York, 388 U.S. 439, 87 S.Ct. 2107, 18 L.Ed.2d 1300, because a jail sentence was suspended and a fine has been paid. That case raises the important question never addressed by this Court of the constitutionality of 'variable obscenity' laws which restrict the sale of obscene materials to minors on the basis of definitions of obscenity drawn expressly with minors in mind. While I do not express a view as to the merits of this question, I think the great importance of the question to the Nation, and the responsibility of this Court to elaborate the scope and meaning of the First Amendment, should require the Court to note jurisdiction and hear the case on the merits. A similar strained conception of mootness resulting in a failure of decision on the merits recalls the Court's avoidance of a constitutional decision in the short per curiam in Parker v. Ellis, 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963 (1960). I expressed the belief in that case, which I reaffirm here, that this Court has an obligation to decide, and not avoid, important constitutional questions which are concretely presented to it by litigants having adverse interest. If Congress had intended that our jurisdiction be discretionary in all cases, it would not have differentiated in the statutes defining our appellate jurisdiction between appeals and writs of certiorari.
12
As Mr. Justice DOUGLAS points out in his dissent to the dismissal for mootness in this case, there are additional reasons why this case should not be deemed moot. Appellants' film and equipment were seized by the police at the time of their arrests. Of course, if appellants were not convicted, or if their convictions were reversed, they would be entitled under state law to the return of their property. On the other hand, our dismissal leaves these convictions unchallenged, and appellants' film and equipment will be subject to forfeiture. N. Y. Penal Law § 1141-c, N.Y.Cod C rim.Proc. § 22-a. Thus, appellants have a clear pecuniary interest in the outcome of this appeal. Appellants also point to the likelihood that these convictions will impair their ability to secure a license to operate a motion picture theater. Under the Administrative Code of the City of New York, which establishes a comprehensive system of licensing procedures, the Department of Licenses is charged with assuring that motion picture theatres are not offensive to 'public morals.' § B32-26.0. These convictions will surely affect appellants' ability to procure a license to exhibit motion pictures in the future.
13
Since I believe this appeal cannot be dismissed as moot, I believe the Court must consider the case on the merits. I am satisfied that these convictions should be affirmed. Under the standards set out by the Court in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), this film is not within the protections of the First Amendment. We formulated the test in that case as being whether the material was utterly without social value, whether it went substantially beyond customary limits of candor in representing sexual matters, and whether 'to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' Id., at 489, 77 S.Ct. at p. 1311. This film falls outside the range of expression protected by the First Amendment according to the criteria set out in Roth.
14
For the reasons I have given, I would consider this appeal on the merits and I would affirm these convictions.
15
Mr. Justice DOUGLAS, dissenting.
16
We have here two cases in which appellants have been convicted under a State's obscenity statutes. In No. 660, appellants were convicted of showing an allegedly obscene motion picture. They were given suspended sentences and the time during which the suspended sentences could have been revoked and prison sentences imposed has now passed. In No. 993, 388 U.S. 439, 87 S.Ct. 2107, 18 L.Ed.2d 1300, appellant was convicted of selling an allegedly obscene magazine to a person under 18. He was sentenced to 30 days and fined $100. The fine has been paid and the sentence was suspended. The First Amendment issues in these cases are substantial. Nonetheless, they are dismissed as moot because the appellants are no longer subject to the custody of the State and in No. 993 the fine has been paid. The Court apparently believes this result to be commanded by our prior cases. I disagree.
17
The mootness doctrine is expressive of the need for antagonistic parties whose vigorous argument will sharpen the issues. It is part of the 'case or controversy' requirement of Article III. St. Pierre v. United States, 319 U.S. 41, 42, 63 S.Ct. 910, 87 L.Ed. 1199. But it is not so rigid as to defeat substantial rights, nor so inflexible as to prevent this Court from facing serious constitutional questions. Thus, we have held that service of a sentence does not render a case moot where the conviction, if allowed to stand, will result in collateral disabilities such as a loss of civil rights. Fiswick v. United States, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196; United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248.
18
In the present cases, we are in the area of the First Amendment. Over and over again we have stressed that First Amendment rights need 'breathing space to survive' (NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405); and we have been watchful lest coercive measures exercise an in terrorem effect which intimidates people from exercising their First Amendment rights. See, e.g., Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460; NAACP v. Button, supra; Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629. We have been mindful that '[t]he threat of sanctions may deter * * * almost as potently as the actual application of sanctions.' NAACP v. Button, supra, 371 U.S. at 433, 83 S.Ct. at 338. Accordng ly, we have modified traditional rules of standing and prematurity to fit the peculiarities necessary to ensure adequate protection of First Amendment rights. See Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22.
19
The in terrorem effect of denying review to cases such as these because sentences have been suspended or short sentences served is obvious. Sentences for violations of obscenity statutes are often suspended and generally short. If those convicted cannot obtain ultimate review of such convictions, merely because of the shortness of the sentences and the slowness of the judicial process, many will choose to comply with what may be an invalid statute. Many may steer wide and refrain from showing or selling protected material. First Amendment rights are thus stifled. If a practice such as this were shown to exist, its in terrorem effect on all publishers would certainly be sufficiently clear as to give any of them standing to bring an action for declaratory relief. Its in terrorem effect on a publisher who has actually felt the harsh impact of the law is so obvious that its continuing deterrent effect upon him should keep his case from becoming moot.
20
In No. 660, appellants' film and motion picture equipment were seized at the time of their arrests. They argue that at the conclusion of this proceeding they can bring an action to recover possession of the film and equipment. If their convictions are allowed to stand, along with the holding that the film is obscene, the film and equipment will be subject to forfeiture. They also argue that the department of licenses may suspend their motion picture theater license on the ground that they have shown obscene pictures. Perhaps they could relitigate the question of the film's obscenity in such proceedings. That is, of course, a matter of state law. But if appellants are correct, the convictions may entail sufficient collateral consequences that distinguish them from St. Pierre v. United States, supra, and bring them within the Fiswick and Morgan cases.
21
The questions of mootness loom so large in the setting of the First Amendment that they should at least be briefed and argued.
| 89
|
388 U.S. 41
87 S.Ct. 1873
18 L.Ed.2d 1040
Ralph BERGER, Petitioner,v.STATE OF NEW YORK.
No. 615.
Argued April 13, 1967.
Decided June 12, 1967.
Showing of exigent circumstances is more important in obtaining eavesdropping permit than when conventional procedures of search and seizure are utilized. U.S.C.A.Const. Amends. 4, 14. Id.m
[Syllabus from pages 41-42 intentionally omitted]
Joseph E. Brill, New York City, for petitioner.
H. Richard Uviller, New York City, for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
This writ tests the validity of New York's permissive eavesdrop statute, N.Y. Code Crim.Proc. § 813—a,1 under the Fourth, Fifth, Ninth, and Fourteenth Amendments. The claim is that the statute sets up a system of surveillance which involves trespassory intrusions into private, constitutionally protected premises, authorizes 'generalse arches' for 'mere evidence,'2 and is an invasion of the privilege against self-incrimination. The trial court upheld the statute, the Appellate Division affirmed without opinion, 25 A.D.2d 718, 269 N.Y.S.2d 368, and the Court of Appeals did likewise by a divided vote. 18 N.Y.2d 638, 272 N.Y.S.2d 782, 219 N.E.2d 295. We granted certiorari, 385 U.S. 967, 87 S.Ct. 505, 17 L.Ed.2d 432 (1966). We have concluded that the language of New York's statute is too broad in its sweep resulting in a trespassory intrusion into a constitutionally protected area and is, therefore, violative of the Fourth and Fourteenth Amendments. This disposition obviates the necessity for any discussion of the other points raised.
I.
2
Berger, the petitioner, was convicted on two counts of conspiracy to bribe the Chairman of the New York State Liquor Authority. The case arose out of the complaint of one Ralph Pansini to the District Attorney's office that agents of the State Liquor Authority had entered his bar and grill and without cause seized his books and records. Pansini asserted that the raid was in reprisal for his failure to pay a bribe for a liquor license. Numerous complaints had been filed with the District Attorney's office charging the payment of bribes by applicants for liquor licenses. On the direction of that office, Pansini, while equipped with a "minifon" recording device, interviewed an employee of the Authority. The employee advised Pansini that the price for a license was $10,000 and suggested that he contact attorney Harry Neyer. Neyer subsequently told Pansini that he worked with the Authority employee before and that the latter was aware of the going rate on liquor licenses downtown.
3
On the basis of this evidence an eavesdrop order was obtained from a Justice of the State Supreme Court, as provided by § 813—a. The order permitted the installation, for a period of 60 days, of r ecording device in Neyer's office. On the basis of leads obtained from this eavesdrop a second order permitting the installation, for a like period, of a recording device in the office of one Harry Steinman was obtained. After some two weeks of eavesdropping a conspiracy was uncovered involving the issuance of liquor licenses for the Playboy and Tenement Clubs, both of New York City. Petitioner was indicted as 'a go-between' for the principal conspirators, who though not named in the indictment were disclosed in a bill of particulars. Relevant portions of the recordings were received in evidence at the trial and were played to the jury, all over the objection of the petitioner. The parties have stipulated that the District Attorney 'had no information upon which to proceed to present a case to the Grand Jury, or on the basis of which to prosecute' the petitioner except by the use of the eavesdrop evidence.
II.
4
Eavesdropping is an ancient practice which at common law was condemned as a nuisance. 4 Blackstone, Commentaries 168. At one time the eavesdropper listened by naked ear under the eaves of houses or their windows, or beyond their walls seeking out private discourse. The awkwardness and undignified manner of this method as well as its susceptibility to abuse was immediately recognized. Electricity, however, provided a better vehicle and with the advent of the telegraph surreptitious interception of messages began. As early as 1862 California found it necessary to prohibit the practice by statute. Statutes of California 1862, p. 288, CCLX II. During the Civil War General J. E. B. Stuart is reputed to have had his own eavesdropper along with him in the field whose job it was to intercept military communications of the opposing forces. Subsequently newspapers reportedly raided one another's news gathering lines to save energy, time, and money. Racing news was likewise intercepted and flashed to bettors before the official result arrived.
5
The telephone brought on a new and more modern eavesdropper known as the "wiretapper." Interception was made by a connection with a telephone line. This activity has been with us for three-quarters of a century. Like its cousins, wiretapping proved to be a commercial as well as a police technique. Illinois outlawed it in 1895 and in 1905 California extended its telegraph interception prohibition to the telephone. Some 50 years ago a New York legislative committee found that police, in cooperation with the telephone company, had been tapping telephone lines in New York despite an Act passed in 1895 prohibiting it. During prohibition days wiretaps were the principal source of information relied upon by the police as the basis for prosecutions. In 1934 the Congress outlawed the interception without authorization, and the divulging or publishing of the contents of wiretaps by passing § 605 of the Communications Act of 1934.3 New York, in 1938, declared by constitutional amendment that "(t)he right of the people to be secured against unreasonable interception of telephone and telegraph communications shall not be violated," but permitted by ex parte order of the Supreme Court of the State the interception of communications on a showing of "reasonable ground to believe that evidence of crime" might be obtained. N.Y.Const. Art. I, § 12.
6
Sophisticated electronic devices have now been developed (commonly known as "bugs") which are capable of eavesdropping on anyone in most any given situation. They are to be distinguished from "wiretaps" which are confined to the interception of telegraphic and telephonic communications. Miniature in size (3/8 3/8 1/8 )—no larger than a postage stamp these gadgets pick up whispers within a room and broadcast them half a block away to a receiver. It is said that certain types of electronic rays beamed at walls or glass windows are capable of catching voice vibrations as they are bounced off the surfaces. Since 1940 eaes dropping has become a big business. Manufacturing concerns offer complete detection systems which automatically record voices under almost any conditions by remote control. A microphone concealed in a book, a lamp, or other unsuspected place in a room, or made into a fountain pen, tie clasp, lapel button, or cuff link increases the range of these powerful wireless transmitters to a half mile. Receivers pick up the transmission with interference-free reception on a special wave frequency. And, of late, a combination mirror transmitter has been developed which permits not only sight but voice transmission up to 300 feet. Likewise, parabolic microphones, which can overhear conversations without being placed within the premises monitored, have been developed. See Westin, Science, Privacy, and Freedom: Issues and Proposals for the 1970's, 66 Col.L.Rev. 1003, 1005-1010.
7
As science developed these detection techniques, law makers, sensing the resulting invasion of individual privacy, have provided some statutory protection for the public. Seven states, California, Illinois, Maryland, Massachusetts, Nevada, New York, and Oregon, prohibit surreptitious eavesdropping by mechanical or electronic device.4 However, all save Illinois permit official courtordered eavesdropping. Some 36 states prohibit wiretapping.5 But of these, 27 permit 'authorized' interception of some type. Federal law, as we have seen, prohibits interception and divulging or publishing of the content of wiretaps without exception.6 In sum, it is fair to say that wiretapping on the whole is outlawed, except for permissive use by law enforcement officials in some states; while electronic eaesdropping is—save for seven states—permitted both officially and privately. And, in six of the seven states, electronic eavesdropping ('bugging') is permissible on court order.
III.
8
The law, though jealous of individual privacy, has not kept pace with these advances in scientific knowledge. This is not to say that individual privacy has been relegated to a second-class position for it has been held since Lord Camden's day that intrusions into it are "subversive of all the comforts of society." Entick v. Carrington, 19 How.St.Tr. 1029, 1066 (1765). And the Founders so decided a quarter of a century later when they declared in the Fourth Amendment that the people had a right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures * * *." Indeed, that right, they wrote, "shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Almost a century thereafter this Court took specific and lengthy notice of Entick v. Carrington, supra, finding that its holding was undoubtedly familiar in the minds of those who framed the fourth amendment * * *. Boyd v. United States, 116 U.S. 616, 626-627, 6 S.Ct. 524, 530, 29 L.Ed. 746 (1886). And after quoting from Lord Camden's opinion at some length, Mr. Justice Bradley characterized it thus:
9
"The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case * * * they apply to all invasions on the part of the government and its employe § of the sanctity of a man's home and the privacies of life." At 630, 6 S.Ct. at 532.
10
Boyd held unconstitutional an Act of the Congress authorizing a court of the United States to require a defendant in a revenue case to produce in court his private books, invoices, and papers or else the allegations of the Government were to be taken as confessed. The Court found that "the essence of the offense * * * (was) the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment." Ibid. The Act the Court found—violated the Fourth Amendment in that it authorized a general search contrary to the Amendment's guarantee.
11
The Amendment, however, carried no criminal sanction, and the federal statutes not affording one, the Court in 1914 formulated and pronounced the federal exclusionary rule in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. Prohibiting the use in federal courts of any evidence seized in violation of the Amendment, the Court held:
12
"The effect of the 4th Amendment is to put the courts of the United States * * * under limitations and restraints as to the exercise of such power * * * and to forever secure the people * * * against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all * * *. The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures * * * should find no sanction in the judgments of the courts, which are charged at all times with the support of the Constitution, and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights." At 391-392, 34 S.Ct. at 344.
IV.
13
The Court was faced with its first wiretap case in 1928, Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944. There the interception of Olmstead's telephone line was accomplished without entry upon his premises and was, therefore, found not to be proscribed by the Fourth Amendment. The basis of the decision was that the Constitution did not forbid the obtaining of evidence by wiretapping unless it involved actual unlawful entry into the house. Statements in the opinion that a conversation passing over a telephone wire cannot be said to come within the Fourth Amendment's enumeration of 'persons, houses, papers, and effects' have been negated by our subsequent cases as hereinafter noted. They found 'conversation' was within the Fourth Amendment's protections, and that the use of electronic devices to capture it was a 'search' within the meaning of the Amendment, and we so hold. In any event, Congress soon thereafter, and some say in answer to Olmstead, specifically prohibited the interception without authorization and the divulging or publishing of the contents of telephonic communications. And the Nardone cases (Nardone v. United States), 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314 (1937) and 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939), extended the exclusionary rule to wiretap evidence offered in federal prosecutions.
14
The first "bugging" case reached the Court in 1942 in Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322. There the Court found that the use of a detectaphone placed against an office wall in order to hear private conversations in the office next door did not violate the Fourth Amendment because there was no physical trespass in connection with the relevant interception. And in On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952), we found that since "no trespass was committed" a conversation between Lee and a federal agent, occurring in the former's laundry and electronically recorded, was not condemned by the Fourth Amendment. Thereafter in Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961), the Court found "that the eavesdropping was accomplished by means of an unauthorized physical penetration into the premises occupied by the petitioners." At 509, 81 S.Ct. at 681. A spike a foot long with a microphone attached to it was inserted under a baseboard into a party wall until it made contact with the heating duct that ran through the entire house occupied by Silverman, making a perfect sounding board through which the conversations in question were overheard. Significantly, the Court held that its decision did "not turn upon the technicality of a trespass upon a party wall as a matter of local law. It is based upon the reality of an actual intrusion into a constitutionally protected area." At 512, 81 S.Ct. at 683.
15
In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the Court for the first time specifically held that verbal evidence may be the fruit of official illegality under the Fourth Amendment along with the more common tangible fruits of unwarranted intrusion. It used these words:
16
"The exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion. It follows from our holding in Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734, that the Fourth Amendment may protect against the overhearing of verbal statements as well as against the more traditional seizure of 'papers and effects.' " At 485, 83 S.Ct. at 416.
17
And in Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963), the Court confirmed that it had "in the past sustained instances of "electronic eavesdropping" against constitutional challenge, when devices have been used to enable government agents to overhear conversations which would have been beyond the reach of the human ear. * * * It has been insisted only that the electronic device not be planted by an unlawful physical invasion of a constitutionally protected area." At 438-439, 83 S.Ct. at 1387. In this case a recording of a conversation between a federal agent and the petitioner in which the latter offered the agent a bribe was admitted in evidence. Rather than constituting "eavesdropping" the Court found that the recording "was used only to obtain the most reliable evidence possible of a conversation in which the Government's own agent was a participant and which that agent was fully entitled to disclose." At 439, 83 S.Ct. at 1388.
V.
18
It is now well settled that "the Fourth Amendment's right of privacy has bee d eclared enforceable against the States through the Due Process Clause of the Fourteenth" Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961). 'The security of one's privacy against arbitrary intrusion by the police—which is at the core of the Fourth Amendment—is basic to a free society.' Wolf v. People of State of Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 (1949). And its "fundamental protections * * * are guaranteed * * * against invasion by the States." Stanford v. State of Texas, 379 U.S. 476, 481, 85 S.Ct. 506, 509, 13 L.Ed.2d 431 (1965). This right has most recently received enunciation in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930. "The basic purpose of this Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." At 528, 87 S.Ct. at 1730. Likewise the Court has decided that while the "standards of reasonableness" required under the Fourth Amendment are the same under the Fourteenth, they "are not susceptible of Procrustean application * * *." Ker v. State of California, 374 U.S. 23, 33, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726 (1963). We said there that "the reasonableness of a search is * * * (to be determined) by the trial court from the facts and circumstances of the case and in the light of the "fundamental criteria" laid down by the Fourth Amendment and in opinions of this Court applying that Amendment." Ibid.
19
We, therefore, turn to New York's statute to determine the basis of the search and seizure authorized by it upon the order of a state supreme court justice, a county judge or general sessions judge of New York County. Section 813-a authorizes the issuance of an "ex parte order for eavesdropping" upon "oath or affirmation of a district attorney, or of the attorney-general or of an officer above the rank of sergeant of any police department of the state or of any political subdivision thereof * * *." The oath must state "that there is reasonable ground to believe that evidence of crime may be thus obtained, and particularly describing the person or persons whose communications, conversations or discussions are to be overheard or recorded and the purpose thereof, and * * * identifying the particular telephone number or telegraph line involved." The judge "may examine on oath the applicant and any other witness he may produce and shall satisfy himself of the existence of reasonable grounds for the granting of such application." The order must specify the duration of the eavesdrop not exceeding two months unless extended—and "(a)ny such order together with the papers upon which the application was based, shall be delivered to and retained by the applicant as authority for the eavesdropping authorized therein."
20
While New York's statute satisfies the Fourth Amendment's requirement that a neutral and detached authority be interposed between the police and the public, Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948), the broad sweep of the statute is immediately observable. It permits the issuance of the order, or warrant for eavesdropping, upon the oath of the attorney general, the district attorney or any police officer above the rank of sergeant stating that "there is reasonable ground to believe that evidence of crime may be thus obtained * * *." Such a requirement raises a serious probablecause question under the Fourth Amendment. Under it warrants may only issue "but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Probable cause under the Fourth Amendment exists where the facts and circumstances within the affiant's knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925); Husty v. United States, 282 U.S. 694, 700-701, 51 S.Ct. 240, 241-242, 75 L.Ed. 629 (1931); Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879 (1949).
21
It is said, however, by the petitioner, and the State agrees, that the "reasonable ground" requirement of § 813-a "is undisputedly equivalent to the probable cause requirement of the Fourth Amendment." This is indicated by People v. Grossman, 45 Misc.2d 557, 257 N.Y.S.2d 266, reversed on other grounds, 27 A.D.2d 572, 276 N.Y.S.2d 168. Also see People v. Beshany, 43 Misc.2d 521, 252 N.Y.S.2d 110. While we have found no case on the point by New York's highest court, we need not pursue the question further because we have concluded that the statute is deficient on its face in other respects. Since petitioner clearly has standing to challenge the statute, being indisputably affected by it, we need not consider either the sufficiency of the affidavits upon which the eavesdrop orders were based, or the standing of petitioner to attack the search and seizure made thereunder.
22
The Fourth Amendment commands that a warrant issue not only upon probable cause supported by oath or affirmation, but also "particularly describing the place to be searched, and the persons or things to be seized." New York's statute lacks this particularization. It merely says that a warrant may issue on reasonable ground to believe that evidence of crime may be obtained by the eavesdrop. It lays down no requirement for particularity in the warrant as to what specific crime has been or is being committed, nor "the place to be searched," or "the persons or things to be seized" as specifically required by the Fourth Amendment. The need for particularity and evidence of reliability in the showing required when judicial authorization of a search is sought is especially great in the case of eavesdropping. By its very nature eavesdropping involves an intrusion on privacy that is broad in scope. As was said in Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966), the 'indiscriminate use of such devices in law enforcement raises grave constitutional questions under the Fourth and Fifth Amendments,' and imposes "a heavier responsibility on this Court in its supervision of the fairness of procedures * * *." At 329, n. 7, 87 S.Ct. at 433. There, two judges acting jointly authorized the installation of a device on the person of a prospective witness to record conversations between him and an attorney for a defendant then on trial in the United States District Court. The judicial authorization was based on an affidavit of the witness setting out in detail previous conversations between the witness and the attorney concerning the bribery of jurors in the case. The recording device was, as the Court said, authorized "under the most precise and discriminate circumstances, circumstances which fully met the 'requirement of particularity' " of the Fourth Amendment. The Court was asked to exclude the evidence of the recording of the conversations seized pursuant to the order on constitutional grounds, Weeks v. United States supra, or in the exercise of supervisory power, McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943). The Court refused to do so finding that the recording, although an invasion of the privacy protected by the Fourth Amendment, was admissible because of the authorization of the judges, based upon "a detailed factual affidavit alleging the commission of a specific criminal offense directly and immediately affecting the administration of justice * * * for the narrow and particularized purpose of ascertaining the truth of the affidavit's allegations." At 330, 87 S.Ct. at 433. The invasion was lawful because there was sufficient proof to obtain a search warrant to make the search for the limited purpose outlined in the order of he judges. Through these "precise and discriminate" procedures the order authorizing the use of the electronic device afforded similar protections to those that are present in the use of conventional warrants authorizing the seizure of tangible evidence. Among other safeguards, the order described the type of conversation sought with particularity, thus indicating the specific objective of the Government in entering the constitutionally protected area and the limitations placed upon the officer executing the warrant. Under it the officer could not search unauthorized areas; likewise, once the property sought, and for which the order was issued, was found the officer could not use the order as a passkey to further search. In addition, the order authorized one limited intrusion rather than a series or a continuous surveillance. And, we note that a new order was issued when the officer sought to resume the search and probable cause was shown for the succeeding one. Moreover, the order was executed by the officer with dispatch, not over a prolonged and extended period. In this manner no greater invasion of privacy was permitted than was necessary under the circumstances. Finally the officer was required to and did make a return on the order showing how it was executed and what was seized. Through these strict precautions the danger of an unlawful search and seizure was minimized.
23
By contrast, New York's statute lays down no such "precise and discriminate" requirements. Indeed, it authorizes the "indiscriminate use" of electronic devices as specifically condemned in Osborn. "The proceeding by search warrant is a drastic one," Sgro v. United States, 287 U.S. 206, 210, 53 S.Ct. 138, 140, 77 L.Ed. 260 (1932), and must be carefully circumscribed so as to prevent unauthorized invasions of "the sanctity of a man's home and the privacies of life." Boyd v. United States, supra, 116 U.S. 616, 630, 6 S.Ct. 524, 532. New York's broadside authorization rather than being "carefully circumscribed" so as to prevent unauthorized invasions of privacy actually permits general searches by electronic devices, the truly offensive character of which was first condemned in Entick v. Carrington, 19 How.St.Tr. 1029, and which were then known as 'general warrants.' The use of the latter was a motivating factor behind the Declaration of Independence. In view of the many cases commenting on the practice it is sufficient here to point out that under these "general warrants" customs officials were given blanket authority to conduct general searches for goods imported to the Colonies in violation of the tax laws of the Crown. The Fourth Amendment's requirement that a warrant "particularly describ(e) the place to be searched, and the persons or things to be seized," repudiated these general warrants and "makes general searches * * * impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant." Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927); Stanford v. State of Texas, supra.
24
We believe the statute here is equally offensive. First, as we have mentioned, eavesdropping is authorized without requiring belief that any particular offense has been or is being committed; nor that the "property" sought, the conversations, be particularly described. The purpose of the probablecause requirement of the Fourth Amendment, to keep the state out of constitutionally protected areas until it has reason to believe that a specific crime has been or is being committed, is thereby wholly aborted. Likewise the statute's failure to describe with particularity the conversations sought gives the officer a roving commission to "seize" any and all conversations. It is true that the statute requires the naming of "the person or persons whose communications, conversations or discussions are to be overheard or recorded * * *." But ths does no more than identify the person whose constitutionally protected area is to be invaded rather than "particularly describing" the communications, conversations, or discussions to be seized. As with general warrants this leaves too much to the discretion of the officer executing the order. Secondly, authorization of eavesdropping for a two-month period is the equivalent of a series of intrusions, searches, and seizures pursuant to a single showing of probable cause. Prompt execution is also avoided. During such a long and continuous (24 hours a day) period the conversations of any and all persons coming into the area covered by the device will be seized indiscriminately and without regard to their connection with the crime under investigation. Moreover, the statute permits, and there were authorized here, extensions of the original two-month period—presumably for two months each—on a mere showing that such extension is "in the public interest." Apparently the original grounds on which the eavesdrop order was initially issued also form the basis of the renewal. This we believe insufficient without a showing of present probable cause for the continuance of the eavesdrop. Third, the statute places no termination date on the eavesdrop once the conversation sought is seized. This is left entirely in the discretion of the officer. Finally, the statute's procedure, necessarily because its success depends on secrecy, has no requirement for notice as do conventional warrants, nor does it overcome this defect by requiring some showing of special facts. On the contrary, it permits uncontested entry without any showing of exigent circumstances. Such a showing of exigency, in order to avoid notice would appear more important in eavesdropping, with its inherent dangers, than that required when conventional procedures of search and seizure are utilized. Nor does the statute provide for a return on the warrant thereby leaving full discretion in the officer as to the use of seized conversations of innocent as well as guilty parties. In short, the statute's blanket grant of permission to eavesdrop is without adequate judicial supervision or protective procedures.
VI.
25
It is said with fervor that electronic eavesdropping is a most important technique of law enforcement and that outlawing it will severely cripple crime detection. The monumental report of the President's Commission on Law Enforcement and Administration of Justice entitled "The Challenge of Crime in a Free Society" informs us that the majority of law enforcement officials say that this is especially true in the detection of organized crime. As the Commission reports, there can be no question about the serious proportions of professional criminal activity in this country. However, we have found no empirical statistics on the use of electronic devices (bugging) in the fight against organized crime. Indeed, there are even figures available in the wiretap category which indicate to the contrary. See District Attorney Silver's Poll of New York Prosecutors, in Dash, Schwartz & Knowlton. The Eavesdroppers 105, 117-119 (1959). Also see Semerjian, Proposals on Wiretapping in Light of Recent Senate Hearings, 45 B.U.L.Rev. 217, 229. As the Commission points out, "(w)iretapping was the mainstay of the New York attack against organized crime until Federal court decisions intervened. Recently chief reliance in some offices has been placed on bugging, where the information is to be used in court. Law enforcement officials believe that the successes achieved in some parts of the State are attributable primarily to a combination of dedicated and competent personnel and adequate legal tools; and that the failure to do more in New York has resulted primarily from the failure to commit additional resources of time and men," rather than electronic devices. At 201-202. Moreover, Brooklyn's District Attorney Silver's poll of the State of New York indicates that during the 12-year period (1942-1954) duly authoried wiretaps in bribery and corruption cases constituted only a small percentage of the whole. It indicates that this category involved only 10% of the total wiretaps. The overwhelming majority were in the categories of larceny, extortion, coercion, and blackmail, accounting for almost 50%. Organized gambling was about 11%. Statistics are not available on subsequent years. Dash, Schwartz & Knowlton, supra, at 40.
26
An often repeated statement of District Attorney Hogan of New York County was made at a hearing before the Senate Judiciary Committee at which he advocated the amendment of the Communications Act of 1934, supra, so as to permit "telephonic interception" of conversations. As he testified, "Federal statutory law (the 1934 Act) has been interpreted in such a way as to bar us from divulging wiretap evidence, even in the courtroom in the course of criminal prosecution." Mr. Hogan then said that "(w)ithout it (wiretaps) my own office could not have convicted" "top figures in the underworld." He then named nine persons his office had convicted and one on whom he had furnished "leads" secured from wiretaps to the authorities of New Jersey. Evidence secured from wiretaps, as Mr. Hogan said, was not admissible in "criminal prosecutions." He was advocating that the Congress adopt a measure that would make it admissible; Hearings on S. 2813 and S. 1495, before the Senate Committee on the Judiciary, 87 Cong., 2d Sess., pp. 173, 174 (1962). The President's Commission also emphasizes in its report the need for wiretapping in the investigation of organized crime because of the telephone's "relatively free use" by those engaged in the business and the difficulty of infiltrating their organizations. P. 201. The Congress, though long importuned, has not amended the 1934 Act to permit it.
27
We are also advised by the Solicitor General of the United States that the Federal Government has abandoned the use of electronic eavesdropping for "prosecutorial purposes." See Supplemental Memorandum, Schipani v. United States, No. 504, October Term, 1966, 385 U.S. 372, 87 S.Ct. 533, 17 L.Ed.2d 428. See also Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26 (1966); O'Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94 (1967); Hoffa v. United States, 387 U.S. 231, 87 S.Ct. 1583, 18 L.Ed.2d 738 (1967); Markis v. United States (Moretti v. United States) 387 U.S. 425, 87 S.Ct. 1709, 18 L.Ed.2d 864. Despite these actions of the Federal Government there has been no failure of law enforcement in that field.
28
As The Chief Justice said in concurring in the result in Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462, "the fantastic advances in the field of electronic communication constitute a great danger to the privacy of the individual; * * * indiscriminate use of such devices in law enforcement raises grave constitutional questions under the Fourth and Fifth Amendments * * *." At 441 of 373 U.S., at 1389 of 83 S.Ct.
29
In any event we cannot forgive the requirements of the Fourth Amendment in the name of law enforcement. This is no formality that we require today but a fundamental rule that has long been recognized as basic to the privacy of every home in America. While "(t)he requirements of the Fourth Amendment are not inflexible, or obtusely unyielding to the legitimate needs of law enforcement," Lopez v. United States, supra, at 464, 83 S.Ct. at 1404 (dissenting opinion of Brennan, J.), it is not asking too much that officers be required to comply with the basic command of the Fourth Amendment before the innermost secrets of one's home or office are invaded. Few threats to liberty exist which are greater than that posed by the use of eavesdropping devices. Some may claim that without the use of such devices crime detection in certain areas may suffer some delays since eavesdropping is quicker, easier, and more certain. However, techniques and practices may well be developed that will operate just as speeil y and certainly and—what is more important—without attending illegality.
30
It is said that neither a warrant nor a statute authorizing eavesdropping can be drawn so as to meet the Fourth Amendment's requirements. If that be true then the "fruits" of eavesdropping devices are barred under the Amendment. On the other hand this Court has in the past, under specific conditions and circumstances, sustained the use of eavesdropping devices. See Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322; On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270; Lopez v. United States, supra; and Osborn v. United States, supra. In the latter case the eavesdropping device was permitted where the "commission of a specific offense" was charged, its use was "under the most precise and discriminate circumstances" and the effective administration of justice in a federal court was at stake. The States are under no greater restrictions. The Fourth Amendment does not make the "precincts of the home or the office * * * sanctuaries where the law can never reach," Douglas, J., dissenting in Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 321, 87 S.Ct. 1642, 1657, 18 L.Ed.2d 782, but it does prescribe a constitutional standard that must be met before official invasion is permissible. Our concern with the statute here is whether its language permits a trespassory invasion of the home or office, by general warrant, contrary to the command of the Fourth Amendment. As it is written, we believe that it does.
31
Reversed.
32
Mr. Justice DOUGLAS, concurring.
33
I join the opinion of the Court because at long last it overrules sub silentio Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, and its offspring and brings wiretapping and other electronic eavesdropping fully within the purview of the Fourth Amendment. I also join the opinion because it condemns electronic surveillance, for its similarity to the general warrants out of which our Revolution sprang and allows a discreet surveillance only on a showing of "probable cause." These safeguards are minimal if we are to live under a regime of wiretapping and other electronic surveillance.
34
Yet there persists my overriding objection to electronic surveillance, viz., that it is a search for 'mere evidence' which, as I have maintained on other occasions (Osborn v. United States, 385 U.S. 323, 349—354, 87 S.Ct. 429, 443, 446, 17 L.Ed.2d 394), is a violation of the Fourth and Fifth Amendments, no matter with what nicety and precision a warrant may be drawn a proposition that I developed in detail in my dissent in Warden v. Hayden, 387 U.S. 312, 87 S.Ct. 1653, 18 L.Ed.2d 795, decided only the other day.
35
A discreet selective wiretap or electronic "bugging" is of course not rummaging around, collecting everything in the particular time and space zone. But even though it is limited in time, it is the greatest of all invasions of privacy. It places a government agent in the bedroom, in the business conference, in the social hour, in the lawyer's office—everywhere and anywhere a "bug" can be placed.
36
If a statute were to authorize placing a policeman in every home or office where it was shown that there was probable cause to believe that evidence of crime would be obtained, there is little doubt that it would be struck down as a bald invasion of privacy, far worse than the general warrants prohibited by the Fourth Amendment. I can see no difference between such a statute and one authorizing electronic surveillance, which, in effect, places an invisible policeman in the home. If anything, the latter is more offensive because the homeowner is completely unaware of the invasion of privacy.
37
The traditional wiretap or electronic eavesdropping device constitutes a dragnet, sweeping in all conversations within its scope—without regard to the participants or the nature of the conversations. It intrudes upon the privacy of those not even suspected of crime and intercepts the mos i ntimate of conversations. Thus, in the Coplon case (United States v. Coplon, D.C., 91 F.Supp. 867, rev'd, 89 U.S.App.D.C. 103, 191 F.2d 749) wiretaps of the defendant's home and office telephones recorded conversations between the defendant and her mother, a quarrel between a husband and wife who had no connection with the case, and conferences between the defendant and her attorney concerning the preparation of briefs, testimony of government witnesses, selection of jurors and trial strategy. Westin, The Wire-Tapping Problem: An Analysis and a Legislative Proposal, 52 Col.L.Rev. 165, 170-171 (1952); Barth, The Loyalty of Free Men 173 (1951). It is also reported that the FBI incidentally learned about an affair, totally unrelated to espionage, between the defendant and a Justice Department attorney. Barth, supra, at 173. While tapping one telephone, police recorded conversations involving, at the other end, The Juilliard School of Music, Brooklyn Law School, Consolidated Radio Artists, Western Union, Mercantile Commercial Bank, several restaurants, a real estate company, a drug store, many attorneys, an importer, a dry cleaning establishment, a number of taverns, a garage, and the Prudential Insurance Company. Westin, supra, at 188, n. 112. These cases are but a few of many demonstrating the sweeping nature of electronic total surveillance as we know it today.
38
It is, of course, possible for a statute to provide that wiretap or electronic eavesdrop evidence is admissible only in a prosecution for the crime to which the showing of probable cause related. See Nev.Rev.Stat. § 200.680 (1963). But such a limitation would not alter the fact that the order authorizes a general search. Whether or not the evidence obtained is used at a trial for another crime, the privacy of the individual has been infringed by the interception of all of his conversations. And, even though the information is not introduced as evidence, it can and probably will be used as leads and background information. Again, a statute could provide that evidence developed from eavesdrop information could not be used at trial. Cf. Silverthorne Lumber Co., Inc. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319; Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307; Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734. But, under a regime of total surveillance, where a multitude of conversations are recorded, it would be very difficult to show which aspects of the information had been used as investigative information.
39
As my Brother WHITE says in his dissent, this same vice inheres in any search for tangible evidence such as invoices, letters, diaries, and the like. "In searching for seizable matters, the police must necessarily see or hear, and comprehend, items which do not relate to the purpose of the search." That is precisely why the Fourth Amendment made any such rummaging around unconstitutional, even though supported by a formally adequate warrant. That underwrites my dissent in Hayden.
40
With all respect, my Brother BLACK misses the point of the Fourth Amendment. It does not make every search constitutional provided there is a warrant that is technically adequate. The history of the Fourth Amendment, as I have shown in my dissent in the Hayden case, makes it plain that any search in the precincts of the home for personal items that are lawfully possessed and not articles of a crime is "unreasonable." That is the essence of the "mere evidence" rule that long obtained until overruled by Hayden.
41
The words that a man says consciously on a radio are public property. But I do not see how government using surreptitious methods can put a person on the radio and use his words to convict him. Under our regime a man stands mute if he chooses, or talks if he chooses. The test is whether he acts voluntarily. That is the essence of the face of privacy protected by the 'mere evidence' rule. For the Fourth Amendment and the Fifth come ito play when the accused is "the unwilling source of the evidence" (Gouled v. United States, 255 U.S. 298, 306, 41 S.Ct. 261, 264, 65 L.Ed. 647), there being no difference "whether he be obliged to supply evidence against himself or whether such evidence be obtained by an illegal search of his premises and seizure of his private papers." Ibid.
42
That is the essence of my dissent in Hayden. In short, I do not see how any electronic surveillance that collects evidence or provides leads to evidence is or can be constitutional under the Fourth and Fifth Amendments. We could amend the Constitution and so provide—a step that would taken us closer to the ideological group we profess to despise. Until the amending process ushers us into that kind of totalitarian regime, I would adhere to the protection of privacy which the Fourth Amendment, fashioned in Congress and submitted to the people, was designed to afford the individual. And unlike my Brother BLACK, I would adhere to Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, and apply the exclusionary rule in state as well as federal trials—a rule fashioned out of the Fourth Amendment and constituting a high constitutional barricade against the intrusion of Big Brother into the lives of all of us.
43
Mr. Justice STEWART, concurring in the result.
44
I fully agree with Mr. Justice BLACK, Mr. Justice HARLAN, and Mr. Justice WHITE that this New York law is entirely constitutional. In short, I think that "electronic eavesdropping, as such or as it is permitted by this statute, is not an unreasonable search and seizure."1 The statute contains many provisions more stringent than the Fourth Amendment generally requires, as Mr. Justice BLACK has so forcefully pointed out. And the petitioner himself has told us that the law's "reasonable grounds" requirement "is undisputedly equivalant to the probable cause requirement of the Fourth Amendment." This is confirmed by decisions of the New York courts. People v. Cohen, 42 Misc.2d 403, 248 N.Y.S.2d 339; People v. Beshany, 43 Misc.2d 521, 252 N.Y.S.2d 110; People v. Grossman, 45 Misc.2d 557, 257 N.Y.S.2d 266. Of course, a state court's construction of a state statute is binding upon us.
45
In order to hold this statute unconstitutional, therefore, we would have to either rewrite the statute or rewrite the Constitution. I can only conclude that the Court today seems to have rewritten both.
46
The issue before us, as Mr. Justice WHITE says, is "whether this search complied with Fourth Amendment standards." For me that issue is an extremely close one in the circumstances of this case. It certainly cannot be resolved by incantation of ritual phrases like "general warrant." Its resolution involves "the unavoidable task in any search and seizure case: was the particular search and seizure reasonable or not?"2
47
I would hold that the affidavits on which the judicial order issued in this case did not constitute a showing of probable cause adequate to justify the authorizing order. The need for particularity and evidence of reliability in the showing required when judicial authorization is sought for the kind of electronic eavesdropping involved in this case is especially great. The standard of reasonableness embodied in the Fourth Amendment demands that the showing of justification match the degree of intrusion. By its very nature electronic eavesdropping for a 60-day period, even of a specified office, involves a broad invasion of a constitutionally protected area. Only the most precise and rigorous standard of probable cause should justify an intrusion of this sort. I think the affidavits presented to the judge who authorized the electronic surveillance of the Steinman office failed to meet such a standard.
48
So far as the record shows, the only basis for the Steinman order consst ed of two affidavits. One of them contained factual allegations supported only by bare, unexplained references to "evidence" in the district attorney's office and "evidence" obtained by the Neyer eavesdrop. No underlying facts were presented on the basis of which the judge could evaluate these general allegations. The second affidavit was no more than a statement of another assistant district attorney that he had read his associate's affidavit and was satisfied on that basis alone that proper grounds were presented for the issuance of an authorizing order.
49
This might be enough to satisfy the standards of the Fourth Amendment for a conventional search or arrest. Cf. Aguilar v. State of Texas, 378 U.S. 108, 116, 84 S.Ct. 1509, 1515, 12 L.Ed.2d 723 (dissenting opinion). But I think it was constitutionally insufficient to constitute probable cause to justify an intrusion of the scope and duration that was permitted in this case.
50
Accordingly, I would reverse the judgment.
51
Mr. Justice BLACK, dissenting.
52
New York has an eavesdropping statute which permits its judges to authorize state officers to place on other people's premises electronic devices that will overhear and record telephonic and other conversations for the purpose of detecting secret crimes and conspiracies and obtaining evidence to convict criminals in court. Judges cannot issue such eavesdropping permits except upon oath or affirmation of certain state officers that "there is reasonable ground to believe that evidence of crime may be thus obtained, and particularly describing the person or persons whose communications, conversations or discussions are to be overheard or recorded and the purpose thereof * * *." N.Y.Code Crim.Proc. § 813-a. Evidence obtained by such electronic eavesdropping was used to convict the petitioner here of conspiracy to bribe the chairman of the State Liquor Authority which controls the issuance of liquor licenses in New York. It is stipulated that without this evidence a conviction could not have been obtained and it seems apparent that use of that evidence showed petitioner to be a briber beyond all reasonable doubt. Notwithstanding petitioner's obvious guilt, however, the Court now strikes down his conviction in a way that plainly makes it impossible ever to convict him again. This is true because the Court not only holds that the judicial orders which were the basis of the authority to eavesdrop were insufficient, but also holds that the New York eavesdropping statute is on its face violative of the Fourth Amendment. And while the Court faintly intimates to the contrary, it seems obvious to me that its holding, by creating obstacles that cannot be overcome, makes it completely impossible for the State or the Federal Government ever to have a valid eavesdropping statute. All of this is done, it seems to me, in part because of the Court's hostility to eavesdropping as "ignoble" and "dirty business"1 and in part because of fear that rapidly advancing science and technology is making eavesdropping more and more effective. Cf. Lopez v. United States, 373 U.S. 427, 446, 83 S.Ct. 1381, 1391, 10 L.Ed.2d 462 (dissenting opinion of Brennan, J.). Neither these, nor any other grounds that I can think of, are sufficient in my judgment to justify a holding that the use of evidence secured by eavesdropping is barred by the Constitution.
I.
53
Perhaps as good a definition of eavesdropping as another is that it is listening secretly and sometimes "snoopily" to conversations and discussions believed to be private by those who engage in them. Needless to say, eavesdropping is not ranked as one of the most learned or most polite professions, nor perhaps would an eavesdropper be selected by many people as the most desirable and attractive associate. But the practice has undoubtedly gone on since the beginning of human society, and during that time it has developed a usefulness of its own, particularly in the detection and prosecution of crime.
54
Eavesdroppers have always been deemed competent witnesses in English and American courts. The main test of admissibility has been relevance and first-hand knowledge, not by whom or by what method proffered evidence was obtained. It is true that in England people who obtained evidence by unlawful means were held liable in damages as in Entick v. Carrington, 19 How.St.Tr. 1029. But even that famous civil liberties case made no departure from the traditional common-law rule that relevant evidence is admissible, even though obtained contrary to ethics, morals, or law. And, for reasons that follow, this evidentiary rule is well adapted to our Government, set up, as it was, to "insure domestic tranquility" under a system of laws.
55
Today this country is painfully realizing that evidence of crime is difficult for governments to secure. Criminals are shrewd and constantly seek, too often successfully, to conceal their tracks and their outlawry from law officers. But in carrying or their nefarious practices professional criminals usually talk considerably. Naturally, this talk is done, they hope, in a secret way that will keep it from being heard by law enforcement authorities or by others who might report to the authorities. In this situation "eavesdroppers," "informers," and "squealers," as they are variously called, are helpful, even though unpopular, agents of law enforcement. And it needs no empirical studies or statistics to establish that eavesdropping testimony plays an important role in exposing criminals and bands of criminals who but for such evidence would go along their criminal way with little possibility of exposure, prosecution, or punishment. Such, of course is this particular case before us.
56
The eavesdrop evidence here shows this petitioner to be a briber, a corrupter of trusted public officials, a poisoner of the honest administration of government, upon which good people must depend to obtain the blessings of a decent orderly society. No man's privacy, property, liberty, or life is secure, if organized or even unorganized criminals can go their way unmolested, ever and ever further in their unbounded lawlessness. However obnoxious eavesdroppers may be they are assuredly not engaged in a more "ignoble" or "dirty business" than are bribers, thieves, burglars, robbers, rapists, kidnapers, and murderers, not to speak of others. And it cannot be denied that to deal with such specimens of our society, eavesdroppers are not merely useful, they are frequently a necessity. I realize that some may say, "Well, let the prosecuting officers use more scientific measures than eavesdropping." It is always easy to hint at mysterious means available just around the corner to catch outlaws. But crimes, unspeakably horrid crimes, are with us in this country, and we cannot afford to dispense with any known method of detecting and correcting them unless it is forbidden by the Constitution or deemed inadvisable by legislative policy—neither of which I believe to be true about eavesdropping.
II.
57
Since eavesdrop evidence obtained by individuals is admissible and helpful I can perceive no permissible reason for courts to reject it, even when obtained surreptitiously by machines, electronic or otherwise. Certainly evidence picked up and recorded on a machine is not less trustworthy. In both perception and retention a machine is more accurate than a human listener. The machine does not have to depend on a defective memory to repeat what was said in its presence for it repeats the very words uttered. I realize that there is complaint that sometimes the words are jumbled or indistinct. But machine evidence need not be done away with to correct such occasional defective recording. The trial judge has ample power to refuse to admit indistinct or garbled recordings.
58
The plain facts are, however, that there is no inherent danger to a defendnt in using these electronic recordings except that which results from the use of testimony that is so unerringly accurate that it is practically bound to bring about a conviction. In other words, this kind of transcribed eavesdropping evidence is far more likely to lead a judge or jury to reach a correct judgment or verdict—the basic and always-present objective of a trial.
III.
59
The superior quality of evidence recorded and transcribed on an electronic device is, of course, no excuse for using it against a defendant, if, as the Court holds, its use violates the Fourth Amendment. If that is true, no amount of common-law tradition or anything else can justify admitting such evidence. But I do not believe the Fourth Amendment, or any other, bans the use of evidence obtained by eavesdropping.
60
There are constitutional amendments that speak in clear unambiguous prohibitions or commands. The First, for illustration, declares that "Congress shall make no law * * * abridging the freedom of speech, or of the press * * *." The Fifth declares that a person shall not be held to answer for a capital or otherwise infamous crime except on a grand jury indictment; shall not twice be put in jeopardy of life or limb for the same offense; nor be compelled in any criminal case to be a witness against himself. These provisions of the First and Fifth Amendments, as well as others I need not mention at this time, are clear unconditional commands that something shall not be done. Particularly of interest in comparison with the Fourth Amendment is the Fifth Amendment's prohibition against compelling a person to be a witness against himself. The Fifth Amendment's language forbids a court to hear evidence against a person that he has been compelled to give, without regard to reasonableness or anything else. Unlike all of these just-named Fifth Amendment provisions, the Fourth Amendment relating to searches and seizures contains no such unequivocal commands. It provides:
61
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
62
Obviously, those who wrote this Fourth Amendment knew from experience that searches and seizures were too valuable to law enforcement to prohibit them entirely, but also knew at the same time that while searches or seizures must not be stopped, they should be slowed down, and warrants should be issued only after studied caution. This accounts for use of the imprecise and flexible term, "unreasonable," the key word permeating this whole Amendment. Also it is noticeable that this Amendment contains no appropriate language, as does the Fifth, to forbid the use and introduction of search and seizure evidence even though secured "unreasonably." Nor does this Fourth Amendment attempt to describe with precision what was meant by its words, "probable cause"; nor by whom the "Oath or affirmation" should be taken; nor what it need contain. Although the Amendment does specifically say that the warrant should particularly describe "the place to be searched, and the persons or things to be seized," it does not impose any precise limits on the spatial or temporal extent of the search or the quantitative extent of the seizure. Thus this Amendment, aimed against only "unreasonable" searches and seizures, seeks to guard against them by providing, as the Court says, that a "neutral and detached authority be interposed between the police and the public, Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436." And, as the Court admits, the Amendment itself provides no sanctions to enforce its standards of searches, seizures, and warrants. This was left for Congress to carry out if it chose to do so.
63
Had the framers of this Amenme nt desired to prohibit the use in court of evidence secured by an unreasonable search or seizure, they would have used plain appropriate language to do so, just as they did in prohibiting the use of enforced self-incriminatory evidence in the Fifth Amendment. Since the Fourth Amendment contains no language forbidding the use of such evidence, I think there is no such constitutional rule. So I continue to believe that the exclusionary rule formulated to bar such evidence in the Weeks2 case is not rooted in the Fourth Amendment but rests on the 'supervisory power' of this Court over the other federal courts the same judicial power invoked in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. See my concurring opinions in Wolf v. People of State of Colorado, 338 U.S. 25, 39, 69 S.Ct. 1359, 1367, 93 L.Ed. 1782, and Mapp v. Ohio, 367 U.S. 643, 661, 81 S.Ct. 1684, 1694, 6 L.ed.2d 1081.3 For these reasons and others to be stated, I do not believe the Fourth Amendment standing alone, even if applicable to electronic eavesdropping, commands exclusion of the overheard evidence in this case.
64
In reaching my conclusion that the Fourth Amendment itself does not bar the use of eavesdropping evidence in courts, I do not overlook the fact that the Court at present is reading the Amendment as expressly and unqualifiedly barring invasions of "privacy" rather then merely forbidding "unreasonable searches and seizures." On this premise of the changed command of the Amendment, the Court's task in passing on the use of eavesdropping evidence becomes a simple one. Its syllogism is this:
65
The Fourth Amendment forbids invasion of privacy and excludes evidence obtained by such invasion;
66
To listen secretly to a man's conversations or to tap his telephone conversations invades his privacy;
67
Therefore, the Fourth Amendment bars use of evidence obtained by eavesdropping or by tapping telephone wires.
68
The foregoing syllogism is faulty for at least two reasons: (1) the Fourth Amendment itself contains no provision from which can be implied a purpose to bar evidence or anything else secured by an "unreasonable search or seizure"; (2) the Fourth Amendment's language, fairly construed, refers specifically to "unreasonable searches and seizures" and not to a broad undefined right to "privacy" in general. To attempt to transform the meaning of the Amendment, as the Court does here, is to pay sleight-of-hand tricks with it. It is impossible for me to think that the wise Framers of the Fourth Amendment would ever have dreamed about drafting an amendment to protect the "right of privacy." That expression, like a chameleon, has a different color for every turning. In fact, use of "privacy" as the keyword in the Fourth Amendment simply gives this Court a useful new tool, as I see it, both to usurp the policy-making power of the Congress and to hold more state and federal laws unconstitutional when the Court entertains a sufficient hostility to them. I therefore cannot agree to hold New York's law unconstitutional on the premise that all laws that unreasonably invade privacy violate the Fourth Amendment.
IV.
69
While the electronic eavesdropping here bears some analogy to the problems with which the Fourth Amendment is concerned, I am by no means satisfied that the Amendment controls the constitutionality of such eavesdropping. As pointed out, the Amendment only bans searches and seizures of "persons, houses, papers, and effects." This literal language imports tangible things, and it would require an expansion of the language se d by the framers, in the interest of "privacy" or some equally vague judge-made goal, to hold that it applies to the spoken word. It simply requires an imaginative transformation of the English language to say that conversations can be searched and words seized. Referring to wiretapping, this Court in Olmstead v. United States, 277 U.S. 438, 465, 48 S.Ct. 564, 72 L.Ed. 944, refused to make that transformation:
70
"Justice Bradley in the Boyd Case, and Justice Clarke in the Gouled case, said that the Fifth Amendment and the Fourth Amendment were to be liberally construed * * *. But that cannot justify enlargement of the language employed beyond the possible practical meaning of houses, persons, papers, and effects, or so to apply the words search and seizure as to forbid hearing or sight."
71
Though Olmstead has been severely criticized by various individual members of this Court, and though the Court stated an alternative ground for holding the Amendment inapplicable in that case, the Olmstead holding that the Fourth Amendment does not apply to efforts to hear and obtain oral conversations has never been overruled by this Court. The Court today, however, suggests that this holding has been "negated" by subsequent congressional action and by four decisions of this Court. First, the Court intimates, though it does not exactly state, that Congress "in answer to Olmstead," passed an Act to prohibit "the interception without authorization and the divulging or publishing of the contents of telephonic communications." The Court cites no authority for this strange surmise, and I assert with confidence that none can be recited. And even if it could, Congress" action would not have the slightest relevance to the scope of the Fourth Amendment. Second, the Court cites Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322, and On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270, in an effort to explain away Olmstead. But neither of those cases purported to repudiate the Olmstead case or any part of it. In fact, in both of those cases the Court refused to exclude the challenged eavesdrop evidence. Finally, the Court relies on Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734, and Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. In both of these cases the Court did imply that the "Fourth Amendment may protect against the overhearing of verbal statements as well as against the more traditional seizure of 'papers and effects,' " 371 U.S., at 485, 83 S.Ct., at 416 (emphasis added), but in neither did the Court find it necessary to overrule Olmstead, an action that would have been required had the Court based its exclusion of the oral conversations solely on the ground of the Fourth Amendment. The fact is that both Silverman and Wong Sun were federal cases dealing with the use of verbal evidence in federal courts, and the Court held the evidence should be excluded by virtue of the exclusionary rule of the Weeks case. As I have previously pointed out, that rule rested on the Court's supervisory power over federal courts, not on the Fourth Amendment: it is not required by the Amendment, nor is a violation of the Amendment a prerequisite to its application. I would not have agreed with the Court's opinion in Silverman, which, by the way, cited Olmstead with approval, had I thought that the result depended on finding a violation of the Fourth Amendment or had I any inkling that the Court's general statements about the scope of the Amendment were intended to negate the clear holding of Olmstead. And again in Wong Sun, which did not even mention Olmstead, let alone overrule it, the Court clearly based its exclusion of oral statements made to federal agents during an illegal arrest on its supervisory power to deter lawless conduct by federal officers and on the alternative ground that the incriminating statements were made under compulsive circumstances and were not the product of a free will. t is impossible for me to read into that noneavesdropping federal case an intent to overrule Olmstead implicitly. In short, the only way this Court can escape Olmstead here is to overrule it. Without expressly saying so, the Court's opinion, as my Brother DOUGLAS acknowledges, does just that. And that overruling is accomplished by the simple expedient of substituting for the Amendment's words, "The right of the people to be secure in their persons, houses, papers, and effects," the words "The right of the people to be secure in their privacy," words the Court believes the Framers should have used, but did not. I have frequently stated my opposition to such judicial substitution. Although here the Court uses it to expand the scope of the Fourth Amendment to include words, the Court has been applying the same process to contract the Fifth Amendment's privilege against self-incrimination so as to exclude all types of incriminating evidence but words, or what the Court prefers to call "testimonial evidence." See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178.
72
There is yet another reason why I would adhere to the holding of Olmstead that the Fourth Amendment does not apply to eavesdropping. Since the Framers in the first clause of the Amendment specified that only persons, houses, and things were to be protected, they obviously wrote the second clause, regulating search warrants, in reference only to such tangible things. To hold, as the Court does, that the first clause protects words, necessitates either a virtual rewriting of the particularity requirements of the Warrant Clause or a literal application of that clause's requirements and our cases construing them to situations they were never designed to cover. I am convinced that the Framers of the Amendment never intended this Court to do either, and yet it seems to me clear that the Court here does a little or both.
V.
73
Assuming, as the Court holds, that the Fourth Amendment applies to eavesdropping and that the evidence obtained by an eavesdrop which violates the Fourth Amendment must be excluded in state courts, I disagree with the Court's holding that the New York statute on its face fails to comport with the Amendment. I also agree with my Brother WHITE that the statute as here applied did not violate any of petitioner's Fourth Amendment rights assuming again that he has some—and that he is not entitled to a reversal of his conviction merely because the statute might have been applied in some way that would not have accorded with the Amendment.
74
This case deals only with a trespassory eavesdrop, an eavesdrop accomplished by placing "bugging" devices in certain officers. Significantly, the Court does not purport to disturb the Olmstead-Silverman-Goldman distinction between eavesdrops which are accompanied by a physical invasion and those that are not. Neither does the Court purport to overrule the holdings of On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270, and Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462, which exempt from the amendment's requirements the use of an electronic device to record, and perhaps even transmit, a conversation to which the user is a party. It is thus clear that at least certain types of electronic eavesdropping, until today, were completely outside the scope of the Fourth Amendment. Nevertheless, New York has made it a crime to engage in almost any kind of electronic eavesdropping, N.Y.Penal Law § 738, and the only way eavesdropping, even the kind this Court has held constitutional, can be accomplished with immunity from criminal punishment is pursuant to § 813-a of the Code of Criminal Procedure, N.Y.Penal Law § 739. The Court now strikes down § 813-a in its entirety, and that may well have the result of making it impossible for state law enforcement officers merely to listen though a closed door by means of an investd cone or some other crude amplifying device, eavesdropping which this Court has to date refused to hold violative of the Fourth Amendment. Certainly there is no justification for striking down completely New York's statute, covering all kinds of eavesdropping, merely because it fails to contain the "strict precautions" which the Court derives—or more accurately fabricates—as conditions to eavesdrops covered by the Fourth Amendment. In failing to distinguish between types of eavesdropping and in failing to make clear that the New York statute is invalid only as applied to certain kinds of eavesdropping, the Court's opinion leaves the definite impression that all eavesdropping is governed by the Fourth Amendment. Such a step would require overruling of almost every opinion this Court has ever written on the subject. Indeed, from the Court's eavesdropping catalogue of horrors—electronic rays beamed at walls, lapel and cuff-link miscrophones, and off-premise parabolic microphones—it does not take too much insight to see that the Court is about ready to do, if it has not today done, just that.
75
I agree with my Brother WHITE that instead of looking for technical defects in the language of the New York statute, the Court should examine the actual circumstances of its application in this case to determine whether petitioner's rights have here been violated. That to me seems to be the unavoidable task in any search and seizure case: was the particular search and seizure reasonable or not? We have just this Term held that a search and seizure without a warrant and even without authorization of a state law, can nevertheless, under all the circumstances, be "reasonable" for Fourth Amendment purposes. Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730. I do not see why that court not be equally true in the case of a search and seizure with a warrant and pursuant to a state law, even though the state law is itself too broad to be valid. Certainly a search and seizure may comply with the Fourth Amendment even in the absence of an authorizing statute which embodies the Amendment's requirements. Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394, upon which the Court so heavily relies, is a good example of a case where the Court sustained the tape recording of a conversation by examining the particular circumstances surrounding it, even though no federal statute prescribed the precautions taken by the district judges there. Here New York has gone much further than the Federal Government and most of the States to outlaw all eavesdropping except under the limited circumstances of § 813—a, a statute which, as I shall demonstrate, contains many more safeguards than the Fourth Amendment itself. But today New York fares far worse than those States which have done nothing to implement and supplement the Fourth Amendment: it must release a convicted criminal, not because it has deprived him of constitutional rights, but because it has inartfully (according to the Court) tried to guarantee him those rights. The New York statute aside, the affidavits in this case were sufficient to justify a finding of probable cause, and the ex parte eavesdrop orders identified the person whose conversations were to be overheard, the place where the eavesdropping was to take place, and, when read in reference to the supporting affidavits, the type of conversations sought, i.e., those relating to extortion and bribery.
76
The Court concludes its analysis of § 813—a by asserting that 'the statute's blanket grant of permission to eavesdrop is without adequate judicial supervision or protective procedures.' Even if the Court's fear that "(f)ew threats to liberty exist which are greater than that posed by the use of eavesdropping devices" justifies it in rewriting the Fourth Amendment to impose on eavesdroppers "strict precautions" which are not imposed on other searchers, it is an undeserved criticism of New York to characterize its studied efforts o regulate eavesdropping as resulting in a statute "without adequate judicial supervision or protective procedures." Let us look at the New York statute. It provides:
77
(1) New York judges are to issue authorizations. (The Fourth Amendment does not command any such desirable judicial participation.)
78
(2) The judge must have an "oath" from New York officials. (The Fourth Amendment does not specify who must execute the oath it requires.)
79
(3) The oath must state "reasonable ground to believe that evidence of crime may be thus obtained," and the judge may examine the affiant and any other witnesses to make certain that this is the case. (The Fourth Amendment requires a showing of "probable cause," but the Court does not dispute New York's assertion that "reasonable ground" and "probable cause" are the same. The Amendment does not specify, as the New York statute does, a procedure by which the judge may "satisfy himself" of the existence of probable cause.) (4) The "person or persons whose communications, conversations or discussions are to be overheard or recorded and the purpose thereof" must be particularly described. (In the case of conversation is would seem impossible to require a more particular description than this. Tangible things in existence at the time a warrant for their seizure is issued could be more particularly described, but the only way to describe future conversations is by a description of the anticipated subject matter of the conversation. When the "purpose" of the eavesdropping is stated, the subject of the conversation sought to be seized is readily recognizable. Nothing more was required in Osborn; nothing more should be required here.)
80
(5) The eavesdrop order must be limited in time to no more than two months. (The Fourth Amendment merely requires that the place to be searched be described. It does not require the warrant to limit the time of a search, and it imposes no limit, other than that of reasonableness, on the dimensions of the place to be searched.)
81
Thus, it seems impossible for the Court to condemn this statute on the ground that it lacks 'adequate judicial supervision or protective procedures.' Rather, the only way the Court can invalidate it is to find it lacking in some of the safeguards which the Court today fashions without any reference to the language of the Fourth Amendment whatsoever. In fact, from the deficiencies the Court finds in the New York statute, it seems that the Court would be compelled to strike down a state statute which merely tracked verbatim the language of the Fourth Amendment itself. First, the Court thinks the affidavits or the orders must particularize the crime being committed. The Fourth Amendment's particularity requirement relates to the place searched and the thing seized, not to the crime being committed. Second, the Court holds that two months for an eavesdrop order to be outstanding is too long. There are, however, no time limits of any kind in the Fourth Amendment other than the notion that a search should not last longer than reasonably necessary to search the place described in the warrant, and the extent of that place may also be limited by the concept of reasonableness. The Court does not explain why two months, regardless of the circumstances, is per se an unreasonable length of time to accomplish a verbal search. Third, the Court finds the statute deficient in not providing for a termination of the eavesdrop once the object is obtained and in not providing for a return of the warrant at that time. Where in the Fourth Amendment. does the Court think it possible to find these requirements? Finally, the Court makes the fantastic suggestion that the eavesdropper must give notice to the person whose conversation is to be overheard or that the eavesdropper must show "exigent circumstances" before he can perform his eavesdrop without consent. Now, if never before, the Court's purpose is clear: it is determined to ban all eavesdropping. As the Court rco gnizes, eavesdropping "necessarily * * * depends on secrecy." Since secrecy is an essential, indeed a definitional, element of eavesdropping, when the Court says there shall be no eavesdropping without notice, the Court means to inform the Nation there shall be no eavesdropping—period.
82
It should now be clear that in order to strike down the New York law the Court has been compelled to rewrite completely the Fourth Amendment. By substituting the word "privacy" for the language of the first clause of the Amendment, the Court expands the scope of the Amendment to include oral conversations; then by applying the literal particularity requirements of the second clause without adjustment for the Court's expansion of the Amendment's scope, the Court makes constitutional eavesdropping improbable; and finally, by inventing requirements found in neither clause—requirements with which neither New York nor any other State can possibly comply—the Court makes such eavesdropping impossible. If the Fourth Amendment does not ban all searches and seizures, I do not see how it can possibly ban all eavesdrops.
VI.
83
As I see it, the differences between the Court and me in this case rest on different basic beliefs as to our duty in interpreting the Constitution. This basic charter of our Government was written in few words to define governmental powers generally on the one hand and to define governmental limitations on the other. I believe it is the Court's duty to interpret these grants and limitations so as to carry out as nearly as possible the original intent of the Framers. But I do not believe that it is our duty to go further than the Framers did on the theory that the judges are charged with responsibility for keeping the Constitution "up to date." Of course, where the Constitution has stated a broad purpose to be accomplished under any circumstances, we must consider that modern science has made it necessary to use new means in accomplishing the Framers' goal. A good illustration of this is the Commerce Clause which gives Congress power to regulate commerce between the States however it may be carried on, whether by ox wagons or jet planes. But the Fourth Amendment gives no hint that it was designed to put an end to the age-old practice of using eavesdropping to combat crime. If changes in that Amendment are necessary, due to contemporary human reaction to technological advances, I think those changes should be accomplished by amendments, as the Constitution itself provides.
84
Then again, a constitution like ours is not designed to be a full code of laws as some of our States and some foreign countries have made theirs. And if constitutional provisions require new rules and sanctions to make them as fully effective as might be desired my belief is that calls for action, not by us, but by Congress or state legislatures, vested with powers to choose between conflicting policies. Here, for illustration, there are widely diverging views about eavesdropping. Some would make it a crime, barring it absolutely and in all events; others would bar it except in searching for evidence in the field of "national security," whatever that means; still others would pass no law either authorizing or forbidding it, leaving it to follow its natural course. This is plainly the type of question that can and should be decided by legislative bodies, unless some constitutional provision expressly governs the matter, just as the Fifth Amendment expressly forbids enforced self-incrimination. There is no such express prohibition in the Fourth Amendment nor can one be implied. The Fourth Amendment can only be made to prohibit or to regulate eavesdropping by taking away some of its words and by adding others.
85
Both the States and the National Government are at present confronted with a crime problem that threatens the peace, order, and tranquility of the people. There are, as I have pointed out, some constitutional commands that leave no room for doubt—certain procedures mut be followed by courts regardless of how much more difficult they make it to convict and punish for crime. These commands we should enforce firmly and to the letter. But my objection to what the Court does today is the picking out of a broad general provision against unreasonable searches and seizures and the erecting out of it a constitutional obstacle against electronic eavesdropping that makes it impossible for lawmakers to overcome. Honest men may rightly differ on the potential dangers or benefits inherent in electronic eavesdropping and wiretapping. See Lopez v. United States, supra. But that is the very reason that legislatures, like New York's should be left free to pass laws about the subject, rather than be told that the Constitution forbids it on grounds no more forceful than the Court has been able to muster in this case.
86
Mr. Justice HARLAN, dissenting.
87
The Court in recent years has more and more taken to itself sole responsibility for setting the pattern of criminal law enforcement throughout the country. Time-honored distinctions between the constitutional protections afforded against federal authority by the Bill of Rights and those provided against the action by the Fourteenth Amendment have been obliterated, thus increasingly subjecting state criminal law enforcement policies to oversight by this Court. See, e. g., Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653; Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678. Newly contrived constitutional rights have been established without any apparent concern for the empirical process that goes with legislative reform. See, e. g., Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. And overlying the particular decisions to which this course has given rise is the fact that, short of future action by this Court, their impact can only be undone or modified by the slow and uncertain process of constitutional amendment.
88
Today's decision is in this mold. Despite the fact that the use of electronic eavesdropping devices as instruments of criminal law enforcement is currently being comprehensively addressed by the Congress and various other bodies in the country, the Court has chosen, quite unnecessarily, to decide this case in a manner which will seriously restrict, if not entirely thwart, such efforts, and will freeze further progress in this field, except as the Court may itself act or a constitutional amendment may set things right.
89
In my opinion what the Court is doing is very wrong, and I must respectfully dissent.
I.
90
I am, at the outset, divided from the majority by the way in which it has determined to approach the case. Without pausing to explain or to justify its reasoning, it has undertaken both to circumvent rules which have hitherto governed the presentation of constitutional issues to this Court, and to disregard the construction consistently attributed to a state statute by the State's own courts. Each of these omissions is, in my opinion, most unfortunate.
91
The Court declares, without further explanation, that since petitioner was "affected" by § 813-a, he may challenge its validity on its face. Nothing in the cases of this Court supports this wholly ambiguous standard; the Court until now has, in recognition of the intense difficulties so wide a rule might create for the orderly adjudication of constitutional issues, limited the situations in which state statutes may be challenged on their face. There is no reason here, apart from the momentary conveniences of this case, to abandon those limitations: none of the circumstances which have before properly been thought to warrant challenges of statutes on their face is present, cf. Thornhill v. State of Alabama, 310 U.S. 88, 98, 60 S.Ct. 736, 742, 84 L.Ed. 1093, and no justification for additional exceptions has been offered. See en erally United States v. National Dairy Products Corp., 372 U.S. 29, 36, 83 S.Ct. 594, 599, 9 L.Ed.2d 561; Aptheker v. Secretary of State, 378 U.S. 500, 521, 84 S.Ct. 1659, 1671, 12 L.Ed.2d 992 (dissenting opinion). Petitioner's rights, and those of others similarly situated, can be fully vindicated through the adjudication of the consistency with the Fourteenth Amendment of each eavesdropping order.
92
If the statute is to be assessed on its face, the Court should at least adhere to the principle that, for purposes of assessing the validity under the Constitution of a state statute, the construction given the statute by the State's courts is conclusive of its scope and meaning. Fox v. Washington, 236 U.S. 273, 35 S.Ct. 383, 59 L.Ed. 573; Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840; Poulos v. State of New Hamsphire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105. This principle is ultimately a consequence of the differences in function of the state and federal judicial systems. The strength with which it has hitherto been held may be estimated in part by the frequency with which the Court has in the past declined to adjudicate issues, often of great practical and constitutional importance, until the state courts "have been afforded a reasonable opportunity to pass upon them." Harrison v. NAACP, 360 U.S. 167, 176, 79 S.Ct. 1025, 1030, 3 L.Ed.2d 1152. See, e.g., Railroad Comm. of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971; Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101; Shipman v. DuPre, 339 U.S. 321, 70 S.Ct. 640, 94 L.Ed. 877; Albertson v. Millard, 345 U.S. 242, 73 S.Ct. 600, 97 L.Ed. 983; Government and Civic Employees, etc. v. Windsor, 353 U.S. 364, 77 S.Ct. 838, 1 L.Ed.2d 894.
93
The Court today entirely disregards this principle. In its haste to give force to its distaste for eavesdropping, it has apparently resolved that no attention need be given to the construction of § 813-a adopted by the state courts. Apart from a brief and partial acknowledgment, spurred by petitioner's concession, that the state cases might warrant exploration, the Court has been content simply to compare the terms of the statute with the provisions of the Fourth Amendment; upon discovery that their words differ, it has concluded that the statute is constitutionally impermissible. In sharp contrast, when confronted by Fourth Amendment issues under a federal statute which did not, and does not now, reproduce ipsissimis verbis the Fourth Amendment, 26 U.S.C. § 7607(2), the Court readily concluded, upon the authority of cases in the courts of appeals, that the statute effectively embodied the Amendment's requirements. Draper v. United States, 358 U.S. 307, 310 n., 79 S.Ct. 329, 331, 3 L.Ed.2d 327. And the Court, without the assistance even of state authorities, reached an identical conclusion as to a similar state statute in Ker v. California, 374 U.S. 23, 36 n., 83 S.Ct. 1623, 1631, 10 L.Ed.2d 726. The circumstances of the present case do not come even within the narrow exceptions to the rule that the Court ordinarily awaits a state court's construction before adjudicating the validity of a state statute. Cf. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22; Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377. The Court has shown no justification for its disregard of existing and pertinent state authorities.
II.
94
The Court's precipitate neglect of the New York cases is the more obviously regrettable when their terms are examined, for they make quite plain that the state courts have fully recognized the applicability of the relevant federal constitutional requirements, and that they have construed § 813-a in conformity with those requirements. Opinions of the state courts repeatedly suggest that the "reasonable grounds" prescribed by the section are understood to be synonymous with the "probable cause" demanded by the Fourth and Fourteenth Amendment. People v. Cohen, 42 Misc.2d 403, 404, 248 N.Y.S.2d 339, 341; People v. Grossman, 45 Misc.2d 557, 568, 257 N.Y.S.2d 266, 277; People v. Beshany, 43 Misc.2d 521, 525, 252 N.Y.S.2d 110, 115. The terms are frequently employed interchangeably, without the least suggestion of any shadings of meaning. See, e.g., People v. Rogers, 46 Misc.2d 860, 863, 261 N.Y.S.2d 152, 155; People v. McDonough, 51 Misc.2d 1065, 1069, 275 N.Y.S.2d 8, 12. Further, a lower state court. has stated quite specifically that "the same standards, at the least, must be applied" to orders under § 813-a as to warrants for the search and seizure of tangible objects. People v. Cohen, supra, 42 Misc.2d, at 407-408, 248 N.Y.S.2d, at 344. Indeed, the court went on to say that the standards "should be much more stringent than those applied to search warrants." Id., at 408, 248 N.Y.S.2d, at 344. Compare Siegel v. People, 16 N.Y.S.2d 330, 332, 266 N.Y.S.2d 386, 387, 213 N.E.2d 682, 683. The court in Cohen was concerned with a wiretap order, but the order had been issued under § 813-a, and there was no suggestion there or elsewhere that eavesdropping orders should be differently treated. New York's statutory requirements for search warrants, it must be emphasized, are virtually a literal reiteration of the terms of the Fourth Amendment. N.Y.Code Crim.Proc. § 793. If the Court wished a precise invocation of the terms of the Fourth Amendment, it had only to examine the pertinent state authorities.
95
There is still additional evidence that the State fully recognizes the applicability to eavesdropping orders of the Fourth Amendment's constraints. The Legislature of New York adopted in 1962 comprehensive restrictions upon the use of eavesdropped information obtained without a prior § 813-a order. N.Y.Civ.Proc. § 4506. The restrictions were expected and intended to give full force to the mandate of the opinion for this Court in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. See 2 McKinney's Session Laws of New York 3677 (1962); New York State Legislative Annual 16 (1962). If it was then supposed that information obtained without a prior § 813-a order must, as a consequence of Mapp, be excluded from evidence, but that evidence obtained with a § 813-a order need not be excluded, it can only have been assumed that the requirements applicable to the issuance of § 813-a orders were entirely consistent with the demands of the Fourth and Fourteenth Amendments. The legislature recognized the "hiatus" in its law created by Mapp, and wished to set its own "house * * * in order." New York State Legislative Annual, supra, at 18. It plainly understood that the Amendments were applicable, and intended to adhere fully to their requirements.
96
New York's permissive eavesdropping statute must, for purposes of assessing its constitutional validity on its face, be read "as though" this judicial gloss had been "written into" it. Poulos v. State of New Hampshire, supra, 345 U.S., at 402, 73 S.Ct., at 765. I can only conclude that, so read, the statute incorporates as limitations upon its employment the requirements of the Fourth Amendment.
III.
97
The Court has frequently observed that the Fourth Amendment's two clauses impose separate, although related, limitations upon searches and seizures; the first "is general and forbids every search that is unreasonable," Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 158, 75 L.Ed. 374; the second places a number of specific constraints upon the issuance and character of warrants. It would be inappropriate and fruitless to undertake now to set the perimeters of "reasonableness" with respect to eavesdropping orders in general; any limitations, for example, necessary upon the period over which eavesdropping may be conducted, or upon the use of intercepted information unconnected with the offenses for which the eavesdropping order was first issued, should properly be developed only through a case-by-case examination of the pertinent questions. It suffices here to emphasize that, in my view, electronic eavesdropping, as such or as it is permitted by this statute, is not an unreasonable search and seizure.
98
At the least, reasonableness surely implies that this Court must not constrain in any grudging fashion the development of procedures, consistent with the Amendment's essential purposes, by which methods of search and seizure unknown in 1789 may be appropriately controlled. It is instead obliged to permit, and indeed ever to encourage, serious efforts to approach constructively the difficult problems created by electronic eavesdropping. In this situation, the Court should recognize and give weight to the State's careful efforts to restrict the excessive or unauthorized employment of these devices. New York has provided that no use may be made of eavesdropping devices without a prior court order, and that such an order is obtainable only upon the application of state prosecutorial authorities or of policemen of suitable seniority. N.Y.Code Crim.Proc. § 813-a. Eavesdropping conducted without an order is punishable by imprisonment for as much as two years. N.Y.Penal Law §§ 738, 740. Information obtained through impermissible eavesdropping may not be employed for any purpose in any civil or criminal action, proceeding, or hearing, except in the criminal prosecution of the unauthorized eavesdropper himself. N.Y.Civ.Prac. § 4506. These restrictions are calculated to prevent the "unbridled,"1 "unauthorized,"2 and "indiscriminate"3 electronic searches and seizures which members of this Court have frequently condemned. Surely the State's efforts warrant at least a careful, and even sympathetic, examination of the fashion in which the state courts have construed these provisions, and in which they have applied them to the situation before us. I cannot, in any event, agree that the Fourth Amendment can properly be taken as a roadblock to the use, within appropriate limits, of law enforcement techniques necessary to keep abreast of modern-day criminal activity. The importance of these devices as a tool of effective law enforcement is impressively attested by the data marshalled in my Brother WHITE'S dissenting opinion. Post, p. 107.
IV.
99
I turn to what properly is the central issue in this case: the validity under the Warrants Clause of the Fourth Amendment of the eavesdropping order under which the recordings employed at petitioner's trial were obtained. It is essential first to set out certain of the pertinent facts.
100
The disputed recordings were made under the authority of a § 813-a order, dated June 12, 1962, permitting the installation of an eavesdropping device in the business office of one Harry Steinman; the order, in turn, was, so far as this record shows, issued solely upon the basis of information contained in affidavits submitted to the issuing judge by two assistant district attorneys. The first affidavit, signed by Assistant District Attorney Goldstein, indicated that the Rackets Bureau of the District Attorney's Office of New York County was then conducting an investigation of alleged corruption in the State Liquor Authority, and that the Bureau had received information that persons desiring to obtain or retain liquor licenses were obliged to pay large sums to officials of the Authority. It described the methods by which the bribe money was transmitted through certain attorneys to the officials. The affidavit asserted that one Harry Neyer, a former employee of the Authority, served as a "conduit." It indicated that evidence had been obtained "over a duly authorized eavesdropping device installed in the office of th a foresaid Harry Neyer," that conferences "relative to the payment of unlawful fees" occurred in Steinman's office. The number and street address of the office were provided. The affidavit specified that the "evidence indicates that the said Harry Steinman has agreed to pay, through the aforesaid Harry Neyer, $30,000" in order to secure a license for the Palladium Ballroom, an establishment within New York City. The Palladium, it was noted, had been the subject of hearings before the Authority "because of narcotic arrests therein." On the basis of this information, the affidavit sought an order to install a recording device in Steinman's business office.
101
The second affidavit, signed by Assistant District Attorney Scotti, averred that Scotti, as the Chief of the Bureau to which Goldstein was assigned, had read Goldstein's affidavit, and had concluded that the order might properly issue under § 813-a.
102
The order as issued permitted the recording of 'any and all conversations, communications and discussions' in Steinman's business office for a period of 60 days.
103
The central objections mounted to this order by petitioner, and repeated as to the statute itself by the Court, are three: first, that it fails to specify with adequate particularity the conversations to be seized; second, that it permits a general and indiscriminate search and seizure; and third, that the order was issued without a showing of probable cause.4
104
Each of the first two objections depends principally upon a problem of definition: the meaning in this context of the constitutional distinction between "search" and "seizure." If listening alone completes a "seizure," it would be virtually impossible for state authorities at a probable cause hearing to describe with particularity the seizures which would later be made during extended eavesdropping; correspondingly, seizures would unavoidably be made which lacked any sufficient nexus with the offenses for which the order was first issued. Cf. Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876; Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782. There is no need for present purposes to explore at length the question's subtleties; it suffices to indicate that, in my view, conversations are not "seized" either by eavesdropping alone, or by their recording so that they may later be heard at the eavesdropper's convenience. Just as some exercise of dominion, beyond mere perception, is necessary for the seizure of tangibles so some use of the conversation beyond the initial listening process is required for the seizure of the spoken word. Cf. Lopez v. United States, 373 U.S. 427, 459, 83 S.Ct. 1381, 1398, 10 L.Ed.2d 462 (dissenting opinion); United States v. On Lee, 2 Cir., 193 F.2d 306, 313-314 (dissenting opinion); District of Columbia v. Little, 85 U.S.App.D.C. 242, 247, 178 F.2d 13, 18, 13 A.L.R.2d 954, affirmed on other grounds, 339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599. With this premise, I turn to these three objections.
105
The "particularity" demanded by the Fourth Amendment has never been thought by this Court to be reducible "to formula"; Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 209, 66 S.Ct. 494, 506, 90 L.Ed. 614; it has instead been made plain that its measurement must take fully into account the character both of the materials to be seized and of the purposes of the seizures. Accordingly, where the materials "are books, and the basis or their seizure is the ideas which they contain," the most "scrupulous exactitude" is demanded in the warrant's description; Stanford v. State of Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431; see also Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127; but where the special problems associated with the First Amendment are not involved, as they are not here, a more "reasonable particularity," Brown v. United States, 276 U.S. 134, 143, 48 S.Ct. 288, 290, 72 L.Ed. 500; Consolidated Rendering Co. v. State of Vermont, 207 U.S. 541, 554, 28 S.Ct. 178, 181, 52 L.Ed. 327, is permissible. The degree of particularity necessary is best measured by that requirement's purposes. The central purpose of the particularity requirement is to leave "nothing * * * to the discretion of the officer executing the warrant," Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231, by describing the materials to be seized with precision sufficient to prevent 'the seizure of one thing under a warrant describing another." Ibid. The state authorities are not compelled at the probable cause hearing to wager, upon penalty of a subsequent reversal, that they can successfully predict each of the characteristics of the materials which they will later seize, cf. Consolidated Rendering Co. v. State of Vermont, supra, 207 U.S. at 554, 28 S.Ct. at 181; such a demand would, by discouraging the use of the judicial process, defeat the Amendment's central purpose. United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684.
106
The materials to be seized are instead described with sufficient particularity if the warrant readily permits their identification both by those entrusted with the warrant's execution and by the court in any subsequent judicial proceeding. "It is," the Court has said with reference to the particularity of the place to be searched, "enough if the description is such that the officer * * * can, with reasonable effort ascertain and identify" the warrant's objects. Steele v. United States. No. 1, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757.
107
These standards must be equally applicable to the seizure of words, and, under them, this order did not lack the requisite particularity. The order here permitted the interception, or search, of any and all conversations occurring within the order's time limitations at the specified location; but this direction must be read in light of the terms of the affidavits, which, under § 813, form part of the authority for the eavesdropping. The affidavits make plain that, among the intercepted conversations, the police were authorized to seize only those "relative to the payment of unlawful fees necessary to obtain liquor licenses." These directions sufficed to provide a standard which left nothing in the choice of materials to be seized to the "whim," Stanford v. State of Texas, supra, 379 U.S. at 485, 85 S.Ct., at 512, of the state authorities. There could be no difficulty, either in the course of the search or in any subsequent judicial proceeding, in determining whether specific conversations were among those authorized for seizure by the order. The Fourth and Fourteenth Amendments do not demand more. Compare Kamisar, The Wiretapping-Eavesdropping Problem: A Professor's View, 44 Minn.L.Rev. 891, 913.
108
Nor was the order invalid because it permitted the search of any and all conversations occurring at the specified location; if the requisite papers have identified the materials to be seized with sufficient particularity, as they did here, and if the search was confined to an appropriate area, the order is not invalidated by the examination of all within that area reasonably necessary for discovery of the materials to be seized. I do not doubt that searches by eavesdrop must be confined in time precisely as the search for tangibles is confined in space, but the actual duration of the intrusion here, or for that matter the total period authorize b y the order, was not, given the character of the offenses involved, excessive. All the disputed evidence was obtained within 13 days, scarcely unreasonable in light of an alleged conspiracy involving many individuals and a lengthy series of transactions.
109
The question therefore remains only whether, as petitioner suggests, the order was issued without an adequate showing of probable cause. The standards for the measurement of probable cause have often been explicated in the opinions of this Court; see, e.g., United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684, it suffices now simply to emphasize that the information presented to the magistrate or commissioner must permit him to 'judge for himself the persuasiveness of the facts relied on by a complaining officer.' Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503. The magistrate must "assess independently the probability" that the facts are as the complainant has alleged; id., at 487, 78 S.Ct., at 1250; he may not "accept without question the complainant's mere conclusion." Id., at 486, 78 S.Ct., at 1250.
110
As measured by the terms of the affidavits here, the issuing judge could properly have concluded that probable cause existed for the order. Unlike the situations in Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159, and Giordenello v. United States, supra, the judge was provided the evidence which supported the affiants' conclusions; he was not compelled to rely merely on their "affirmation of suspicion and belief," Nathanson v. United States, supra, 290 U.S., at 46, 54 S.Ct., at 13. Compare Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887; Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. In my opinion, taking the Steinman affidavits on their face, the constitutional requirements of probable cause were fully satisfied.
V.
111
It is, however, plain that the Steinman order was issued principally upon the basis of evidence obtained under the authority of the Neyer order; absent the Neyer eavesdropped evidence, the Steinman affidavits consist entirely of conclusory assertions, and they would, in my judgment, be insufficient. It is, therefore, also necessary to examine the Neyer order.
112
The threshold issue is whether petitioner has standing to challenge the validity under the Constitution of the Neyer order. Standing to challenge the constitutional validity of a search and seizure has been an issue of some difficulty and uncertainty;5 it has, nevertheless, hitherto been thought to hinge, not upon the use against the challenging party of evidence seized during the search, but instead upon whether the privacy of the challenging party's premises or person has been invaded. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. These cases centered upon searches conducted by federal authorities and challenged under Fed.Rule Crim.Proc. 41(e), but there is no reason now to suppose that any different standard is required by the Fourteenth Amendment for searches conducted by state officials. See generally Maguire, Evidence of Guilt 215-216 (1959).
113
The record before us does not indicate with precision what information was obtained under the Neyer order, but it appears, and petitioner does not otherwise assert, that petitioner was never present in Neyer's office during the period in which eavesdropping was conducted. There is, moreover, no suggestion that petitioner had any property interest in the premises in which the eavesdropping device was installed. Apart from the use of evidence obtin ed under the Neyer order to justify issuance of the Steinman order, under which petitioner's privacy was assuredly invaded, petitioner is linked with activities under the Neyer order only by one fleeting and ambiguous reference in the record.
114
In a pretrial hearing conducted on a motion to suppress the Steinman recordings, counsel for the State briefly described the materials obtained under the Neyer order. Counsel indicated that
115
"Mr. Neyer then has conversations with Mr. Steinman and other persons. In the course of some of these conversations, we have one-half of a telephone call, of several telephone calls between Mr. Neyer and a person he refers to on the telephone as Mr. Berger; and in the conversation with Mr. Berger Mr. Neyer discusses also the obtaining of a liquor license for the Palladium and mentions the fact that this is going to be a big one." Counsel for petitioner responded, shortly after, that 'I take it * * * that none of the subject matter to which (counsel for the State) has just adverted is any part of this case * * *.' Counsel for the State responded:
116
"That's right, your Honor. I am not—I think evidence can be brought out during the trial that Berger, who Mr. Steinman, Mr. Neyer speaks to concerning the Palladium, is, in fact, the defendant Ralph Berger."
117
However oblique this invasion of petitioner's personal privacy might at first seem, it would entirely suffice, in my view, to afford petitioner standing to challenge the validity of the Neyer order. It is surely without significance in these circumstances that petitioner did not conduct the conversation from a position physically within the room in which the device was placed; the fortuitousness of his location can matter no more than if he had been present for a conference in Neyer's office, but had not spoken, or had been seated beyond the limits of the device's hearing. The central question should properly be whether his privacy has been violated by the search; it is enough for this purpose that he participated in a discussion into which the recording intruded. Standing should not, in any event, be made an insuperable barrier which unnecessarily deprives of an adequate remedy those whose rights have been abridged; to impose distinctions of excessive refinement upon the doctrine "would not comport with our justly proud claim of the procedural protections accorded to those charged with crime." Jones v. United States, supra, 362 U.S., at 267, 80 S.Ct., at 734. It would instead "permit a quibbling distinction to overturn a principle which was designed to protect a fundamental right." United States v. Jeffers, 342 U.S. 48, 52, 72 S.Ct. 93, 95, 96 L.Ed. 59. I would conclude that, under the circumstances here, the recording of a portion of a telephone conversation to which petitioner was party would suffice to give him standing to challenge the validity under the Constitution of the Neyer order.6
118
Given petitioner's standing under federal law to challenge the validity of the Neyer order, I would conclude that such order was issued without an adequate showing of probable cause. It seems quite plain, from the facts described by the State, that at the moment the Neyer order was sought the Rackets Bureau indeed had ample information to justify the issuance of an eavesdropping order. Nonetheless, the affidavits presented at the Neyer hearing unaccountably contained only the most conclusory allegations of suspicion. The record before us is silent on whether additional information might have been orally presented to the issuing judge.7 Under thse circumstances, I am impelled to the view that the judge lacked sufficient information to permit him to assess the circumstances as a "neutral and detached magistrate," Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436, and accordingly that the Neyer order was impermissible.
VI.
119
It does not follow, however, that evidence obtained under the Neyer order could not properly have been employed to support issuance of the Steinman order. The basic question here is the scope of the exclusionary rule fashioned in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, and made applicable to state proceedings in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. The Court determined in Weeks that the purposes of the Fourth Amendment could be fully vindicated only if materials seized in violation of its requirements were excluded from subsequent use against parties aggrieved by the seizure. Despite broader statements in certain of the cases, see, e.g., Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319, the situations for which the Weeks rule was devised, and to which it has since been applied, have uniformly involved misconduct by police or prosecutorial authorities. The rule's purposes have thus been said to be both to discourage "disobedience to the Federal Constitution," Mapp v. Ohio, supra, 367 U.S., at 657, 81 S.Ct., at 1693, and to avoid any possibility that the courts themselves might be "accomplices in the willful disobedience of a Constitution they are sworn to uphold." Elkins v. United States, 364 U.S. 206, 223, 80 S.Ct. 1437, 1447, 4 L.Ed.2d 1669. The Court has cautioned that the exclusionary rule was not intended to establish supervisory jurisdiction over the administration of state criminal justice, and that the States might still fashion "workable rules governing arrests, searches and seizures." Ker v. State of California, 374 U.S. 23, 34, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726.
120
I find nothing in the terms or purposes of the rule which demands the invalidation, under the circumstances at issue here, of the Steinman order. The state authorities appeared, as the statute requires, before a judicial official, and held themselves ready to provide information to justify the issuance of an eavesdropping order. The necessary evidence was at hand, and there was apparently no reason for the State to have preferred that it not be given to the issuing judge. The Neyer order is thus invalid simply as a consequence of the judge's willingness to act upon substantially less information than the Fourteenth Amendment obliged him to demand; correspondingly, the only "misconduct" that could be charged against the prosecution consists entirely of its failure to press additional evidence upon him. If the exclusionary rule were to be applied in this and similar situations, praiseworthy efforts of law enforcement authorities would be seriously, and quite unnecessarily, hampered; the evidence lawfully obtained under a lengthy series of valid warrants might, for example, be lost by the haste of a single magistrate. The rule applied in that manner would not encourage police officers to adhere to the requirements of the Constitution; it would simply deprive the State of evidence it has sought in accordance with those requirements.
121
I would hold that where, as here, authorities have obtained a warrant in a judicial proceeding untainted by fraud, a second warrant issued on the authority of evidence gathered under the first is not invalidated by a subsequent finding tht the first was issued without a showing of probable cause.
VII.
122
It follows that the Steinman order was, as a matter of constitutional requirement, validly issued, that the recordings obtained under it were properly admitted at petitioner's trial, and, accordingly, that his conviction must be affirmed.8
123
Mr. Justice WHITE, dissenting.
124
With all due respect, I dissent from the majority's decision which unjustifiably strikes down 'on its face' a 1938 New York statute applied by state officials in securing petitioner's conviction. In addition, I find no violation of petitioner's constitutional rights and I would affirm.
I.
125
At petitioner's trial for conspiring to bribe the Chairman of the New York State Liquor Authority, the prosecution introduced tape recordings obtained through an eavesdrop of the office of Harry Steinman which had been authorized by court order pursuant to § 813-a, N.Y.Code Crim.Proc. Since Berger was rightfully in Steinman's office when his conversations were recorded through the Steinman eavesdrop, he is entitled to have those recordings excluded at his trial if they were unconstitutionally obtained. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697; Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734. Petitioner vigorously argues that all judicially authorized eavesdropping violates Fourth Amendment rights, but his position is unsound.
126
Two of petitioner's theories are easily answered. First, surreptitious electronic recording of conversations among private persons, and introduction of the recording during a criminal trial, do not violate the Fifth Amendment's ban against compulsory self-incrimination because the conversations are not the product of any official compulsion. Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944; Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374; Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394. Second, our decision in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782, answers petitioner's contention that eavesdropping under § 813-a constitutes an unlawful search for "mere evidence"; whatever the limits of the search and seizure power may be under the Fourth Amendment, the oral evidence of a furtive bribery conspiracy sought in the application for the Steinman eavesdrop order was within the scope of proper police investigation into suspected criminal activity.
127
Petitioner primarily argues that eavesdropping is invalid, even pursuant to court order or search warrant, because it constitutes a 'general search' barred by the Fourth Amendment. Petitioner suggests that the search is inherently overbroad because the eavesdropper will overhear conversations which do not relate to criminal activity. But the same is true of almost all searches of private property which the Fourth Amendment permits. In searching for seizable matters, the police must necessarily see or hear, and comprehend, items which do not relate to the purpose of the search. That this occurs, however, does not render the search invalid, so long as it is authorized by a suitable search warrant and so long as the police, in executing that warrant, limit themselves to searching for items which may constitutionally be seized.1 Thus, while I would agree with petitioner that individual searches of private property through surreptitious eavesdropping with a warrant must be carefuly circumscribed to avoid excessive invasion of privacy and security, I cannot agree that all such intrusions are constitutionally impermissible general searches.
128
This case boils down, therefore, to the question of whether § 813-a was constitutionally applied in this case. At the outset, it is essential to note that the recordings of the Neyer office eavesdrop were not introduced at petitioner's trial, nor was petitioner present during this electronic surveillance, nor were any of petitioner's words recorded by that eavesdrop. The only links between the Neyer eavesdrop and petitioner's conviction are (a) that evidence secured from the Neyer recordings was used in the Steinman affidavits, which in turn led to the Steinman eavesdrop where petitioner's incriminating conversations were overheard; and (b) that the Neyer eavesdrop recorded what may have been2 the Neyer end of a telephone conversation between Neyer and Berger. In my opinion, it is clear that neither of these circumstances is enough to establish that Berger's Fourth Amendment interests were invaded by the eavesdrop in Neyer's office. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697. Thus, petitioner cannot secure reversal on the basis of the allegedly unconstitutional Neyer eavesdrop.
129
I turn to the circumstances surrounding the issuance of the one eavesdrop order which petitioner has 'standing' to challenge. On June 11, 1962, Assistant District Attorney David Goldstein filed an affidavit before Judge Joseph Sarafite of the New York County Court of General Sessions requesting a court order under § 813-a authorizing the Steinman eavesdrop. Goldstein averred that the District Attorney's office was investigating alleged corruption in the State Liquor Authority, that the office had obtained evidence of a conspiracy between Authority officials and private attorneys to extort large illegal payments from liquor license applicants, that a "duly authorized eavesdropping device" had previously been installed in the office of Neyer who was suspected of acting as a conduit for the bribes, and that this device had obtained evidence "that conferences relative to the payment of unlawful fees necessary to obtain liquor licenses occur in the office of one Harry Steinman, located in Room 801 at 15 East 48th Street, in the County, City and State of New York." The affidavit went on to describe Steinman at length as a prospective liquor license applicant and to relate evidence of a specific payoff which Steinman was likely to make, through Neyer, in the immediate future. On the basis of these facts, the affidavit concluded that "there is reasonable ground to believe that evidence of crime may be obtained by overhearing and recording the conversations, communications and discussions that may take place in the office of Harry Steinman which is located in Room 801 at 15 East 48th Street," and requested an orde a uthorizing an eavesdrop until August 11, 1962. An affidavit of Assistant District Attorney Alfred Scotti verified the information contained in the Goldstein affidavit. The record also indicates that the affidavits were supplemented by orally presenting to Judge Sarafite all of the evidence obtained from the Neyer eavesdrop. But assuming that the Steinman court order was issued on the affidavits alone, I am confident that those affidavits are sufficient under the Fourth Amendment.
130
Goldstein's affidavit described with "particularity" what crime Goldstein believed was being committed; it requested authority to search one specific room; it described the principal object of the search—Steinman and his co-conspirators—and the specific conversations which the affiant hoped to seize; it gave a precise time limit to the search; and it told the judge the manner in which the affiant had acquired his information. Petitioner argues that the reliability of the Neyer eavesdrop information was not adequately verified in the Steinman affidavit. But the Neyer eavesdrop need not be explained in detail in an application to the very judge who had authorized it just two months previously. Judge Sarafite had every reason to conclude that the Neyer eavesdrop was a reliable basis for suspecting a criminal conspiracy (consisting as the recording did of admissions by Steinman and other co-conspirators) and that it was the source of the specific evidence recited in the Steinman affidavits. "(A)ffidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion," United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 16 L.Ed.2d 684. I conclude that the Steinman affidavits fully satisfied the Fourth Amendment requirements of probable cause and particularity in the issuance of search warrants.
131
The Court, however, seems irrestibly determined to strike down the New York statute. The majority criticizes the ex parte nature of § 813-a court orders, the lack of a requirement that "exigent circumstances" be shown, and the fact that one court authorizes "a series or a continuous surveillance." But where are such search warrant requirements to be found in the Fourth Amendment or in any prior case construing it? The Court appears intent upon creating out of whole cloth new constitutionally mandated warrant procedures carefully tailored to make eavesdrop warrants unobtainable. That is not a judicial function. The question here is whether this search complied with Fourth Amendment standards. There is no indication in this record that the District Attorney's office seized and used conversations not described in the Goldstein affidavit, nor that officials continued the search after the time when they had gathered the evidence which they sought. Given the constitutional adequacy of the Goldstein affidavit in terms of Fourth Amendment requirements of probable cause and particularity, I conclude that both the search and seizure in Steinman's office satisfied Fourth Amendment mandates. Regardless of how the Court would like eavesdropping legislation to read, our function ends in a state case with the determination of these questions.
II.
132
Unregulated use of electronic surveillance devices by law enforcement officials and by private parties poses a grave threat to the privacy and security of our citizens. As the majority recognizes, New York is one of a handful of States that have reacted to this threat by enacting legislation that limits official use of all such devices to situations where designated officers obtain judicial authorization to eavesdrop. Except in these States, there is a serious lack of comprehensive and sensible legislation in this field, a need that has been noted by many, including the President's prestigious Commission on Law Enforcement and Administration of Justice (the "Crime Commission") in its just-published reports.3 Bills have been introduced atth is session of Congress to fill this legislative gap, and extensive hearings are in progress before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, and before Subcommittee No. 5 of the House Committee on the Judiciary.
133
At least three positions have been presented at these hearings. Opponents of eavesdropping and wiretapping argue that they are so "odious" an invasion of privacy that they should never be tolerated. The Justice Department, in advocating the Administration's current position, asserts a more limited view; its bill would prohibit all wiretapping and eavesdropping by state and federal authorities except in cases involving the "national security," and in addition would ban judicial use of evidence gathered even in national security cases. S. 928 and H.R. 5386, 90th Cong., 1st Sess. Advocates of a third position, who include many New York law enforcement personnel and others, agree that official eavesdropping and wiretapping must be stringently controlled but argue that such methods are irreplaceable investigative tools which are needed for the enforcement of criminal laws and which can be adequately regulated through legislation such as New York's § 813-a.
134
The grant of certiorari in this case has been widely noted, and our decision can be expected to have a substantial impact on the current legislative consideration of these issues. Today's majority does not, in so many words, hold that all wiretapping and eavesdropping are constitutionally impermissible. But by transparent indirection it achieves practically the same result by striking down the New York statute and imposing a series of requirements for legalized electronic surveillance that will be almost impossible to satisfy.
135
In so doing, the Court ignores or discounts the need for wiretapping authority and incredibly suggests that there has been no breakdown of federal law enforcement despite the unavailability of a federal statute legalizing electronic surveillance. The Court thereby impliedly disagrees with the carefully documented reports of the Crime Commission which, contrary to the Court's intimations, underline the serious proportions of professional criminal activity in this country, the failure of current national and state efforts to eliminate it, and the need for a statute permitting carefully controlled official use of electronic surveillance, particularly in dealing with organized crime and official corruption. See Appendix A, infra; Report of the Crime Commission's Task Force on Organized Crime 17-19, 80, 91-113 (1967). How the Court can feel itself so much better qualified than the Commission, which spent months on its study, to assess the needs of law enforcement is beyond my comprehension. We have only just decided that reasonableness of a search under the Fourth Amendment must be determined by weighing the invasions of Fourth Amendment interests which wiretapping and eavesdropping entail against the public need justifying such invasions. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930; See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943. In these terms, it would seem imperative that the Court at least deal with facts of the real world. This the Court utterly fails to do. In my view, its opinion is wholly unresponsive to the test of reasonableness under the Fourth Amendment.
136
The Court also seeks support in the fact that the Federal Government does not now condone electronic eavesdropping. But here the Court is treading on treacherous ground.4 It is true that the Department of Justiceha § now disowned the relevant findings and recommendations of the Crime Commission, see Hearings on H.R. 5386 before Subcommittee No. 5 of the House Committee on the Judiciary, 90th Cong., 1st Sess., ser. 3, at 308 (1967) (hereafter cited as "House Hearings"), and that it has recommended to the Congress a bill which would impose broad prohibitions on wiretapping and eavesdropping. But although the Department's communication to the Congress speaks of "exercis(ing) the full reach of our constitutional powers to outlaw electronic eavesdropping on private conversations,"5 the fact is, as I have already indicated, that the bill does nothing of the kind. Both H.R. 5386 and its counterpart in the Senate, S. 928, provide that the prohibitions in the bill shall not be deemed to apply to interceptions in national security cases. Apparently, under this legislation, the President without court order would be permitted to authorize wiretapping or eavesdropping "to protect the Nation against actual or potential attack or other hostile acts of a foreign power or any other serious threat to the security of the United States, or to protect national security information against foreign intelligence activities." H.R. 5386 and S. 928, § 3.
137
There are several interesting aspects to this proposed national security exemption in light of the Court's opinion. First, there is no limitation on the President's power to delegate his authority, and it seems likely that at least the Attorney General would exercise it. House Hearings, at 302. Second, the national security exception would reach cases like sabotage and investigations of organizations controlled by a foreign government. For example, wiretapping to prove an individual is a member of the Communist Party, it is said, would be permissible under the statute. House Hearings, at 292. Third, information from authorized surveillance in the national security area would not be admissible in evidence; to the contrary, the surveillance would apparently be for investigative and informational use only, not for use in a criminal prosecution and not authorized because of any belief or suspicion that a crime is being committed or is about to be committed. House Hearings, at 289. Fourth, the Department of Justice has recommended that the Congress not await this Court's decision in the case now before us because whether or not the Court upholds the New York statute the power of Congress to enact the proposed legislation would not be affected. House Hearings, at 308. But if electronic surveillance is a "general search," or if it must be circumscribed in the manner the Court now suggests, how can surreptitious electronic surveillance of a suspected Communist or a suspected saboteur escape the strictures of the Fourth Amendment? It seems obvious from the Department of Justice bill that the present Administration believes that there are some purposes and uses of electronic surveillance which do not involve violations of the Fourth Amendment by the Executive Branch. Such being the case, even if the views of the Executive were to be the final answer in this case, the requirements imposed by the Court to constitutionalize wiretapping and eavesdropping are a far cry from the practice anticipated under the proposed federal legislation now before the Congress.
138
But I do not think the views of the Executive should be dispositive of the broader Fourth Amendment issues raised in this case. If the security of the National ov ernment is a sufficient interest to render eavesdropping reasonable, on what tenable basis can a contrary conclusion be reached when a State asserts a purpose to prevent the corruption of its major officials, to protect the integrity of its fundamental processes, and to maintain itself as a viable institution? The serious threat which organized crime poses to our society has been frequently documented. The interrelation between organized crime and corruption of governmental officials is likewise well established,6 and the enormous difficulty of eradicating both forms of social cancer is proved by the persistence of the problems if by nothing else. The Crime Commission has concluded that "only in New York have law enforcement officials been able to mount a relatively continuous and relatively successful attack on an organized crime problem," that "electronic surveillance techniques * * * have been the tools" making possible such an attack, and that practice under New York's § 813-a has achieved a proper balance between the interests of "privacy and justice." Task Force Report, at 95. And New York County District Attorney Frank S. Hogan, who has been on the job almost as long as any member of this Court, has said of the need for legislation similar to § 813-a:
139
"The judicially supervised system under which we operate has worked. It has served efficiently to protect the rights, liberties, property, and general welfare of the law-abiding members of our community. It has permitted us to undertake major investigations of organized crime. Without it, and I confine myself to top figures in the underworld, my own office could not have convicted Charles 'Lucky' Luciano, Jimmy Hines, Louis 'Lepke' Buchalter, Jacob 'Gurrah' Shapiro, Joseph 'Socks' Lanza, George Scalise, Frank Erickson, John 'Dio' Dioguardi, and Frank Carbo. Joseph 'Adonis' Doto, who was tried in New Jersey, was convicted and deported on evidence supplied by our office and obtained by assiduously following leads secured through wiretapping." Hearings on S. 2813 before the Senate Committee on the Judiciary, 87th Cong.2d Sess., at 173 (1962).
140
To rebut such evidence of the reasonableness of regulated use of official eavesdropping, the Court presents only outdated statistics on the use of § 813-a in the organized crime and corruption arenas, the failure of the Congress thus far to enact similar legislation for federal law enforcement officials, and the blind hope that other "techniques and practices may well be developed that will operate just as speedily and certainly." None of this is even remotely responsive to the question whether the use of eavesdropping techniques to unveil the debilitating corruption involved in this case was reasonable under the Fourth Amendment. At best, the Court puts forth an apologetic and grossly inadequate justification for frustrating New York law enforcement by invalidating § 813-a.
141
In any event, I do not consider this case a proper vehicle for resolving all of these broad constitutional and legislative issues raised by the problem of official use of wiretapping and eavesdropping. I would hold only that electronic surveillance was a reasonable investigative tool to apply in uncovering corruption among high state officials, compare Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394, that the § 813-a court procedure as used in this case satisfied the Fourth Amendment's search warrant requirements, and that New York officialsli mited themselves to a constitutionally permissible search and seizure of petitioner's private conversations in executing that court order. Therefore, I would affirm.
142
APPENDIX TO OPINION OF MR. JUSTICE WHITE.
143
Excerpt from "The Challenge of Crime in a Free Society," A Report by the President's Commission on Law Enforcement and Administration of Justice, at 200-203 (1967).
144
A NATIONAL STRATEGY AGAINST ORGANIZED CRIME
145
Law enforcement's way of fighting organized crime has been primitive compared to organized crime's way of operating. Law enforcement must use methods at least as efficient as organized crime's. The public and law enforcement must make a full-scale commitment to destroy the power of organized crime groups. The Commission's program indicates ways to implement that commitment.
PROOF OF CRIMINAL VIOLATION
146
The previous section has described the difficulties that law enforcement agencies meet in trying to prove the participation of organized crime family members in criminal acts. Although earlier studies indicated a need for new substantive criminal laws, the Commission believes that on the Federal level, and in most State jurisdictions where organized crime exists, the major problem relates to matters of proof rather than inadequacy of substantive criminal laws, as the latter—for the most part—are reasonably adequate to deal with organized crime activity. The laws of conspiracy have provided an effective substantive tool with which to confront the criminal groups. From a legal standpoint, organized crime continues to grow because of defects in the evidence-gathering process. Under present procedures, too few witnesses have been produced to prove the link between criminal group members and the illicit activities that they sponsor.
147
Grand Juries. A compulsory process is necessary to obtain essential testimony or material. This is most readily accomplished by an investigative grand jury or an alternate mechanism through which the attendance of witnesses and production of books and records can be ordered. Such grand juries must stay in session long enough to allow for the unusually long time required to build an organized crime case. The possibility of arbitrary termination of a grand jury by supervisory judges constitutes a danger to successful completion of an investigation.
The Commission recommends:
148
At least one investigative grand jury should be impaneled annually in each jurisdiction that has major organized crime activity.
149
If a grand jury shows the court that its business is unfinished at the end of a normal term, the court should extend that term a reasonable time in order to allow the grand jury to complete pending investigations. Judicial dismissal of grand juries with unfinished business should be appealable by the prosecutor and provision made for suspension of such dismissal orders during the appeal.
150
The automatic convening of these grand juries would force less than diligent investigators and prosecutors to explain their inaction. The grand jury should also have recourse when not satisfied with such explanations.
The Commission recommends:
151
The grand jury should have the statutory right of appeal to an appropriate executive official, such as an attorney general or governor, to replace local prosecutors or investigators with special counsel or special investigators appointed only in relation to matters that they or the grand jury deem appropriate for investigation.
152
When a grand jury terminates, it should be permitted by law to file public reports regarding organized crime conditions in the community.
153
Immunity. A general immunity statute as proposed in chapter 5 on the courts is essential in organized crime investigations and prosecutions. There is evidence to indicate that the availability of immunity can overcome the wall of silence that so often defeats the efforts of law enforcement to obtain live witnesses in organized crime cases. Since the activities of criminal groups involve such a broad scope of criminal violations, immunity provisions covering this breadth of illicit actions are necessary to secure the testimony of uncooperative or criminally involved witnesses. Once granted immunity from prosecution based upon their testimony, such witnesses must testify before the grand jury and at trial, or face jail for contempt of court.
154
Federal, State, and local coordination of immunity grants, and approval by the jurisdiction's chief law enforcement officer before immunity is granted, are crucial in organized crime investigations. Otherwise, without such coordination and approval, or through corruption of officials, one jurisdiction might grant immunity to someone about to be arrested or indicted in another jurisdiction.
The Commission recommends:
155
A general witness immunity statute should be enacted at Federal and State levels, providing immunity sufficiently broad to assure compulsion of testimony. Immunity should be granted only with the prior approval of the jurisdiction's chief prosecuting officer. Efforts to coordinate Federal, State, and local immunity grants should be made to prevent interference with existing investigations.
156
Perjury. Many prosecutors believe that the incidence of perjury is higher in organized crime cases than in routine criminal matters. Immunity can be an effective prosecutive weapon only if the immunized witness then testifies truthfully. The present special proof requirements in perjury cases, detailed in chapter 5, inhibit prosecutors from seeking perjury indictments and lead to much lower conviction rates for perjury than for other crimes. Lessening of rigid proof requirements in perjury prosecutions would strengthen the deterrent value of perjury laws and present a greater incentive for truthful testimony.
The Commission recommends:
157
Congress and the States should abolish the rigid two-witness and direct-evidence rules in perjury prosecutions, but retain the requirement of proving an intentional false statement.
WIRETAPPING AND EAVESDROPPING
158
In connection with the problems of securing evidence against organized crime, the Commission considered issues relating to electronic surveillance, including wiretapping and "bugging"—the secret installation of mechanical devices at specific locations to receive and transmit conversations.
159
Significance to Law Enforcement. The great majority of law enforcement officials believe that the evidence necessary to bring criminal sanctions to bear consistently on the higher echelons of organized crime will not be obtained without the aid of electronic surveillance techniques. They maintain these techniques are indispensable to develop adequate strategic intelligence concerning organized crime, to set up specific investigations, to develop witnesses, to corroborate their testimony, and to serve as substitutes for them—each a necessary step in the evidence-gathering process in organized crime investigations and prosecutions.
160
As previously noted, the organizational structure and operational methods employed by organized crime have created unique problems for law enforcement. High-ranking organized crime figures are protected by layers of insulation from direct participation in criminal acts, and a rigid code of discipline inhibits the development of informants against them. A soldier in a family can complete his entire crime career without ever associating directly with his boss. Thus, he is unable, even if willing, to link the boss directly to any criminal activity in which he may have engaged for their mutual benefit. Agents and employees of an organized crime family, even when granted immunity from prosecution, cannot implicate the highest level figures, since frequently they have neither spoken to, nor even seen them.
161
Members of the underworld, who have legitimate reason to fear that their meetings might be bugged or their telephones tapped, have continued to meet and to make relatively free use of the telephone—for comun ication is essential to the operation of any business enterprise. In legitimate business this is accomplished with written and oral exchanges. In organized crime enterprises, however, the possibility of loss or seizure of an incriminating document demands a minimum of written communication. Because of the varied character of organized criminal enterprises, the large numbers of persons employed in them, and frequently the distances separating elements of the organization, the telephone remains an essential vehicle for communication. While discussions of business matters are held on a face-to-face basis whenever possible, they are never conducted in the presence of strangers. Thus, the content of these conversations, including the planning of new illegal activity, and transmission of police decisions or operating instructions for existing enterprises, cannot be detected. The extreme scrutiny to which potential members are subjected and the necessity for them to engage in criminal activity have precluded law enforcement infiltration or organized crime groups.
162
District Attorney Frank S. Hogan, whose New York County office has been acknowledged for over 27 years as one of the country's most outstanding, has testified that electronic surveillance is:
163
the single most valuable weapon in law enforcement's fight against organized crime * * * It has permitted us to undertake major investigations of organized crime. Without it, and I confine myself to top figures in the underworld, my own office could not have convicted Charles 'Lucky' Luciano, Jimmy Hines, Louis 'Lepke' Buchalter, Jacob 'Gurrah' Shapiro, Joseph 'Socks' Lanza, George Scalise, Frank Erickson, John 'Dio' Dioguardi, and Frank Carbo * * *
164
Over the years New York has faced one of the Nation's most aggravated organized crime problems. Only in New York have law enforcement officials achieved some level of continuous success in bringing prosecutions against organized crime. For over 20 years, New York has authorized wiretapping on court order. Since 1957, bugging has been similarly authorized. Wiretapping was the mainstay of the New York attack against organized crime until Federal court decisions intervened. Recently chief reliance in some offices has been placed on bugging, where the information is to be used in court. Law enforcement officials believe that the successes achieved in some parts of the State are attributable primarily to a combination of dedicated and competent personnel and adequate legal tools; and that the failure to do more in New York has resulted primarily from the failure to commit additional resources of time and men. The debilitating effect of corruption, political influence, and incompetence, underscored by the New York State Commission of Investigation, must also be noted.
165
In New York at one time, Court supervision of law enforcement's use of electronic surveillance was sometimes perfunctory, but the picture has changed substantially under the impact of pretrial adversary hearings on motions to suppress electronically seized evidence. Fifteen years ago there was evidence of abuse by low-rank policemen. Legislative and administrative controls, however, have apparently been successful in curtailing its incidence.
166
The Threat to Privacy. In a democratic society privacy of communication is essential if citizens are to think and act creatively and constructively. Fear or suspicion that one's speech is being monitored by a stranger, even without the reality of such activity, can have a seriously inhibiting effect upon the willingness to voice critical and constructive ideas. When dissent from the popular view is discouraged, intellectual controversy is smothered, the process for testing new concepts and ideas is hindered and desirable change is slowed. External restraints, of which electronic surveillance is but one possibility, are thus repugnant to citizens of such a society.
167
Today, in addition to some law enforcement agents, numerous private persons are utilizng these techniques. They are employed to acquire evidence for domestic relations cases, to carry on industrial espionage and counter-espionage, to assist in preparing for civil litigation, and for personnel investigations, among others. Technological advances have produced remarkably sophisticated devices, of which the electronic cocktail olive is illustrative, and continuing price reductions have expanded their markets. Nor has man's ingenuity in the development of surveillance equipment been exhausted with the design and manufacture of electronic devices for wiretapping or for eavesdropping within buildings or vehicles. Parabolic microphones that pick up conversations held in the open at distances of hundreds of feet are available commercially, and some progress has been made toward utilizing the laser beam to pick up conversations within a room by focusing upon the glass of a convenient window. Progress in micro-miniaturizing electronic components has resulted in the production of equipment of extremely small size. Because it can detect what is said anywhere—not just on the telephone—bugging presents especially serious threats to privacy.
168
Detection of surveillance devices is difficult, particularly where an installation is accomplished by a skilled agent. Isolated instances where equipment is discovered in operation therefore do not adequately reflect the volume of such activity; the effectiveness of electronic surveillance depends in part upon investigators who do not discuss their activities. The current confusion over the legality of electronic surveillance compounds the assessment problem since many agents feel their conduct may be held unlawful and are unwilling to report their activities. It is presently impossible to estimate with any accuracy the volume of electronic surveillance conducted today. The Commission is impressed, however, with the opinions of knowledgeable persons that the incidence of electronic surveillance is already substantial and increasing at a rapid rate.
169
Present Law and Practice. In 1928 the U. S. Supreme Court decided that evidence obtained by wiretapping a defendant's telephone at a point outside the defendant's premises was admissible in a Federal criminal prosecution. The Court found no unconstitutional search and seizure under the Fourth Amendment. Enactment of Section 605 of the Federal Communications Act in 1934 precluded interception and disclosure of wire communications. The Department of Justice has interpreted this section to permit interception so long as no disclosure of the content outside the Department is made. Thus, wiretapping may presently be conducted by a Federal agent, but the results may not be used in court. When police officers wiretap and disclose the information obtained, in accordance with State procedure, they are in violation of Federal law.
170
Law enforcement experience with bugging has been much more recent and more limited than the use of the traditional wiretap. The legal situation with respect to bugging is also different. The regulation of the national telephone communication network falls within recognized national powers, while legislation attempting to authorize the placing of electronic equipment even under a warrant system would break new and uncharted ground. At the present time there is no Federal legislation explicitly dealing with bugging. Since the decision of the Supreme Court in Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961), use of bugging equipment that involves an unauthorized physical entry into a constitutionally protected private area violates the Fourth Amendment, and evidence thus obtained is inadmissible. If eavesdropping is unaccompanied by such a trespass, or if the communication is recorded with the consent of one of the parties, no such prohibition applies.
171
The confusion that has arisen inhibits cooperation between State and Federal law enforcement agencies because of the fear that information secured in one investigatin will legally pollute another. For example, in New York City prosecutors refuse to divulge the contents of wire communications intercepted pursuant to State court orders because of the Federal proscription but do utilize evidence obtained by bugging pursuant to court order. In other sections of New York State, however, prosecutors continue to introduce both wiretapping and eavesdropping evidence at trial.
172
Despite the clear Federal prohibition against disclosure of wiretap information no Federal prosecutions of State officers have been undertaken, although prosecutions of State officers under State laws have occurred.
173
One of the most serious consequences of the present state of the law is that private parties and some law enforcement officers are invading the privacy of many citizens without control from the courts and reasonable legislative standards. While the Federal prohibition is a partial deterrent against divulgence, it has no effect on interception, and the lack of prosecutive action against violators has substantially reduced respect for the law.
174
The present status of the law with respect to wiretapping and bugging is intolerable. It serves the interests neither or privacy nor of law enforcement. One way or the other, the present controversy with respect to electronic surveillance must be resolved.
The Commission recommends:
175
Congress should enact legislation dealing specifically with wiretapping and bugging.
176
All members of the Commission agree on the difficulty of striking the balance between law enforcement benefits from the use of electronic surveillance and the threat to privacy its use may entail. Further, striking this balance presents important constitutional questions now pending before the U.S. Supreme Court in People v. Berger, and any congressional action should await the outcome of that case.
177
All members of the Commission believe that if authority to employ these techniques is granted it must be granted only with stringent limitations. One form of detailed regulatory statute that has been suggested to the Commission is outlined in the appendix to the Commission's organized crime task force volume. All private use of electronic surveillance should be placed under rigid control, or it should be outlawed.
178
A majority of the members of the Commission believe that legislation should be enacted granting carefully circumscribed authority for electronic surveillance to law enforcement officers to the extent it may be consistent with the decision of the Supreme Court in People v. Berger, and, further, that the availability of such specific authority would significantly reduce the incentive for, and the incidence of, improper electronic surveillance.
179
The other members of the Commission have serious doubts about the desirability of such authority and believe that without the kind of searching inquiry that would result from further congressional consideration of electronic surveillance, particularly of the problems of bugging, there is insufficient basis to strike this balance against the interests of privacy.
180
Matters affecting the national security not involving criminal prosecution are outside the Commission's mandate, and nothing in this discussion is intended to affect the existing powers to protect that interest.
1
'§ 813—a. Ex parte order for eavesdropping.
"An ex parte order for eavesdropping as defined in subdivisions one and two of section seven hundred thirty-eight of the penal law may be issued by any justice of the supreme court or judge of a county court or of the court of general sessions of the county of New York upon oath or affirmation of a district attorney, or of the attorney-general or of an officer above the rank of sergeant of any police department of the state or of any political subdivision thereof, that there is reasonable ground to believe that evidence of crime may be thus obtained, and particularly describing the person or persons whose communications, conversations or discussions are to be overheard or recorded and the purpose thereof, and, in the case of a telegraphic or telephonic communication, identifying the particular telephone number or telegraph line involved. In connection with the issuance of such an order the justice or judge may examine on oath the applicant and any other witness he may produce and shall satisfy himself of the existence of reasonable grounds for the granting of such application. Any such order shall be effective for the time specified therein but not for a period of more than two months unless extended or renewed by the justice or judge who signed and issued the original order upon satisfying himself that such extension or renewal is in the public interest. Any such order together with the papers upon which the application was based, shall be delivered to and retained by the applicant as authority for the eavesdropping authorized therein. A true copy of such order shall at all times be retained in his possession by the judge or justice issuing the same, and, in the event of the denial of an application for such an order, a true copy of the papers upon which the application was based shall in like manner be retained by the judge or justice denying the same. As amended L.1958, c. 676, eff. July 1, 1958."
2
This contention is disposed of in Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782, adversely to petitioner's assertion here.
3
48 Stat. 1103, 47 U.S.C. § 605.
4
Cal.Pen.Code §§ 653h-653j; Ill.Rev.Stat., c. 38, §§ 14-1 to 14-7 (1965); Md.Ann.Code, Art. 27, § 125A (1957); Mass.Gen.Laws, c. 272, § 99 (Supp.1966); Nev.Rev.Stat. § 200.650 (1963); N.Y.Pen.Law, McKinney's Consol.Laws, c. 40, § 738 (Supp.1966); Ore.Rev.Stat. § 165.540(1)(c) (Supp.1965).
5
Ala.Code, Tit. 48, § 414 (1958); Alaska Stat. § 42.20.100 (1962); Ark.Stat.Ann. § 73-1810 (1957); Cal.Pen.Code § 640; Colo.Rev.Stat.Ann. § 40-4-17 (1963); Conn.Gen.Stat.Rev. § 53-140 (1958); Del.Code Ann., Tit. 11, § 757 (Supp.1966); Fla.Stat. § 822.10 (1965) F.S.A.; Hawaii Rev.Laws § 309A-1 (Supp.1963); Idaho Code Ann. §§ 18-6704, 18-6705 (1947); Ill.Rev.Stat., c. 134, § 16 (1965); Iowa Code § 716.8 (1962); Ky.Rev.Stat. § 433.430 (1962); La.Rev.Stat. § 14:322 (1950); Md.Ann.Code, Art. 35, §§ 92, 93 (1957); Mass.Gen.Laws, c. 272, § 99 (Supp.1966); Mich.Stat.Ann. § 28.808, C.L.1948, § 750.540 (1954); Mont.Rev.Codes Ann. § 94-3203 (Supp.1965); Neb.Rev.Stat. § 86-328 (1966); Nev.Rev.Stat. §§ 200.620, 200.630 (1963), N.J.S.A.; N.J.Rev.Stat. § 2A:146-1 (1953); N.M.Stat.Ann. § 40A-12-1 (1964); N.Y.Penal Law § 738 (Supp.1966); N.C.Gen.Stat. § 14-155 (1953); N.D.Cent.Code § 8-10-07 (1959); Ohio Rev.Code Ann. § 4931.28 (1954); Okla.Stat., Tit. 21, § 1757 (1961); Ore.Rev.Stat. § 165.540(1) (Supp.1965); Pa.Stat.Ann., Tit. 15, § 2443 (1958); R.I.Gen.Laws Ann. § 11-35-12 (1956); S.D.Code § 13.4519 (1939); Tenn.Code Ann. § 65-2117 (1955); Utah Code Ann. § 76-48-11 (1953); Va.Code Ann. § 18.1-156 (1960 Repl.Vol.); Wis.Stat. § 134.39 (1963); Wyo.Stat.Ann. § 37-259 (1957).
6
A recent Federal Communications Commission Regulation, 31 Fed.Reg. 3400, 47 CFR § 2.701, prohibits the use of "a device required to be licensed by section 301 of the Communications Act' for the purpose of eavesdropping. This regulation, however, exempts use under 'lawful authority' by police officers and the sanctions are limited to loss of license and the imposition of a fine. The memorandum accompanying the regulation stated: 'What constitutes a crime under State law reflecting State policy applicable to radio eavesdropping is, of course, unaffected by our rules.' I d., at 3399.
1
Dissenting opinion of Mr. Justice HARLAN, post, p. 89, at 94.
2
See dissenting opinion of Mr. Justice BLACK, post, p. 70, at 83.
1
Mr. Justice Holmes dissenting in Olmstead v. United States, 277 U.S. 438, 470, 48 S.Ct. 564. 575, 72 L.Ed. 944.
2
Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. Compare Adams v. People of State of New York, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575.
3
I concurred in Mapp because "(t)he close interrelationship between the Fourth and Fifth Amendments," 367 U.S., at 662, 81 S.Ct., at 1695, as they applied to the facts of that case required the exclusion there of the unconstitutionally seized evidence.
1
Hoffa v. United States, 385 U.S. 293, 317, 87 S.Ct. 408, 421, 17 L.Ed.2d 374 (dissenting opinion).
2
Silverman v. United States, 365 U.S. 505, 510, 81 S.Ct. 679, 682, 5 L.Ed.2d 734.
3
Lopez v. United States, 373 U.S. 427, 441, 83 S.Ct. 1381, 1389, 10 L.Ed.2d 462 (opinion concurring in result).
4
Two of petitioner's other contentions are plainly foreclosed by recent opinions of this Court. His contention that eavesdropping unavoidably infringes the rule forbidding the seizure of "mere evidence" is precluded by Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782. His contention that eavesdropping violates his constitutional privilege against self-incrimination is answered by Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394, and Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374.
5
See, e. g., Edwards, Standing to Suppress Unreasonably Seized Evidence, 47 Nw.U.L.Rev. 471; Comment, Standing to Object to an Unreasonable Search and Seizure, 34 U.Chi.L.Rev. 342; Recent Development, Search and Seizure: Admissibility of Illegally Acquired Evidence Against Third Parties, 66 Col.L.Rev. 400.
6
While on this record it cannot be said with entire assurance that the "Berger" mentioned in the Neyer eavesdropped conversation was this petitioner, I think it proper to proceed at this juncture on the basis that such is the case, leaving whatever questions of identity there may be to such state proceedings as, on the premises of this opinion, might subsequently eventuate in the state courts. See n. 8, infra.
7
The only additional reference in the record possibly pertinent to the content of the Neyer hearing is a conclusory assertion by counsel for the State in argument on the motion to suppress that the State had shown its evidence to the issuing judge. The reference is obscure, but its context suggests strongly that counsel meant only that the Steinman affidavits were adequate for purposes of probable cause.
8
Whether N.Y.Civ.Prac. § 4506, as amended to take effect July 1, 1962, some 18 days after the issuance of the Steinman order, would be deemed, under the premises of this opinion, to render inadmissible at Berger's trial the evidence procured under it, is a matter for the state courts to decide. See People v. Cohen, 42 Misc.2d 403, 408, 409, 248 N.Y.S.2d 339, 344, 345; People v. Beshany, 43 Misc.2d 521, 532, 252 N.Y.S.2d 110, 121. Further state proceedings on that score would of course not be foreclosed under a disposition in accordance with this opinion.
1
Recording an innocent conversation is no more a 'seizure' than occurs when the policeman personally overhears conversation while conducting a search with a warrant.
2
Petitioner has not included a transcript of the Neyer recording in the record before this Court. In an oral statement during the hearing on petitioner's motion to suppress eavesdrop evidence, the prosecutor stated:
"In the course of some of these conversations (recorded by the Neyer eavesdrop), we have one-half of a telephone call, of several telephone calls between Mr. Neyer and a person he refers to on the telephone as Mr. Berger; and in the conversation with Mr. Berger Mr. Neyer discusses also the obtaining of a liquor license for the Palladium and mentions the fact that this is going to be a big one." R., at 27.
Petitioner made no argument, and offered no evidence, at the suppression hearing that the alleged Neyer-Berger phone conversation provided the State with evidence that was used to secure the Steinman eavesdrop order.
3
The portion of the Crime Commission's report dealing with wiretapping and eavesdropping is reproduced in Appendix A to this opinion. A more detailed explanation of why most Commission members favored legislation permitting controlled use of electronic surveillance for law enforcement purposes can be found in the Commission's Task Force Report on Organized Crime, cited infra.
4
The Court should draw no support from the Solicitor General's confession of error in recent cases, for they involved surreptitious eavesdropping by federal officers without judicial authorization. Such searches are clearly invalid because they violate the Fourth Amendment's warrant requirements. Silverman v. United States, supra.
5
Letter from the Acting Attorney General to the Speaker of the House of Representatives submitting the Administration's "Right of Privacy Act of 1967" (H.R. 5386), Feb. 8, 1967.
6
"All available data indicate that organized crime flourishes only where it has corrupted local officials. As the scope and variety of organized crime's activities have expanded, its need to involve public officials at every level of local government has grown. And as government regulation expands into more and more areas of private and business activity, the power to corrupt likewise affords the corrupter more control over matters affecting the everyday life of each citizen." Task Force Report, at 6.
| 01
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388 U.S. 395
87 S.Ct. 1801
18 L.Ed.2d 1270
PRIMA PAINT CORPORATION, Petitioner,v.FLOOD & CONKLIN MFG. CO.
No. 343.
Argued March 16, 1967.
Decided June 12, 1967.
Robert P. Herzog, New York City, for petitioner.
Martin A. Coleman, New York City, for respondent.
Gerald Aksen, New York City, for the American Arbitration Assn., as amicus curiae.
Mr. Justice FORTAS delivered the opinion of the Court.
1
This case presents the question whether the federal court or an arbitrator is to resolve a claim of 'fraud in the inducement,' under a contract governed by the United States Arbitration Act of 1925,1 where there is no evidence that the contracting parties intended to withhold that issue from arbitration.
2
The question arises from the following set of facts. On October 7, 1964, respondent, Flood & Conklin Manufacturing Company, a New Jersey corporation, entered into what was styled a 'Consulting Agreement,' with petitioner, Prima Paint Corporation, a Maryland corporation. This agreement followed by less than three weeks the execution of a contract pursuant to which Prima Paint purchased F & C's paint business. The consulting agreement provided that for a six-year period F & C was to furnish advice and consultation 'in connection with the formulae, manufacturing operations, sales and servicing of Prima Trade Sales accounts.' These services were to be performed personally by F & C's chairman, Jerome K. Jelin, 'except in the event of his death or disability.' F & C bound itself for the duration of the contractual period to make no 'Trade Sales' of paint or paint products in its existing sales territory or to current customers. To the consulting agreement were appended lists of F & C customers, whose patronage was to be taken over by Prima Paint. In return for these lists, the covenant not to compete, and the services of Mr. Jelin, Prima Paint agreed to pay F & C certain percentages of its receipts from the listed customers and from all others, such payments not to exceed $225,000 over the life of the agreement. The agreement took into account the possibility that Prima Paint might encounter financial difficulties, including bankruptcy, but no corresponding reference was made to possible financial problems which might be encountered by F & C. The agreement stated that it 'embodies the entire understanding of the parties on the subject matter.' Finally, the parties agreed to a broad arbitration clause, which read in part:
3
'Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in the City of New York, in accordance with the rules then obtaining of the American Arbitration Association * * *.'
4
The first payment by Prima Paint to F & C under the consulting agreement was due on September 1, 1965. None was made on that date. Seventeen days later, Prima Paint did pay the appropriate amount, but into escrow. It notified attorneys for F & C that in various enumerated respects their client had broken both the consulting agreement and the earlier purchase agreement. Prima Paint's principal contention, so far as presently relevant, was that F & C had fraudulently represented that it was solvent and able to perform its contractual obligations, where as it was in fact insolvent and intended to file a petition under Chapter XI of the Bankruptcy Act, 52 Stat. 905, 11 U.S.C. § 701 et seq., shortly after execution of the consulting agreement. Prima Paint noted that such a petition was filed by F & C on October 14, 1964, one week after the contract had been signed. F & C's response, on October 25, was to serve a 'notice of intention to arbitrate.' On November 12, three days before expiration of its time to answer this 'notice,' Prima Paint filed suit in the United States District Court for the Southern District of New York, seeking rescission of the consulting agreement on the basis of the alleged fraudulent inducement.2 The complaint asserted that the federal court had diversity jurisdiction.
5
Contemporaneously with the filing of its complaint, Prima Paint petitioned the District Court for an order enjoining F & C from proceeding with the arbitration. F & C cross-moved to stay the court action pending arbitration. F & C contended that the issue presented—whether there was fraud in the inducement of the consulting agreement—was a question for the arbitrators and not for the District Court. Cross-affidavits were filed on the merits. On behalf of Prima Paint, the charges in the complaint were reiterated. Affiants for F & C attacked the sufficiency of Prima Paint's allegations of fraud, denied that misrepresentations had been made during negotiations, and asserted that Prima Paint had relied exclusively upon delivery of the lists, the promise not to compete, and the availability of Mr. Jelin. They contended that Prima Paint had availed itself of these considerations for nearly a year without claiming 'fraud,' noting that Prima Paint was in no position to claim ignorance of the bankruptcy proceeding since it had participated therein in February of 1965. They added that F & C was revested with its assets in March of 1965.
6
The District Court, 262 F.Supp. 605, granted F & C's motion to stay the action pending arbitration, holding that a charge of fraud in the inducement of a contract containing an arbitration clause as broad as this one was a question for the arbitrators and not for the court. For this proposition it relied on Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402 (C.A.2d Cir. 1959), cert. granted, 362 U.S. 909, 80 S.Ct. 682, 4 L.Ed.2d 618, dismissed under Rule 60, 364 U.S. 801 (1960). The Court of Appeals or the Second Circuit dismissed Prima Paint's appeal, 2 Cir., 360 F.2d 315. It held that the contract in question evidenced a transaction involving interstate commerce; that under the controlling Robert Lawrence Co. decision a claim of fraud in the inducement of the contract generally—as opposed to the arbitration clause itself—is for the arbitrators and not for the courts; and that this rule—one of 'national substantive law'—governs even in the face of a contrary state rule.3 We agree, albeit for somewhat different reasons, and we affirm the decision below.
7
The key statutory provisions are §§ 2, 3, and 4 of the United States Arbitration Act of 1925. Section 2 provides that a written provision for arbitration 'in any maritime transaction or a contract evidencing a transaction involving commerce * * * shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.'4 Section 3 requires a federal court in which suit has been brought 'upon any issue referable to arbitration under an agreement in writing for such arbitration' to stay the court action pending arbitration once it is satisfied that the issue is arbitrable under the agreement. Section 4 provides a federal remedy for a party 'aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration,' and directs the federal court to order arbitration once it is satisfied that an agreement for arbitration has been made and has not been honored.5
8
In Bernhardt v. Polygraphic Co., 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199 (1956), this Court held that the stay provisions of § 3, invoked here by respondent F & C, apply only to the two kinds of contracts specified in §§ 1 and 2 of the Act, namely those in admiralty or evidencing transactions in 'commerce.' Our first question, then, is whether the consulting agreement between F & C and Prima Paint is such a contract. We agree with the Court of Appeals that it is. Prima Paint acquired a New Jersey paint business serving at least 175 wholesale clients in a number of States, and secured F & C's assistance in arranging the transfer of manufacturing and selling operations from New Jersey to Maryland.6 The consulting agreement was inextricably tied to this interstate transfer and to the continuing operations of an interstate manufacturing and wholesaling business. There could not be a clearer case of a contract evidencing a transaction in interstate commerce.7
9
Having determined that the contract in question is within the coverage of the Arbitration Act, we turn to the central issue in this case: whether a claim of fraud in the inducement of the entire contract is to be resolved by the federal court, or whether the matter is to be referred to the arbitrators. The courts of appeals have differed in their approach to this question. The view of the Court of Appeals for the Second Circuit, as expressed in this case and in others,8 is that—except where the parties otherwise intend—arbitration clauses as a matter of federal law are 'separable' from the contracts in which they are embedded, and that where no claim is made that fraud was directed to the arbitration clause itself, a broad arbitration clause will be held to encompass arbitration of the claim that the contract itself was induced by fraud.9 The Court of Appeals for the First Circuit, on the other hand, has taken the view that the question of 'severability' is one of state law, and that where a State regards such a clause as inseparable a claim of fraud in the inducement must be decided by the court. Lummus Co. v. Commonwealth Oil Ref. Co., 280 F.2d 915, 923—924 (C.A.1st Cir.), cert. denied, 364 U.S. 911, 81 S.Ct. 274, 15 L.Ed.2d 225 (1960).10
10
With respect to cases brought in federal court involving maritime contracts or those evidencing transactions in 'commerce,' we think that Congress has provided an explicit answer. That answer is to be found in § 4 of the Act, which provides a remedy to a party seeking to comel compliance with an arbitration agreement. Under § 4, with respect to a matter within the jurisdiction of the federal courts save for the existence of an arbitration clause, the federal court is instructed to order arbitration to proceed once it is satisfied that 'the making of the agreement for arbitration or the failure to comply (with the arbitration agreement) is not in issue.'11 Accordingly, if the claim is fraud in the inducement of the arbitration clause itself an issue which goes to the 'making' of the agreement to arbitrate—the federal court may proceed to adjudicate it.12 But the statutory language does not permit the federal court to consider claims of fraud in the inducement of the contract generally. Section 4 does not expressly relate to situations like the present in which a stay is sought of a federal action in order that arbitration may proceed. But it is inconceivable that Congress intended the rule to differ depending upon which party to the arbitration agreement first invokes the assistance of a federal court. We hold, therefore, that in passing upon a § 3 application for a stay while the parties arbitrate, a federal court may consider only issues relating to the making and performance of the agreement to arbitrate. In so concluding, we not only honor the plain meaning of the statute but also the unmistakably clear congressional purpose that the arbitration procedure, when selected by the parties to a contract, be speedy and not subject to delay and obstruction in the courts.
11
There remains the question whether such a rule is constitutionally permissible. The point is made that, whatever the nature of the contract involved here, this case is in federal court solely by reason of diversity of citizenship, and that since the decision in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), federal courts are bound in diversity cases to follow state rules of decision in matters which are 'substantive' rather than 'procedural,' or where the matter is 'outcome determinative.' Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). The question in this case, however, is not whether Congress may fashion federal substantive rules to govern questions arising in simple diversity cases. See Bernhardt v. Polygraphic Co., supra, 350 U.S. at 202, and concurring opinion, at 208, 76 S.Ct. at 275 and at 279. Rather, the question is whether Congress may prescribe how federal courts are to conduct themselves with respect to subject matter over which Congress plainly has power to legislate. The answer to that can only be in the affirmative. And it is clear beyond dispute that the federal arbitration statute is based upon and confined to the incontestable federal foundations of 'control over interstate commerce and over admiralty.' H.R.Rep.No.96, 68th Cong., 1st Sess., 1 (1924); S.Rep.No.536, 68th Cong., 1st Sess., 3 (1924).13
12
In the present case no claim has been advanced by Prima Paint that F & C fraudulently induced it to enter into the agreement to arbitrate '(a)ny controversy or claim arising out of or relating to this Agreement, or the breach thereof.' This contractual language is easily broad enough to encompass Prima Paint's claim that both execution and acceleration of the consulting agreement itself were procured by fraud. Indeed, no claim is made that Prima Paint ever inteded that 'legal' issues relating to the contract be excluded from arbitration, or that it was not entirely free so to contract. Federal courts are bound to apply rules enacted by Congress with respect to matters—here, a contract involving commerce—over which it has legislative power. The question which Prima Paint requested the District Court to adjudicate preliminarily to allowing arbitration to proceed is one not intended by Congress to delay the granting of a § 3 stay. Accordingly, the decision below dismissing Prima Paint's appeal is affirmed.
13
Affirmed.
Mr. Justice HARLAN:
14
In joining the Court's opinion I desire to note that I would also affirm the judgment below on the basis of Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402 (C.A.2d Cir. 1959), cert. granted, 362 U.S. 909, 80 S.Ct. 682, 4L. Ed.2d 618, dismissed under Rule 60, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37 (1960).
15
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS and Mr. Justice STEWART join, dissenting.
16
The Court here holds that the United States Arbitration Act, 9 U.S.C. §§ 1—14, as a matter of federal substantive law, compels a party to a contract containing a written arbitration provision to carry out his 'arbitration agreement' even though a court might, after a fair trial, hold the entire contract—including the arbitration agreement—void because of fraud in the inducement. The Court holds, what is to me fantastic, that the legal issue of a contract's voidness because of fraud is to be decided by persons designated to arbitrate factual controversies arising out of a valid contract between the parties. And the arbitrators who the Court holds are to adjudicate the legal validity of the contract need not even be lawyers, and in all probability will be nonlawyers, wholly unqualified to decide legal issues, and even if qualified to apply the law, not bound to do so. I am by no means sure that thus forcing a person to forgo his opportunity to try his legal issues in the courts where, unlike the situation in arbitration, he may have a jury trial and right to appeal, is not a denial of due process of law. I am satisfied, however, that Congress did not impose any such procedures in the Arbitration Act. And I am fully satisfied that a reasonable and fair reading of that Act's language and history shows that both Congress and the framers of the Act were at great pains to emphasize that nonlawyers designated to adjust and arbitrate factual controversies arising out of valid contracts would not trespass upon the courts' prerogative to decide the legal question of whether any legal contract exists upon which to base an arbitration.
I.
17
The agreement involved here is a consulting agreement in which Flood & Conklin agreed to perform certain services for and not to compete with Prima Paint. The agreement contained an arbitration clause providing that '(a)ny controversy or claim arising out of or relating to this Agreement * * * shall be settled by arbitration in the City of New York.' F & C, contending that Prima had failed to make a payment under the contract, sent Prima a 'Notice of Intention to Arbitrate' pursuant to the New York Arbitration Act.1 Invoking diversity jurisdiction, Prima brought this action in federal district court to rescind the entire consulting agreement on the ground of fraud. The fraud allegedly consisted of F & C's misrepresentation at the time the contract was made, that it was solvent and able to perform the agreement, while in fact it was completely insolvent. Prima alleged that it would not have made any contract at all with F & C but for this misrepresentation. Prima simply contended that there was never a meeting of minds between the parties. F & C moved to stay Prima's lawsuit for rescission pending arbitration of the fraud issue raised by Prima. The lower courts, relying on the Second Circuit's decision in Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402, cert. granted, 362 U.S. 909, 80 S.Ct. 682, 4 L.Ed.2d 618, dismissed, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37, held that, as a matter of 'national substantive law,' the arbitration clause in the contract is 'separable' from the rest of the contract and that allegations that go to the validity of the contract in general, as opposed to the arbitration clause in particular, are to be decided by the arbitrator, not the court.
18
The Court today affirms this holding for three reasons, none of which is supported by the language or history of the Arbitration Act. First, the Court holds that because the consulting agreement was intended to supplement a separate contract for the interstate transfer of assets, it is itself a 'contract evidencing a transaction involving commerce,' the language used by Congress to describe contracts the Act was designed to cover. But in light of the legislative history which indicates that the Act was to have a limited application to contracts between merchants for the interstate shipment of goods,2 and in light of the express failure of Congress to use language making the Act applicable to all contracts which 'affect commerce,' the statutory language Congress normally uses when it wishes to exercise its full powers over commerce,3 I am not at all certain that the Act was intended to apply to this consulting agreement. Second, the Court holds that the language of § 4 of the Act provides an 'explicit answer' to the question of whether the arbitration clause is 'separable' from the rest of the contract in which it is contained. Section 4 merely provides that the court must order arbitration if it is 'satisfied that the making of the agreement for arbitration * * * is not in issue.' That language, considered alone, far from providing an 'explicit answer,' merely poses the further question of what kind of allegations put the making of the arbitration agreement in issue. Since both the lower courts assumed that but for the federal Act, New York law might apply and that under New York law a general allegation of fraud in the inducement puts into issue the making of the agreement to arbitrate (considered inseparable under New York law from the rest of the contract),4 the Court necessarily holds that federal law determines whether certain allegations put the making of the arbitration agreement in issue. And the Court approves the Second Circuit's fashioning of a federal separability rule which overrides state law to the contrary. The Court thus holds that the Arbitration Act, designed to provide merely a procedural remedy which would not interfere with state substantive law, authorizes federal courts to fashion a federal rule to make arbitration clauses 'separable' and valid. And the Court approves a rule which is not only contrary to state law, but contrary to the intention of the parties and to accepted principles of contract law—a rule which indeed elevates arbitration provisions above all other contractual provisions. As the Court recognizes, that result was clearly not intended by Congress. Finally, the Court summarily disposes of the problem raised by Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, recognized as a serious constitutional problem in Bernhardt v. Polygraphic Co., 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199, by insufficiently supported assertions that it is 'clear beyond dispute' that Congress based the Arbitration Act on its power to regulate commerce and that '(i)f Congress relied at all on' its power to create federal law for diversity cases, such reliance 'was only supplementary.'
II.
19
Let us look briefly at the language of the Arbitration Act itself as Congress passed it. Section 2, the key provision of the Act, provides that '(a) written provision in * * * a contract * * * involving commerce to settle by arbitration a controversy thereafter arising out of such contract * * * shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.' (Emphasis added.) Section 3 provides that '(i)f any suit * * * be brought * * * upon any issue referable to arbitration under an agreement in writing for such arbitration, the court * * * upon being satisfied that the issue involved in such suit * * * is referable to arbitration under such an agreement, shall * * * stay the trial of the action until such arbitration has been had * * *.'5 (Emphasis added.) The language of these sections could not, I think, raise doubts about their meaning except to someone anxious to find doubts. They simply mean this: an arbitration agreement is to be enforced by a federal court unless the court, not the arbitrator, finds grounds 'at law or in equity for the revocation of any contract.' Fraud, of course, is one of the most common grounds for revoking a contract. If the contract was procured by fraud, then, unless the defrauded party elects to affirm it, there is absolutely no contract, nothing to be arbitrated. Sections 2 and 3 of the Act assume the existence of a valid contract. They merely provide for enforcement where such a valid contract exists. These provisions were plainly designed to protect a person against whom arbitration is sought to be enforced from having to submit his legal issues as to validity of the contract to the arbitrator. The legislative history of the Act makes this clear. Senator Walsh of Montana, in hearings on the bill in 1923, observed, 'The court has got to hear and determine whether there is an agreement of arbitration, undoubtedly, and it is open to all defese s, equitable and legal, that would have existed at law * * *.'6 Mr. Piatt, who represented the American Bar Association which drafted and supported the Act, was even more explicit: 'I think this will operate something like an injunction process, except where he would attack it on the ground of fraud.'7 And then Senator Walsh replied: 'If he should attack it on the ground of fraud, to rescind the whole thing. * * * I presume that it merely (is) a question of whether he did make the arbitration agreement or not, * * * and then he would possibly set up that he was misled about the contract and entered into it by mistake * * *.'8 It is evident that Senator Walsh was referring to situations in which the validity of the entire contract is called into question. And Mr. Bernheimer, who represented one of the chambers of commerce in favor of the bill, assured the Senate subcommittee that '(t)he constitutional right to jury trial is adequately safeguarded' by the Act.9 Mr. Cohen, the American Bar Association's draftsman of the bill, assured the members of Congress that the Act would not impair the right to a jury trial, because it deprives a person of that right only when he has voluntarily and validly waived it by agreeing to submit certain disputes to arbitration.10 The court and a jury are to determine both the legal existence and scope of such an agreement. The members of Congress revealed an acute awareness of this problem. On several occasions they expressed opposition to a law which would enforce even a valid arbitration provision contained in a contract between parties of unequal bargaining power. Senator Walsh cited insurance, employment, construction, and shipping contracts as routinely containing arbitration clauses and being offered on a take-it-or-leave-it basis to captive customers or employees.11 He noted that such contracts 'are really not voluntarily (sic) things at all' because 'there is nothing for the man to do except to sign it; and then he surrenders his right to have his case tried by the court * * *.'12 He was emphatically assured by the supporters of the bill that it was not their intention to cover such cases. The significant thing is that Senator Walsh was not thinking in terms of the arbitration provisions being 'separable' parts of such contracts, parts which should be enforced without regard to why the entire contracts in which they were contained were agreed to. The issue for him was not whether an arbitration provision in a contract was made, but why, in the context of the entire contract and the circumstances of the parties, the entire contract was made. That is precisely the issue that a general allegation of fraud in the inducement raises: Prima contended that it would not have executed any contract, including the arbitration clause, if it were not for the fraudulent representations of F & C. Prima's agreement to an arbitration clause in a contract obtained by fraud was no more 'voluntary' than an insured's or employee's agreement to an arbitration clause in a contract obtained by superior bargaining power.
20
Finally, it is clear to me from the bill's sponsors' understanding of the function of arbitration that they never intended that the issue of fraud in the inducement be resolved by arbitration. They recognized two special values of arbitration: (1) the expertise of an arbitrator to decide factual questions in regard to the day-to-day performance of contractual obligations,13 and (2) the speed with which arbitration, as contrasted to litigation, could resolve disputes over performance of contracts and thus mitigate the damages and allow the parties to continue performance under the contracts.14 Arbitration serves neither of these functions where a contract is sought to be rescinded on the ground of fraud. On the one hand, courts have far more expertise in resolving legal issues which go to the validity of a contract than do arbitrators.15 On the other hand, where a party seeks to rescind a contract and his allegation of fraud in the inducement is true, an arbitrator's speedy remedy of this wrong should never result in resumption of performance under the contract. And if the contract were not procured by fraud, the court, under the summary trial procedures provided by the Act, may determine with little delay that arbitration must proceed. The only advantage of submitting the issue of fraud to arbitration is for the arbitrators. Their compensation corresponds to the volume of arbitration they perform. If they determine that a contract is void because of fraud, there is nothing further for them to arbitrate. I think it raises serious questions of due process to submit to an arbitrator an issue which will determine his compensation. Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749.
III.
21
With such statutory language and legislative history, one can well wonder what is the basis for the Court's surprising departure from the Act's clear statement which expressly excepts from arbitration 'such grounds as exist at law or in equity for the revocation of any contract.' Credit for the creation of a rationalization to justify this statutory mutilation apparently must go to the Second Circuit' opinion in Robert Lawrence Co. v. Devonshire Fabrics, Inc., supra. In that decision Judge Medina undertook to resolve the serious constitutional problem which this Court had avoided in Bernhardt by holding the Act inapplicable to a diversity case involving an intrastate contract. That problem was whether the Arbitration Act, passed 13 years prior to Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, could be constitutionally applied in adi versity case even though its application would require the federal court to enforce an agreement to arbitrate which the state court across the street would not enforce. Bernhardt's holding that arbitration is 'outcome determinative,' 350 U.S., at 203, 76 S.Ct., at 276, and its recognition that there would be unconstitutional discrimination if an arbitration agreement were enforceable in federal court but not in the state court, id., at 204, 76 S.Ct., at 276, posed a choice of two alternatives for Judge Medina. If he held that the Arbitration Act rested solely on Congress' power, widely recognized in 1925 but negated in Erie, to prescribe general federal law applicable in diversity cases, he would be compelled to hold the Act unconstitutional as applied to diversity cases under Erie and Bernhardt.16 If he held that the Act rested on Congress' power to enact substantive law governing interstate commerce, then the Erie-Bernhardt problem would be avoided and the application of the Act to diversity cases involving commerce could be saved.
22
The difficulty in choosing between these two alternatives was that neither, quite contrary to the Court's position, was 'clear beyond dispute' upon reference to the Act's legislative history.17 As to the first, it is clear that Congress intended the Act to be applicable in diversity cases involving interstate commerce and maritime contracts,18 and to hold the Act inapplicable in diversity cases would be severely to limit its impact. As to the second alternative, it is clear that Congress in passing the Act relied primarily on its power to create general federal rules to govern federal courts. Over and over again the drafters of the Act assured Congress: 'The statute establishes a procedure in the Federal courts * * *. It rests upon the constitutional provision by which Congress is authorized to establish and control inferior Federal courts. So far as congressional acts relate to the procedure in the Federal courts, they are clearly within the congressional power.'19 And again: 'The primary purpose of the statute is to make enforcible in the Federal courts such agreements for arbitration, and for this purpose Congress rests solely upon its power to prescribe the jurisdiction and duties of the Federal courts.'20 One cannot read the legislative history without concluding that this power, and not Congress' power to legislate in the area of commerce, was the 'principal basis' of the Act.21 Also opposed to the view that Congress intended to create substantive law to govern commerce and maritime transactions are the frequent statements in the legislative history that the Act was not intended to be 'the source of * * * substantive law.'22 As Congressman Graham explained the Act to the House:
23
'It does not involve any new principle of law except to provide a simple method * * * in order to give enforcement * * *. It creates no new legislation, grants no new rights, except a remedy to enforce an agreement in commercial contracts and in admiralty contracts.' 65 Cong.Rec. 1931 (1924). (Emphasis added.)
24
Finally, there are clear indications in the legislative history that the Act was not intended to make arbitration agreements enforceable in state courts23 or to provide an independent federal-question basis for jurisdiction in federal courts apart from diversity jurisdiction.24 The absence of both of these effects—which normally follow from legislation of federal substantive law—seems to militate against the view that Congress was creating a body of federal substantive law.
25
Suffice it to say that Judge Medina chose the alternative of construing the Act to create federal substantive law in order to avoid its emasculation under Erie and Bernhardt. But Judge Medina was not content to stop there with a holding that the Act makes arbitration agreements in a contract involving commerce enforceable in federal court even though the basis of jurisdiction is diversity and state law does not enforce such agreements. The problem in Robert Lawrence, as here, was not whether an arbitration agreement is enforceable, for the New York Arbitration Act, upon which the federal Act was based, enforces an arbitration clause in the same terms as the federal Act. The problem in Robert Lawrence, and here, was rather whether the arbitration clause in a contract induced by fraud is 'separable.' Under New York law, it was not: general allegations of fraud in the inducement would, as a matter of state law, put in issue the making of the arbitration clause. So to avoid this application of state law, Judge Medina went further than holding that the federal Act makes agreements to arbitrate enforceable: he held that the Act creates a 'body of law' that 'encompasses questions of interpretation and construction as well as questions of validity, revocability and enforceability of arbitration agreements affecting interstate commerce or maritime affairs.' 271 F.2d at 409.
26
Thus, 35 years after the passage of the Arbitration Act, the Second Circuit completely rewrote it. Under its new formulation, § 2 now makes arbitration agreements enforceable 'save upon such grounds as exist at federal law for the revocation of any contract.' And under § 4, before enforcing an arbitration agreement, the district court must be satisfied that 'the making of the agreement for arbitration, as a matter of federal law, is not in issue.' And then when Judge Medina turned to the task of 'the formulation of the principles of federal substantive law necessary for this purpose,' 271 F.2d, at 409, he formulated the separability rule which the Court today adopts—not because § 4 provided this rule as an 'explicit answer,' not because he looked to the intention of the parties, but because of his notion that the separability rule would further a 'liberal policy of promoting arbitration.' 271 F.2d, at 410.25
27
Today, without expressly saying so, the Court does precisely what Judge Medina did in Robert Lawrence. It is not content to hold that the Act does all it was intended to do: make arbitration agreements enforceable in federal courts if they are valid and legally existent under state law. The Court holds that the Act gives federal courts the right to fashion federal law, inconsistent with state law, to determine whether an arbitration agreement was made and what it means. Even if Congress intended to create substantive rights by passage of the Act, I am wholly convinced that it did not intend to create such a sweeping body of federal substantive law completely to take away from the States their power to interpret contracts made by their own citizens in their own territory.
28
First. The legislative history is clear that Congress intended no such thing. Congress assumed that arbitration agreements were recognized as valid by state and federal law.26 Courts would give damages for their breach, ut would simply refuse to specifically enforce them. Congress thus had one limited purpose in mind: to provide a party to such an agreement 'a remedy formerly denied him.'27 'Arbitration under the Federal * * * (statute) is simply a new procedural remedy.'28 The Act 'creates no new legislation, grants no new rights, except a remedy to enforce * * *.'29 The drafters of the Act were very explicit:
29
'A Federal statute providing for the enforcement of arbitration agreements does relate solely to procedure of the Federal courts. It is no infringement upon the right of each State to decide for itself what contracts shall or shall not exist under its laws. To be sure whether or not a contract exists is a question of the substantive law of the jurisdiction wherein the contract was made.' Committee on Commerce, Trade & Commercial Law, The United States Arbitration Law and Its Application, 11 A.B.A.J. 153, 154. (Emphasis added.)
30
'Neither is it true that such a statute, declaring arbitration agreements to be valid, is the source of their existence as a matter of substantive law. * * *
31
'So far as the present law declares simply the policy of recognizing and enforcing arbitration agreements in the Federal courts it does not encroach upon the province of the individual States.' Cohen & Dayton, The New Federal Arbitration Law, 12 Va.L.Rev. 265, 276—277.
32
All this indicates that the § 4 inquiry of whether the making of the arbitration agreement is in issue is to be determined by reference to state law, not federal law formulated by judges for the purpose of promoting arbitration.
33
Second. The avowed purpose of the Act was to place arbitration agreements 'upon the same footing as other contracts.'30 The separability rule which the Court applies to an arbitration clause does not result in equality between it and other clauses in the contract. I had always thought that a person who attacks a contract on the ground of fraud and seeks to rescind it has to seek rescission of the whole, not tidbits, and is not given the option of denying the existence of some clauses and affirming the existence of others. Here F & C agreed both to perform consulting services for Prima and not to compete with Prima. Would any court hold that those two agreements were separable, even though Prima in agreeing to pay F & C not to compete did not directly rely on F & C's representations of being solvent? The simple fact is that Prima would not have agreed to the covenant not to compete or to the arbitration clause but for F & C's fraudulent promise that it would be financially able to perform consulting services. As this Court held in United States v. Bethlehem Steel Corp., 315 U.S. 289, 298, 62 S.Ct. 581, 587, 86 L.Ed. 855:
34
'Whether a number of promises constitute one contract (and are non-separable) or more than one is to be determined by inquiring 'whether the parties assented to all the promises as a single whole, so that there would have been no bargain whatever, if any promise or set of promises were struck out."
35
Under this test, all of Prima's promises were part of one, inseparable contract.
36
Third. It is clear that had this identical contract dispute been litigated in New York courts under its arbitration act, Prima would not be required to present its claims of fraud to the arbitrator if the state rule of nonseparability applies. The Court here does not hold today, as did Judge Medina,31 that the body of federal substantive law created by federal judges under the Arbitration Act is required to be applied by state courts. A holding to that effect—which the Court seems to leave up in the air—would flout the intention of the framers of the Act.32 Yet under this Court's opinion today—that the Act supplies not only the remey of enforcement but a body of federal doctrines to determine the validity of an arbitration agreement—failure to make the Act applicable in state courts would give rise to 'forum shopping' and an unconstitutional discrimination that both Erie and Bernhardt were designed to eliminate. These problems are greatly reduced if the Act is limited, as it should be, to its proper scope: the mere enforcement in federal courts of valid arbitration agreements.
IV.
37
The Court's summary treatment of these issues has made it necessary for me to express my views at length. The plain purpose of the Act as written by Congress was this and no more: Congress wanted federal courts to enforce contracts to arbitrate and plainly said so in the Act. But Congress also plainly said that whether a contract containing an arbitration clause can be rescinded on the ground of fraud is to be decided by the courts and not by the arbitrators. Prima here challenged in the courts the validity of its alleged contract with F & C as a whole, not in fragments. If there has never been any valid contract, then there is not now and never has been anything to arbitrate. If Prima's allegations are true, the sum total of what the Court does here is to force Prima to arbitrate a contract which is void and unenforceable before arbitrators who are given the power to make final legal determinations of their own jurisdiction, not even subject to effective review by the highest court in the land. That is not what Congress said Prima must do. It seems to be what the Court thinks would promote the policy of arbitration. I am completely unable to agree to this new version of the Arbitration Act, a version which its own creator in Robert Lawrence practically admitted was judicial legislation. Congress might possibly have enacted such a version into law had it been able to foresee subsequent legal events, but I do not think this Court should do so.
38
I would reverse this case.
1
9 U.S.C. §§ 1—14.
2
Although the letter to F & C's attorneys had alleged breaches of both consulting and purchasing agreements, and the fraudulent inducement of both, the complaint did not refer to the earlier purchase agreement, alleging only that Prima Paint had been 'fraudulently induced to accelerate the execution and closing date of the (consulting) agreement herein, from October 21, 1964 to October 7, 1964. * * *'
3
Whether a party seeking rescission of a contract on the ground of fraudulent inducement may in New York obtain judicial resolution of his claim is not entirely clear. Compare Exercycle Corp. v. Maratta, 9 N.Y.2d 329, 334, 214 N.Y.S.2d 353, 174 N.E.2d 463, 465 (1961), and Amerotron Corp. v. Maxwell Shapiro Woolen Co., 3 A.D.2d 899, 162 N.Y.S.2d 214 (1957), aff'd, 4 N.Y.2d 722, 148 N.E.2d 319 (1958), with Fabrex Corp. v. Winard Sales Co., 23 Misc.2d 26, 200 N.Y.S.2d 278 (1960). In light of our disposition of this case, we need not decide the status of the issue under New York law.
4
The meaning of 'maritime transaction' and 'commerce' is set forth in § 1 of the Act.
5
See, infra, at 403-404.
6
This conclusion is amply supported by an affidavit submitted to the District Court by Prima Paint's own president, which read in part:
'The agreement entered into between the parties on October 7, 1964, contemplated and intended an orderly transfer of the assets of the defendant to the plaintiff, and further contemplated and intended that the defendant would consult, advise, assist and help the plaintiff so as to insure a smooth transition of manufacturing operations to Maryland from New Jersey, together with the sales and servicing of customer accounts and the retention of the said customers.'
The affidavit's references to a 'transfer of the assets' cannot fairly be read to mean only 'expertise and know-how * * * and a covenant not to compete,' as arue d by counsel for petitioner.
7
It is suggested in dissent that, despite the absence of any language in the statute so indicating, we should construe it to apply only to 'contracts between merchants for the interstate shipment of goods.' Not only have we neither the desire nor the warrant so to amend the statute, but we find persuasive and authoritative evidence of a contrary legislative intent. See, e.g., the House Report on this legislation which proclaims that '(t)he control over interstate commerce (one of the bases for the legislation) reaches not only the actual physical interstate shipment of goods but also contracts relating to interstate commerce.' H.R.Rep.No.96, 68th Cong., 1st Sess., 1 (1924). We note, too, that were the dissent's curious narrowing of the statute correct, there would have been no necessity for Congress to have amended the statute to exclude certain kinds of employment contracts. See § 1. In any event, the anomaly urged upon us in dissent is manifested by the present case. It would be remarkable to say that a contract for the purchase of a single can of paint may evidence a transaction in interstate commerce, but that an agreement relating to the facilitation of the purchase of an entire interstate paint business and its re-establishment and operation in another State is not.
8
In addition to Robert Lawrence Co., supra, see In re Kinoshita & Co., 287 F.2d 951 (C.A.2d Cir. 1961). With respect to claims other than fraud in the inducement, the court has followed a similar process of analysis. See, e.g., Metro Industrial Painting Corp. v. Terminal Constr. Co., 287 F.2d 382 (C.A.2d Cir. 1961) (dispute over performance); El Hoss Engineer. & Transport Co. v. American Ind. Oil Co., 289 F.2d 346 (C.A.2d Cir. 1961) (where, however, the court found an intent not to sumbit the issue in question to arbitration).
9
The Court of Appeals has been careful to honor evidence that the parties intended to withhold such issues from the arbitrators and to reserve them for judicial resolution. See El Hoss Engineer. & Transport Co. v. American Ind. Oil Co., supra. We note that categories of contracts otherwise within the Arbitration Act but in which one of the parties characteristically has little bargaining power are expressly excluded from the reach of the Act. See § 1.
10
These cases and others are discussed in a recent Note, Commercial Arbitration in Federal Courts, 20 Vand.L.Rev. 607, 622 625 (1967).
11
Section 4 reads in part: 'The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. * * * If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof.'
12
This position is consistent both with the decision in Moseley v. Electronic & Missile Facilities, 374 U.S. 167, 171, 172, 83 S.Ct. 1815, 1817, 1818, 10 L.Ed.2d 818 (1963), and with the statutory scheme. As the 'saving clause' in § 2 indicates, the purpose of Congress in 1925 was to make arbitration agreements as enforceable as other contracts, but not more so. To immunize an arbitration agreement from judicial challenge on the ground of fraud in the inducement would be to elevate it over other forms of contract—a situation inconsistent with the 'saving clause.'
13
t is true that the Arbitration Act was passed 13 years before this Court's decision in Erie R. Co. v. Tompkins, supra, brought to an end the regime of Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865 (1842), and that at the time of enactment Congress had reason to believe that it still had power to create federal rules to govern questions of 'general law' arising in simple diversity cases—at least, absent any state statute to the contrary. If Congress relied at all on this 'oft-challenged' power, see Erie R. Co., 304 U.S., at 69, 58 S.Ct., at 818, it was only supplementary to the admiralty and commerce powers, which formed the principal bases of the legislation. Indeed, Congressman Graham, the bill's sponsor in the House, told his colleagues that it 'only affects contracts relating to interstate subjects and contracts in admiralty.' 65 Cong.Rec. 1931 (1924). The Senate Report on this legislation similarly indicated that the bill '(relates) to maritime transactions and to contracts in interstate and foreign commerce.' S.Rep.No.536, 68th Cong., 1st Sess., 3 (1924).
Non-congressional sponsors of the legislation agreed. As Mr. Charles L. Bernheimer, chairman of the Arbitration Committee of the New York Chamber of Commerce, told the Senate subcommittee, the proposed legislation 'follows the lines of the New York arbitration law, applying it to the fields wherein there is Federal jurisdiction.
These fields are in admiralty and in foreign and interstate commerce.' Hearing on S. 4213 and S. 4214, before the Subcommittee of the Senate Committee on the Judiciary, 67th Cong., 4th Sess., 2 (1923). In the joint House and Senate hearings, Mr. Bernheimer answered 'Yes; entirely,' to the statement of the chairman, Senator Sterling, that 'What you have in mind is that this proposed legislation relates to contracts arising in interstate commerce.' Joint Hearings on S. 1005 and H.R. 646 before the Subcommittees of the Committees on the Judiciary, 68th Cong., 1st Sess., 7 (1924). Mr. Julius Henry Cohen, draftsman for the American Bar Association of the proposed bill, said the sponsor's goals were: '(F)irst * * * to get a State statute, and then to get a Federal law to cover interstate and Foreign commerce and admiralty, and, third, to get a treaty with Foreign countries.' Joint Hearings, supra, at 16 (emphasis added). See also Joint Hearings, supra, at 27—28 (statement of Mr. Alexander Rose). Mr. Cohen did submit a brief to the Subcommittee urging a jurisdictional base broader than the commerce and admiralty powers, Joint Hearings, supra, at 37—38, but there is no indication in the statute or in the legislative history that this invitation to go beyond those powers was accepted, and his own testimony took a much narrower tack.
1
N.Y.Civ.Prac. § 7503 (1963) provides that once a party is served with a notice of intention to arbitrate, 'unless the party served applies to stay the arbitration within ten days after such service he shall thereafter be precluded from objecting that a valid agreement was not made * * *.'
2
The principal support for the Act came from trade associations dealing in groceries and other perishables and from commercial and mercantile groups in the major trading centers. 50 A.B.A.Rep. 357 (1925). Practically all who testified in support of the bill before the Senate subcommittee in 1923 explained that the bill was designed to cover contracts between people in different States who produced, shipped, bought, or sold commodities. Hearing on S. 4213 and S. 4214 before the Subcommittee of the Senate Committee on the Judiciary, 67th Cong., 4th Sess., 3, 7, 9, 10 (1923). The same views were expressed in the 1924 hearings. When Senator Sterling suggested, 'What you have in mind is that this proposed legislation relates to contracts arising in interstate commerce,' Mr. Bernheimer, a chief exponent of the bill, replied: 'Yes; entirely. The farmer who will sell his carload of potatoes, from Wyoming, to a dealer in the State of New Jersey, for instance.' Joint Hearing o n S. 1005 and H.R. 646 before the Subcommittees of the Committees on the Judiciary, 68th Con., 1st Sess., 7. See also id., at 27.
3
In some Acts Congress uses broad language and defines commerce to include even that which 'affects' commerce. Federal Employers' Liability Act, 35 Stat. 65, § 1, as amended, 45 U.S.C. § 51; National Labor Relations Act, 49 Stat. 450, § 2, as amended, 29 U.S.C. § 152(7). In other instances Congress has chosen more restrictive language. Fair Labor Standards Act of 1938, 52 Stat. 1062, § 6, as amended, 29 U.S.C. § 206. Prior to this case, this Court has always made careful inquiry to assure itself that it is applying a statute with the coverage that Congress intended, so that the meaning in that statute of 'commerce' will be neither expanded nor contracted. The Arbitration Act is an example of carefully limited language. It covers only those contracts 'involving commerce,' and nowhere is there a suggestion that it is meant to extend to contracts 'affecting commerce.' The Act not only uses narrow language, but also is completely without any declaration of some national interest to be served or some nationwide comprehensive scheme of regulation to be created, and this absence suggests that Congress did not intend to exert its full power over commerce.
4
Although F & C requested arbitration pursuant to New York law, n. 1, supra, it is not entirely clear that New York law would apply in absence of the federal Act. And, as the Court points out, it is not entirely clear whether New York courts would consider Prima's promise to arbitrate inseparable from the rest of the contract. But, since Robert Lawrence held and the lower courts here assumed that application of New York law would produce a different result, and since the Court deems the status of state law immaterial to this case, I have assumed throughout this opinion that, in the absence of the Arbitration Act, Prima would have been able to obtain judicial resolution of its fraud allegations under New York law.
5
This section, unlike § 4, is expressly applicable to situations like the present one where a defendant in a case already pending in federal court moves for a stay of the lawsuit. In finding an 'explicit answer' in a provision 'not expressly' applicable, the Court almost completely ignores the language of § 3 and the proviso to § 2, a section which Bernhardt held to 'define the field in which Congress was legislating.' 350 U.S., at 201, 76 S.Ct. at 275.
6
Senate Hearing, supra, at 5.
7
Ibid.
8
Ibid.
9
Senate Hearing, supra, at 2.
10
'The one constitutional provision we have got is that you have a right of trial by jury. But you can waive that. And you can do that in advance. Ah, but the question whether you waive it or not depends on whether that is your signature to the paper, or whether yu authorized that signature, or whether the paper is a valid paper or not, wheter it was delivered properly. So there is a question there which you have not waived the right of trial by jury on.' Joint Hearings, supra, at 17.
It seems quite clear to me that Mr. Cohen was referring to a jury trial of allegations challenging the validity of the entire contract.
11
Senate Hearing, supra, at 9—11. See also Joint Hearings, supra, at 15.
12
Senate Hearing, supra, at 9.
13
'Not all questions arising out of contracts ought to be arbitrated. It is a remedy peculiarly suited to the disposition of the ordinary disputes between merchants as to questions of fact quantity, quality, time of delivery, compliance with terms of payment, excuses for non-performance, and the like. It has a place also in the determination of the simpler questions of law—the questions of law which arise out of these daily relations between merchants as to the passage of title, the existence of warranties, or the questions of law which are complementary to the questions of fact which we have just mentioned.' Cohen & Dayton, The New Federal Arbitration Law, 12 Va.L.Rev. 265, 281 (1926).
14
See e.g., Senate Hearing, supra, at 3.
15
'It (arbitration) is not a proper remedy for * * * questions with which the arbitrators have no particular experience and which are better left to the determination of skilled judges with a background of legal experience and established systems of law.' Cohen & Dayton, supra, at 281.
16
Mr. Justice Frankfurter chose this alternative in his concurring opinion in Bernhardt, 350 U.S., at 208, 76 S.Ct., at 279, and even the Court there suggested that its pre-Erie decision in Shanferoke Coal & Supply Corp. of Delaware v. Westchester Service Corp., 293 U.S. 449, 55 S.Ct. 313, 79 L.Ed. 583, which applied the Act to an interstate contract in a diversity case, might be decided differently under the Bernhardt holding that arbitration is outcome-determinative, 350 U.S., at 202, 76 S.Ct., at 275.
17
For an analysis of these alternatives, see generally, Symposium, Arbitration and the Courts, 58 Nw.U.L.Rev. 466 (1963); Note, 69 Yale L.J. 847 (1960).
18
The House Report accompanying the Act expressly stated: 'The purpose of this bill is to make valid and enforcible agreements for arbitration contained in contracts involving interstate commerce * * * or which may be the subject of litigation in the Federal courts.' H.R.Rep. No. 96, 68th Cong., 1st Sess., 1 (1924) (emphasis added). Mr. Cohen, and a colleague, commenting on the Act after its passage, explained: 'The Federal courts are given jurisdiction to enforce such agreements whenever under the Judicial Code they wold have had jurisdiction * * *. Where the basis of jurisdiction is diversity of citizenship, the dispute must involve $3000 as in suits at law.' Cohen & Dayton, supra, at 267. See, e.g., Committee on Commerce, Trade & Commercial Law, The United States Arbitration Law and Its Application, 11 A.B.A.J. 153, 156; Note, 20 Ill.L.Rev. 111 (1925). The bill, as originally drafted by the American Bar Association, 49 A.B.A.Rep. 51—52 (1924), and introduced in the House, H.R. No. 646, 68th Cong., 1st Sess. (1924), 65 Cong.Rec. 11081—11082 (1924), expressly provided in § 8 '(t)hat if the basis of jurisdiction be diversity of citizenship * * * the district court * * * shall have jurisdiction * * * hereunder notwithstanding the amount in controversy is unascertained * * *.' Though that provision was deleted by the Senate, the omission was not intended substantially to alter the law. 66 Cong.Rec. 3004 (1925).
19
Committee on Commerce, Trade & Commercial Law, supra, 11 A.B.A.J., at 154.
20
Joint Hearings, supra, at 38.
21
Although Mr. Cohen, in a brief filed with Congress, suggested that Congress might rely on its power over commerce, he added that there were 'questions which apparently can be raised in this connection,' id., at 38, and expressly denied that 'the proposed law depends for its validity upon the exercise of the interstate-commerce and admiralty powers of Congress,' id., at 37. And when he testified, he made the point clearer:
'So what we have done * * * (in New York) is that we have * * * made it a part of our judicial machinery. That is what we have done. But it can not be done under our constitutional form of government and cover the great fields of commerce until you gentlemen do it, in the exercise of your power to confer jurisdiction on the Federal courts. The theory on which you do this is that you have the right to tell the Federal courts how to proceed.' Id., at 17.
The legislative history which the Court recites to support its assertion that Congress relied principally on its power over commerce consists mainly of statements that the Act was designed to cover only contracts in commerce, and that is certainly true. But merely because the Act was designed to enforce arbitration agreements only in contracts in commerce, does not mean that Congress was primarily relying on its power over commerce in supplying that remedy of enforceability.
22
Cohen & Dayton, supra, at 276.
23
See, e.g., Cohen & Dayton, supra, at 277; Committee on Commerce, Trade & Commercial Law, supra, at 155, 156. Mr. Rose, representing the Arbitration Society of America, suggested that the Act might have the beneficial effect of encouraging States to enact similar laws. Joint Hearings, supra, at 28, but Mr. Cohen assured Congress:
'Nor can it be said that the Congress of the United States, directing its own courts * * *, would infringe upon the provinces or prerogatives of the States. * * * (T)he question of the enforcement relates to the law of remedies and not to substantive law. The rule must be changed for the jurisdiction in which the agreement is sought to be enforced * * *. There is no disposition therefore by means of the Federal bludgeon to force an individual State into an unwilling submission t a rbitration enforcement.' Id., at 39—40.
24
This seems implicit in § 3's provision for a stay by a 'court in which such suit is pending' and § 4's provision that enforcement may be ordered by 'any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties.'
25
It should be noted that the New York courts apparently do not find any inconsistency between application of a nonseparability rule and that State's policy of enforcing arbitration agreements, a policy embodied in a statute from which the federal Act was copied.
26
S.Rep.No.536, 68th Cong., 1st Sess., 2 (1924); Joint Hearings, supra, at 38.
27
Cohen & Dayton, supra, at 271.
28
Id., at 279.
29
65 Cong.Rec. 1931 (1924).
30
H.R.Rep.No.96, 68th Cong., 1st Sess. (1924).
31
'This is a declaration of national law equally applicable in state or federal courts.' 271 F.2d, at 407.
32
See n. 23, supra.
| 78
|
388 U.S. 447
87 S.Ct. 2095
18 L.Ed.2d 1309
Sanford E. ADAY et al.v.UNITED STATES.
No. 149.
Supreme Court of the United States
June 12, 1967
Stanley Fleishman, for petitioners.
1
Solicitor General Marshall, for the United States.
2
Melvin L. Wulf, Rolland R. O'Hare and Erwin B. Ellmann, for the American Civil Liberties Union and others, as amici curiae.
3
Horace S. Manges, for the American Book Publishers Council, Inc., as amicus curiae.
4
Charles H. Keating, Jr., and James J. Clancy, for Citizens for Decent Literature, Inc., as amicus curiae.
5
On Petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit.
6
PER CURIAM.
7
The petition for a writ of certiorari is granted and the judgment of the United States Court of Appeals for the Sixth Circuit is reversed. Redrup v. State of New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515.
8
THE CHIEF JUSTICE and Mr. Justice BRENNAN would grant the petition, vacate the judgment, and remand in light of A Book Named 'John Cleland's' Memoirs of a Woman of Pleasure v. Attorney General of Com. of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1.
9
Mr. Justice CLARK would grant the petition and affirm.
10
Mr. Justice HARLAN concurs in the reversal on the basis of the reasoning set forth in his opinions in Roth v. United States, 354 U.S. 476, 496, 77 S.Ct. 1304, 1 L.Ed.2d 1498, and Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639.
| 23
|
388 U.S. 452
87 S.Ct. 2104
18 L.Ed.2d 1314
A. QUANTITY OF COPIES OF BOOKS et al.v.KANSAS.
No. 865.
On Petition for Writ of Certiorari to the Supreme Court of Kansas.
Stanley Fleishman, for petitioners.
Robert C. Londerholm, Atty. Gen. of Kansas, for respondent.
June 12, 1967.
PER CURIAM.
1
The petition for a writ of certiorari is granted and the judgment of the Supreme Court of Kansas is reversed. Redrup v. State of New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515.
2
THE CHIEF JUSTICE would grant the petition and set the case for oral argument in light of A Quantity of Copies of Books v. State of Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809.
3
Mr. Justice CLARK would grant the petition and affirm the judgment.
4
Mr. Justice HARLAN adheres to the views expressed in his separate opinions in Roth v. United States, 354 U.S. 476, 496, 77 S.Ct. 1304, 1 L.Ed.2d 1498, and A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Massachusetts, 383 U.S. 413, 455, 86 S.Ct. 975, 16 L.Ed.2d 1, and on the basis of the reasoning set forth therein would affirm.
| 23
|
388 U.S. 293
87 S.Ct. 1967
18 L.Ed.2d 1199
Theodore STOVALL, Petitioner,v.Wilfred DENNO, Warden.
No. 254.
Argued Feb. 16, 1967.
Decided June 12, 1967.
Leon B. Polsky, New York City, for petitioner.
William Cahn, Mineola, N.Y., for respondent.
H. Richard Uviller, New York City, for New York State District Attorney's Ass'n, as amicus curiae.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This federal habeas corpus proceeding attacks collaterally a state criminal conviction for the same alleged constitutional errors in the admission of allegedly tainted identification evidence that were before us on direct review of the convictions involved in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. This case therefore provides a vehicle for deciding the extent to which the rules announced in Wade and Gilbert—requiring the exclusion of identification evidence which is tainted by exhibiting the accused to identifying witnesses before trial in the absence of his counsel—are to be applied retroactively. See Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601; Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453; Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.1 A further question is whether in any event, on the facts of the particular confrontation involved in this case, petitioner was denied due process of law in violation of the Fourteenth Amendment. Cf. Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895.
2
Dr. Paul Behrendt was stabbed to death in the kitchen of his home in Garden City, Long Island, about midnight August 23, 1961. Dr. Behrendt's wife, also a physician, had followed her husband to the kitchen and jumped at the assailant. He knocked her to the floor and stabbed her 11 times. The police found a shirt on the kitchen floor and keys in a pocket which they traced to petitioner. They arrested him on the afternoon of August 24. An arraignment was promptly held but was postponed until petitioner could retain counsel.
3
Mrs. Behrendt was hospitalized for major surgery to save her life. The police, without affording petitioner time to retain counsel, arranged with her surgeon to permit them to bring petitioner to her hospital room about noon of August 25, the day after the surgery. Petitioner was handcuffed to one of five police officers who, with two members of the staff of the District Attorney, brought him to the hospital room. Petitioner was the only Negro in the room. Mrs. Behrendt identified him from her hospital bed after being asked by an officer whether he 'was the man' and after petitioner repeated at the direction of an officer a 'few words for voice identification.' None of the witnesses could recall the words that were used. Mrs. Behrendt and the officers testified at the trial to her identification of the petitioner in the hospital room, and she also made an in-court identification of petitioner in the courtroom.
4
Petitioner was convicted and sentenced to death. The New York Court of Appeals affirmed without opinion. People v. Stovall, 13 N.Y.2d 1094, 246 N.Y.S.2d 410, 196 N.E.2d 65. Petitioner pro se sought federal habeas corpus in the District Court for the Southern District of New York. He claimed that among other constitutional rights allegedly denied him at his trial, the admission of Mrs. Behrendt's identification testimony violated his rights under the Fifth, Sixth, and Fur teenth Amendments because he had been compelled to submit to the hospital room confrontation without the help of counsel and under circumstances which unfairly focused the witness' attention on him as the man believed by the police to be the guilty person. The District Court dismissed the petition after hearing argument on an unrelated claim of an alleged invalid search and seizure. On appeal to the Court of Appeals for the Second Circuit a panel of that court initially reversed the dismissal after reaching the issue of the admissibility of Mrs. Behrendt's identification evidence and holding it inadmissible on the ground that the hospital room identification violated petitioner's constitutional right to the assistance of counsel. The Court of Appeals thereafter heard the case en banc, vacated the panel decision, and affirmed the District Court. 355 F.2d 731. We granted certiorari, 384 U.S. 1000, 86 S.Ct. 1983, 16 L.Ed.2d 1014, and set the case for argument with Wade and Gilbert. We hold that Wade and Gilbert affect only those cases and all future cases which involve confrontations for identification purposes conducted in the absence of counsel after this date. The rulings of Wade and Gilbert are therefore inapplicable in the present case. We think also that on the facts of this case petitioner was not deprived of due process of law in violation of the Fourteenth Amendment. The judgment of the Court of Appeals is, therefore, affirmed.
I.
5
Our recent discussions of the retroactivity of the constitutional rules of criminal procedure make unnecessary any detailed treatment of that question here. Linkletter v. Walker, supra; Tehan v. United States ex rel. Shott, supra; Johnson v. State of New Jersey, supra. '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' * * *.' Johnson, supra, 384 U.S., at 726—727, 86 S.Ct., at 1777. The criteria guiding resolution of the question implicates (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards. '(T)he 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.' Johnson, supra, at 728, 86 S.Ct. at 1778.
6
Wade and Gilbert fashion exclusionary rules to deter law enforcement authorities from exhibiting an accused to witnesses before trial for identification purposes without notice to and in the absence of counsel. A conviction which rests on a mistaken identification is a gross miscarriage of justice. The Wade and Gilbert rules are aimed at minimizing that possibility by preventing the unfairness at the pretrial confrontation that experience has proved can occur and assuring meaningful examination of the identification witness' testimony at trial. Does it follow that the rules should be applied retroactively? We do not think so.
7
It is true that the right to the assistance of counsel has been applied retroactively at stages of the prosecution where denial of the right must almost invariably deny a fair trial, for example, at the trial itself, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, or at some forms of arraignment, Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, or on appeal, Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. 'The basic purpose of a trial is the determination of truth, and it is self-evident that to deny a lawyer's help through the technical intricacies of a criminal trial or to deny a full opportunity to appeal a conviction because the accused is poor is to impede that purpose and to infect a criminal proceeding with the clear danger of convicting the innocent.' Tehan v. United States ex rel. Shott, supra, 382 U.S., at 416, 86 S.Ct., at 465. We have also retroactively applied rules of criminal procedure fashioned to correct serious flaws in the fact-finding process at trial. See for example Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. Although the Wade and Gilbert rules also are aimed at avoiding unfairness at the trial by enhancing the reliability of the fact-finding process in the area of identification evidence, '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.' Johnson v. State of New Jersey, supra, 384 U.S., at 729, 86 S.Ct., at 1778. The extent to which a condemned practice infects the integrity of the truth-determining process at trial is a 'question of probabilities.' Ibid. Such probabilities must in turn be weighed against the prior justified reliance upon the old standards and the impact of retroactivity upon the administration of justice.
8
We have outlined in Wade the dangers and unfairness inherent in confrontations for identification. The possibility of unfairness at that point is great, both because of the manner in which confrontations are frequently conducted, and because of the likelihood that the accused will often be precluded from reconstructing what occurred and thereby from obtaining a full hearing on the identification issue at trial. The presence of counsel will significantly promote fairness at the confrontation and a full hearing at trial on the issue of identification. We have, therefore, concluded that the confrontation is a 'critical stage,' and that counsel is required at all confrontations. It must be recognized, however, that, unlike cases in which counsel is absent at trial or on appeal, it may confidently be assumed that confrontations for identification can be and often have been conducted in the absence of counsel with scrupulous fairness and without prejudice to the accused at trial. Therefore, while we feel that the exclusionary rules set forth in Wade and Gilbert are justified by the need to assure the integrity and reliability of our system of justice, they undoubtedly will affect cases in which no unfairness will be present. Of course, we should also assume there have been injustices in the past which could have been averted by having counsel present at the confrontation for identification, just as there are injustices when counsel is absent at trial. But the certainty and frequency with which we can say in the confrontation cases that no injustice occurred differs greatly enough from the cases involving absence of counsel at trial or on appeal to justify treating the situations as different in kind for the purpose of retroactive application, especially in light of the strong countervailing interests outlined below, and because it remains open to all persons to allege and prove, as Stovall attempts to do in this case, that the confrontation resulted in such unfairness that it infringed his right to due process of law. See Palmer v. Peyton, 359 F.2d 199 (C.A.4th Cir. 1966).
9
The unusual force of the countervailing considerations strengthens our conclusion in favor of prospective application. The law enforcement officials of the Federal Government and of all 50 States have heretofore proceeded on the premise that the Constitution did not require the presence of counsel at pretrial confrontations for identification. Today's rulings were not foreshadowed in our cases; no court announced such a requirement until Wade was decided by the Court of Appeals for the Fifth Circuit, 358 F.2d 557. The overwhelming majority of American courts have always treated the evidence question not as one of admissibility but as one of credibility for the jury. Wall, Eye-Witness Identification in Criminal Cases 38. Law enforcement authorities fairly relied on this virtually unanimous weight of authority, now no longer valid, in conducting pretrial confrontations in the absence of counsel. It is, therefore, very clear that retroactive application of Wade and Gilbert 'would seriously disrupt the administration of our criminal laws.' Johnson v. State of New Jersey, supra, at 731, 86 S.Ct., at 1780. In Tehan v. United States ex rel. Shott, supra, we thought it persuasive against retroactive application of the no-comment rule of Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, that such application would have a serious impact on the six States that allowed comment on an accused's failure to take the stand. We said, 'To require all of those States now to void the conviction of every person who did not testify at his trial would have an impact upon the administration of their criminal law so devastating as to need no elaboration.' 382 U.S., at 419, 86 S.Ct., at 467. That impact is insignificant compared to the impact to be expected from retroactivity of the Wade and Gilbert rules. At the very least, the processing of current criminal calendars would be disrupted while hearings were conducted to determine taint, if any, in identification evidence, and whether in any event the admission of the evidence was harmless error. Doubtless, too, inquiry would be handicapped by the unavailability of witnesses and dim memories. We conclude, therefore, that the Wade and Gilbert rules should not be made retroactive.
10
We also conclude that, for these purposes, no distinction is justified between convictions now final, as in the instant case, and convictions at various stages of trial and direct review. We regard the factors of reliance and burden on the administration of justice as entitled to such overriding significance as to make that distinction unsupportable.2 We recognize that Wade and Gilbert are, therefore, the only victims of pretrial confrontations in the absence of their counsel to have the benefit of the rules established in their cases. That they must be given that benefit is, however, an unavoidable consequence of the necessity that constitutional adjudications not stand as mere dictum. Sound policies of decision-making, rooted in the command of Article III of the Constitution that we resolve issues solely in concrete cases or controversies,3 and in the possible effect upon the incentive of counsel to advance contentions requiring a change in the law,4 militate against denying Wade and Gilbert the benefit of today's decisions. Inequity arguably results from according the benefit of a new rule to the parties in the case in which it is announced but not to other litigants similarly situated in the trial or appellate process who have raised the same issue.5 But we regard the fact that the parties involved are chance beneficiaries as an insignificant cost for adherence to sound principles of decision-making.
II.
11
We turn now to the question whether petitioner, although not entitled to the application of Wade and Gilbert to his case, is entitled to relief on his claim that in any event the confrontation conducted in this case was so unnecessarily suggestive and conducive to irrear able mistaken identification that he was denied due process of law. This is a recognized ground of attack upon a conviction independent of any right to counsel claim. Palmer v. Peyton, 359 F.2d 199 (C.A.4th Cir. 1966). The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.6 However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it, and the record in the present case reveals that the showing of Stovall to Mrs. Behrendt in an immediate hospital confrontation was imperative. The Court of Appeals, en banc, stated, 355 F.2d at 735,
12
'Here was the only person in the world who could possibly exonerate Stovall. Her words, and only her words, 'He is not the man' could have resulted in freedom for Stovall. The hospital was not far distant from the courthouse and jail. No one knew how long Mrs. Behrendt might live. Faced with the responsibility of identifying the attacker, with the need for immediate action and with the knowledge that Mrs. Behrendt could not visit the jail, the police followed the only feasible procedure and took Stovall to the hospital room. Under these circumstances, the usual police station line-up, which Stovall now argues he should have had, was out of the question.'
13
The judgment of the Court of Appeals is affirmed. It is so ordered.
14
Affirmed.
15
Mr. Justice DOUGLAS is of the view that the deprivation of the right to counsel in the setting of this case should be given retroactive effect as it was in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, and in Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814. And see Linkletter v. Walker, 381 U.S. 618, 640, 85 S.Ct. 1731, 1745 (dissenting opinion); Johnson v. State of New Jersey, 384 U.S. 719, 736, 86 S.Ct. 1772, 1782 (dissenting opinion).
16
Mr. Justice FORTAS would reverse and remand for a new trial on the ground that the State's reference at trial to the improper hospital identification violated petitioner's Fourteenth Amendment rights and was prejudicial. He would not reach the question of retroactivity of Wade and Gilbert.
17
Mr. Justice WHITE, whom Mr. Justice HARLAN and Mr. Justice STEWART join.
18
For the reasons stated in my separate opinion in United States v. Wade, 388 U.S. 250, 87 S.Ct. 1944. I perceive no constitutional error in the identification procedure to which the petitioner was subjected. I concur in the result and in that portion of the Court's opinion which limits application of the new Sixth Amendment rule.
19
Mr. Justice BLACK, dissenting.
20
In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, the Court holds that lineup identification testimony should be excluded if it was obtained by exhibiting an accused to identifying witnesses before trial in the absence of his counsel. I concurred in part in those holdings as to out-of-court lineup identification on the ground that the right to counsel is guaranteed in federal courts by the Sixth Amendment and in state courts by the Sixth and Fourteenth Amendments. The first question in this case is whether other defendants, already in prison on such unconstitutional evidence, shall be accorded the benefit of the rule. In this case the Court holds that the petitioner here, convicted on such unconstitutional evidence, must remain in prison, and that besides Wade and Gilbert, who are 'chance beneficiaries,' no one can invoke the rule except defendants exhibited in lineups in the future. I dissent from that holding. It keeps people serving sentences who were on victed through the use of unconstitutional evidence. This is sought to be justified on the ground that retroactive application of the holding in Gilbert and Wade would somehow work a 'burden on the administration of justice' and would not serve the Court's purpose 'to deter law enforcement authorities.' It seems to me that to deny this petitioner and others like him the benefit of the new rule deprives them of a constitutional trial and perpetrates a rank discrimination against them. Once the Court determines what the Constitution says, I do not believe it has the power, by weighing 'countervailing interest,' to legislate a timetable by which the Constitution's provisions shall become effective. For reasons stated in my dissent in Linkletter v. Walker, 381 U.S. 618, 640, 85 S.Ct. 1731, 1743, I would hold that the petitioner here and every other person in jail under convictions based on unconstitutional evidence should be given the advantage of today's newly announced constitutional rules.
21
The Court goes on, however, to hold that even though its new constitutional rule about the Sixth Amendment's right to counsel cannot help this petitioner, he is nevertheless entitled to a consideration of his claim, 'independent of any right to counsel claim,' that his identification by one of the victims of the robbery was made under circumstances so 'unfair' that he was denied 'due process of law' guaranteed by the Fourteenth Amendment. Although the Court finds petitioner's claim without merit, I dissent from its holding that a general claim of 'unfairness' at the lineup is 'open to all persons to allege and prove'. The term 'due process of law' is a direct descendant of Magna Charta's promise of a trial according to the 'law of the land' as it has been established by the lawmaking agency, constitutional or legislative. No one has ever been able to point to a word in our constitutional history that shows the Framers ever intended that the Due Process Clause of the Fifth or Fourteenth Amendment was designed to mean any more than that defendants charged with crimes should be entitled to a trial governed by the laws, constitutional and statutory, that are in existence at the time of the commission of the crime and the time of the trial. The concept of due process under which the Court purports to decide this question, however, is that this Court looks at 'the totality of the circumstances' of a particular case to determine in its own judgment whether they comport with the Court's notions of decency, fairness, and fundamental justice, and, if so, declares they comport with the Constitution, and, if not, declares they are forbidden by the Constitution. See, e.g., Rochin v. People of State of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183. Such a constitutional formula substitutes this Court's judgment of what is right for what the Constitution declares shall be the supreme law of the land. This due process notion proceeds as though our written Constitution, designed to grant limited powers to government, had neutralized its limitations by using the Due Process Clause to authorize this Court to override its written limiting language by substituting the Court's view of what powers the Framers should have granted government. Once again I dissent from any such view of the Constitution. Where accepted, its result is to make this Court not a Constitution-interpreter, but a day-to-day Constitution-maker.
22
But even if the Due Process Clause could possibly be construed as giving such latitudinarian powers to the Court, I would still think the Court goes too far in holding that the courts can look at the particular circumstances or each identification lineup to determine at large whether they are too 'suggestive and conducive to irreparable mistaken identification' to be constitutional. That result is to freeze as constitutional or as unconstitutional the circumstances of each case, giving the States and the Federal Government no permanent constitutional standards. t also transfers to this Court power to determine what the Constitution should say, instead of performance of its undoubted constitutional power to determine what the Constitution does say. And the result in this particular case is to put into a constitutional mould a rule of evidence which I think is plainly within the constitutional powers of the States in creating and enforcing their own criminal laws. I must say with all deference that for this Court to hold that the Due Process Clause gives it power to bar state introduction of lineup testimony on its notion of fairness, not because it violates some specific constitutional prohibition, is an arbitrary, wholly capricious action.
23
I would not affirm this case but would reverse and remand for consideration of whether the out-of-court lineup identification of petitioner was, under Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, harmless error. If it was not, petitioner is entitled to a new trial because of a denial of the right to counsel guaranteed by the Sixth Amendment which the Fourteenth Amendment makes obligatory on the States.
1
Although respondent did not raise the bar of retroactivity, the Attorney General of the State of New York, as amicus curiae, extensively briefed the issue of retroactivity and petitioner, in his reply brief, addressed himself to this question. Compare Mapp v. Ohio, 367 U.S. 643, 646, n. 3, 81 S.Ct. 1684, 1686, 6 L.Ed.2d 1081.
2
Schaefer, The Control of 'Sunbursts': Techniques of Prospective Overruling, 22 Record of N.Y.C.B.A. 394, 408—411 (1967).
3
Note, Prospective Overruling and Retroactive Application in the Federal Courts, 71 Yale L.J. 907, 930—933 (1962).
4
See Mishkin, Foreward, The Supreme Court 1964 Term, 79 Harv.L.Rev. 56, 60—61 (1965).
5
See Mishkin, n. 4, supra, at 61, n. 23; Bender, The Retroactive Effect of an Overruling Constitutional Decision: Mapp v. Ohio, 110 U.Pa.L.Rev. 650, 675—678 (1962); Schwartz, Retroactivity, Reliability, and Due Process: A Reply to Professor Mishkin, 33 U.Chi.L.Rev. 719, 764 (1966).
6
See Wall, Eye-Witness Identification in Criminal Cases 26 40; Paul, Identification of Accused Persons, 12 Austl.L.J. 42, 44 (1938); Williams & Hammelmann, Identification Parades, Part I, (1963) Crim.L.Rev. 479, 480—481; Frankfurter, The Case of Sacco and Vanzetti 31—32.
| 01
|
388 U.S. 26
87 S.Ct. 1792
18 L.Ed.2d 1027
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.GREAT DANE TRAILERS, INC.
No. 781.
Argued April 19, 1967.
Decided June 12, 1967.
Arnold Ordman, Washington, D.C., for petitioner.
O.R.T. Bowden, Jacksonville, for respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
The issue here is whether, in the absence of proof of an antiunion motivation, an employer may be held to have violated §§ 8(a)(3) and (1) of the National Labor Relations Act1 when it refused to pay striking employees vacation benefits accrued under a terminated collective bargaining agreement while it announced an intention to pay such benefits to striker replacements, returning strikers, and nonstrikers who had been at work on a certain date during the strike.
2
The respondent company and the union2 entered into a collective bargaining agreement which was effective by its terms until March 31, 1963. The agreement contained a commitment by the company to pay vacation benefits to employees who met certain enumerated qualifications.3 In essence, the company agreed to pay specified vacation benefits to employees who, during the preceding year, had worked at least 1,525 hours. It was also provided that, in the case of a 'lay-off, termination or quitting,' employees who had served more than 60 days during the year would be entitled to pro rata shares of their vacation benefits. Benefits were to be paid on the Friday nearest July 1 of each year.
3
'(b) To qualify for the said vacation, it is necessary that an employee shall have worked a total of fifteen hundred twentyfive (1525) hours in the said year; any time lost, however, because of an industrial accident while employed by this Company to count as part of the qualifying time.
4
'(d) Employees who have served less than sixty (60) days on the next July 1 after date of employment will receive no vacation pay on that date but on the following July 1 will receive the vacation due in accordance with the above qualifying requirements, plus extra amount due in accordance with hours worked.
5
'(e) In case of lay-off termination or quitting, an employee who has served more than sixty (60) days shall receive pro rata share of vacation.
6
'(f) All vacation pay shall be paid on Friday nearest July 1st, except as outlined in paragraph (d).'
7
The agreement was temporarily extended beyond its termination date, but on April 30, 1963, the union gave the required 15 days' notice of intention to strike over issues which remained unsettled at the bargaining table. Accordingly, on May 16, 1963, approximately 350 of the company's 400 employees commenced a strike which lasted until December 26, 1963. The company continued to operate during the strike, using nonstrikers, persons hired as replacements for strikers, and some original strikers who had later abandoned the strike and returned to work.4 On July 12, 1963, a number of the strikers demanded their accrued vacation pay from the company. The company rejected this demand, basing its response on the assertion that all contractual obligations had been terminated by the strike and, therefore, none of the company's employees had a right to vacation pay. Shortly thereafter, however, the company announced that it would grant vacation pay—in the amounts and subject to the conditions set out in the expired agreement—to all employees who had reported for work on July 1, 1963. The company denied that these payments were founded on the agreement and stated that they merely reflected a new 'policy' which had been unilaterally adopted.
8
The refusal to pay vacation benefits to strikers, coupled with the payments to nonstrikers, formed the bases of an unfair labor practice complaint filed with the Board while the strike was still in progess. Violations of §§ 8(a)(3) and (1) were charged. A hearing was held before a trial examiner who found that the company's action in regard to vacation pay constituted a discrimination in terms and conditions of employment which would discourage union membership, as well as an unlawful interference with protected activity. He held that the company had violated §§ 8(a)(3) and (1) and recommended that it be ordered to cease and desist from its unfair labor practice and to pay the accrued vacation benefits to strikers. The Board, after veviewing the record, adopted the Trial Examiner's conclusions and remedy.5
9
A petition for enforcement of the order was filed in the Court of Appeals for the Fifth Circuit. That court first dealt with the company's contention that the Board had lacked jurisdiction and that the union should have been relegated either to the bargaining table or to a lawsuit under § 301 of the Act,6 since the basic question was one of contract interpretation and application. It noted that the company's announced policy relating to vacation pay clearly concerned a 'term or condition of employment'; since it was alleged that the company had discriminated between striking and nonstriking employees in regard to that term or condition of employment, the complaint stated 'an unfair labor practice charge in simplest terms' and the Board had properly exercised its jurisdiction.7 Reviewing the substantive aspects of the Board's decision next, the Court of Appeals held that, although discrimination between striking and nonstriking employees had been proved, the Board's conclusion that the company had committed an unfair labor practice was not well-founded inasmuch as there had been to affirmative showing of an unlawful motivation to discourage union membership or to interfere with the exercise of protected rights. Despite the fact that the company itself had not introduced evidence of a legitimate business purpose underlying its discriminatory action, the Court of Appeals speculated that it might have been motivated by a desire '(1) to reduce expenses; (2) to encourage longer tenure among present employees; or (3) to discourage early leaves immediately before vacation periods.' Believing that the possibility of the existence of such motives was sufficient to overcome the inference of an improper motive which flowed from the conduct itself, the court denied enforcement of the order. 363 F.2d 130 (1966). We granted certiorari to determine whether the treatment of the motivation issue by the Court of Appeals was consistent with recent decisions of this Court. 385 U.S. 1000, 87 S.Ct. 716, 17 L.Ed.2d 541 (1967).
10
The unfair labor practice charged here is grounded primarily in § 8(a)(3) which requires specifically that the Board find a discrimination and a resulting discouragement of union membership. American Ship Building Co. v. National Labor Relations Board, 380 U.S. 300, 311, 85 S.Ct. 955, 963, 13 L.Ed.2d 855 (1965). There is little question but that the result of the company's refusal to pay vacation benefits to strikers was discrimination in its simplest form. Comar e Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945), with Local 357, Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. National Labor Relations Board, 365 U.S. 667, 81 S.Ct. 835, 6 L.Ed.2d 11 (1961). Some employees who met the conditions specified in the expired collective bargaining agreement were paid accrued vacation benefits in the amounts set forth in that agreement, while other employees8 who also met the conditions but who had engaged in protected concerted activity were denied such benefits. Similarly, there can be no doubt but that the discrimination was capable of discouraging membership in a labor organization within the meaning of the statute. Discouraging membership in a labor organization 'includes discouraging participation in concerted activities * * * such as a legitimate strike.' National Labor Relations Board v. Erie Resistor Corp., 373 U.S. 221, 233, 83 S.Ct. 1139, 1148, 10 L.Ed.2d 308 (1963). The act of paying accrued benefits to one group of employees while announcing the extinction of the same benefits for another group of employees who are distinguishable only by their participation in protected concerted activity surely may have a discouraging effect on either present or future concerted activity.
11
But inquiry under § 8(a)(3) does not usually stop at this point. The statutory language 'discrimination * * * to * * * discourage' means that the finding of a violation normally turns on whether the discriminatory conduct was motivated by an antiunion purpose. American Ship Building Co. v. National Labor Relations Board, 380 U.S. 300, 85 S.Ct. 955 (1965). It was upon the motivation element that the Court of Appeals based its decision not to grant enforcement, and it is to that element which we now turn. In three recent opinions we considered employer motivation in the context of asserted § 8(a)(3) violations. American Ship Building Co. v. National Labor Relations Board, supra; National Labor Relations Board v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965); and National Labor Relations Board v. Erie Resistor Corp., supra. We noted in Erie Resistor, supra, 373 U.S. at 227, 83 S.Ct. at 1144, that proof of an antiunion motivation may make unlawful certain employer conduct which would in other circumstances be lawful. Some conduct, however, is so 'inherently destructive of employee interests' that it may be deemed proscribed without need for proof of an underlying improper motive. National Labor Relations Board v. Brown, supra, 380 U.S., at 287, 85 S.Ct. at 986, American Ship Building Co. v. National Labor Relations Board, supra, 380 U.S. at 311, 85 S.Ct. at 963. That is, some conduct carries with it 'unavoidable consequences which the employer not only foresaw but which he must have intended' and thus bears 'its own indicia of intent.' National Labor Relations Board v. Erie Resistor Corp., supra, at 228, 231, 83 S.Ct. at 1145—1147. If the conduct in question falls within this 'inherently destructive' category, the employer has the burden of explaining away, justifying or characterizing 'his actions as something different than they appear on their face,' and if he fails, 'an unfair labor practice charge is made out.' Id., at 228, 83 S.Ct. at 1145. And even if the employer does come forward with counter explanations for his conduct in this situation, the Board may nevertheless draw an inference of improper motive from the conduct itself and exercise its duty to strike the proper balance between the asserted business justifications and the invasion of employee rights in light of the Act and is policy. Id., at 229, 83 S.Ct. at 1145. On the other hand, when 'the resulting harm to employee rights is * * * comparatively slight, and a substantial and legitimate business end is served, the employers' conduct is prima facie lawful,' and an affirmative showing of improper motivation must be made. National Labor Relations Board v. Brown, supra, 380 U.S. at 289, 85 S.Ct. at 987; American Ship Building Co. v. National Labor Relations Board, supra, 380 U.S. at 311—313, 85 S.Ct. at 963—964.
12
From this review of our recent decisions, several principles of controlling importance here can be distilled. First, if it can reasonably be concluded that the employer's discriminatory conduct was 'inherently destructive' of important employee rights, no proof of an antiunion motivation is needed and the Board can find an unfair labor practice even if the employer introduces evidence that the conduct was motivated by business considerations. Second, if the adverse effect of the discriminatory conduct on employee rights is 'comparatively slight,' an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substantial business justifications for the conduct. Thus, in either situation, once it has been proved that the employer engaged in discriminatory conduct which could have adversely affected employee rights to some extent, the burden is upon the employer to establish that he was motivated by legitimate objectives since proof of motivation is most accessible to him.
13
Applying the principles to this case then, it is not necessary for us to decide the degree to which the challenged conduct might have affected employee rights. As the Court of Appeals correctly noted, the company came forward with no evidence of legitimate motives for its discriminatory conduct. 363 F.2d at 134. The company simply did not meet the burden of proof, and the Court of Appeals misconstrued the function of judicial review when it proceeded nonetheless to speculate upon what might have motivated the company. Since discriminatory conduct carrying a potential for adverse effect upon employee rights was proved and no evidence of a proper motivation appeared in the record, the Board's conclusions were supported by substantial evidence, Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), and should have been sustained.
14
The judgment of the Court of Appeals is reversed and the case is remanded with directions to enforce the Board's order. It is so ordered.
15
Reversed and remanded with directions.
16
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, dissenting.
17
Because I think that the Court puts forth a premise which misinterprets the recent decision in NLRB v. C & C Plywood Corp., 385 U.S. 421, 87 S.Ct. 559, and has proposed a determining rule based on a distillation of prior opinions which is, in my view, substantially inaccurate, I am constrained to express my dissent from its opinion. I believe that the Fifth Circuit correctly analyzed the problem, and that its decision should be affirmed.
18
The Court begins by stating that vacation benefits had 'accrued' under the contract, and implies that striking employees had a contractual right to such benefits which was arbitrarily disregarded by Great Dane in order to punish those employees for engaging in protected activity. Were these the properly established facts of the case, I would have little difficulty in concurring in the result reached by the majority. Employer action which undercuts rights protected by § 7 of the National Labor Relations Act, as amended, 61 Stat. 140, and has no inferable, legitimate business purpose has been held a violation of §§ 8(a)(3) and (1). Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 65 S.Ct. 982. But the contract dispute is not so frivolous as to be determined without examination,1 and the issue framed by the Court is not prpe rly before us. Moreover, contrary to the Court's assertion, neither the Board nor the lower court limited itself to considering this issue, and both recognized a limitation on the Board's contract interpretation powers in light of § 301(a) of the Labor Management Relations Act, 1947.2
19
The Board disclaimed 'interpreting the contract for the parties' and held only that 'strikers must be treated uniformly with nonstrikers with respect to whatever benefits accrue to the latter from the existence of the employment relationship.' It explained that its order would merely force the employer to use the same vacation pay criteria for all employees and only prevent Great Dane from using the requirement that a recipient be at work as of July 1, 1963. The Court of Appeals considered the 'term or condition of employment' at issue to be the employer's unilaterally declared vacation 'policy.' It explicitly disregarded 'the question of whether the Board would have acted improperly * * * to decide whether it was an unfair labor practice to withhold benefits due under the contract * * *.' 363 F.2d 130, 133. (Emphasis in original.) I think the Board and the Court of Appeals were correct in disregarding the contract issue. In NLRB v. C & C Plywood Corp., supra, which the Court says upholds jurisdiction to consider the contract, we faced a situation in which an employer had taken a unilateral action with respect to wages which was a prima facie violation of § 8(a)(3) and was attempting to justify that action by contractual privilege. The Court held that the interposition of a contractual defense could not deprive the Board of jurisdiction to 'enforce a statutory right' where the Board had 'not construed a labor agreement to determine the extent of the contractual rights which were given the union by the employer.' Id., at 428, 87 S.Ct. at 564. Also the agreement involved in that case did not contain an arbitration clause and thus the strong policy favoring arbitration was not infringed by the Board's action. Id., at 426, 87 S.Ct. at 562. Here the Court's statement of the issue would imply that the Board may consider an unfair labor practice founded solely on breach of a contractual duty, and the labor agreement seems to invoke the remedy of arbitration.3 In these circumstances, I think the only issue properly before the Court is whether the employer's unilaterally declared vacation policy, considered on its own bottom, constitutes a violation of § 8(a)(3) absent a showing of improper motivation by evidence independent of the policy itself.
20
The Court attempts to resolve this issue as well as the contractual one. In the Court's view an employer must 'come forward with evidence of legitimate and substantial business justifications' whenever any of his actions are challenged in a § 8(a)(3) proceeding. Prior to today's decision, § 8(a)(3) violations could be grouped into two general categories: those based on actions serving no legitimate business purposes or actions inherently severely destructive of employee rights wher i mproper motive could be inferred from the actions themselves, and, in the latter instance, even a legitimate business purpose could be held by the Board not to justify the employer's conduct, National Labor Relations Board v. Erie Resistor Corp., 373 U.S. 221, 83 S.Ct. 1139, and those not based on actions 'demonstrably so destructive of employee rights and so devoid of significant service to any legitimate business end,' where independent evidence evincing the employer's antiunion animus would be required to find a violation. National Labor Relations Board v. Brown, 380 U.S. 278, 286, 85 S.Ct. 980, 985. The Court is unable to conclude that the employer's conduct in this case falls into the first category, and has proposed its rule as an added gloss on the second whose contours were fixed only two years ago in Brown.
21
Under today's formulation, the Board is required to find independent evidence of the employer's antiunion motive only when the employer has overcome the presumption of unlawful motive which the Court raises. This alteration of the burden in § 8(a)(3) cases may either be a rule of convenience important to the resolution of this case alone or may, more unfortunately, portend an important shift in the manner of deciding employer unfair labor practice cases under § 8(a)(3). In either event, I believe it is unwise.
22
The 'legitimate and substantial business justifications' test may be interpreted as requiring only that the employer come forward with a nonfrivolous business purpose in order to make operative the usual requirement of proof of antiunion motive. If this is the result of today's decision, then the Court has merely penalized Great Dane for not anticipating this requirement when arguing before the Board. Such a penalty seems particularly unfair in view of the clarity of our recent pronouncements that 'the Board must find from evidence independent of the mere conduct involved that the conduct was primarily motivated by an antiunion animus,' National Labor Relations Board v. Brown, 380 U.S., at 288, 85 S.Ct. at 986, and that 'the Board must find that the employer acted for a proscribed purpose.' American Ship Building Co. v. National Labor Relations Board, 380 U.S. 300, 313, 85 S.Ct. 955, 965.
23
On the other hand, the use of the word 'substantial' in the burden of proof formulation may give the Board a power which it formerly had only in § 8(a)(3) cases like Erie Resistor, supra. The Board may seize upon that term to evaluate the merits of the employer's business purposes and weigh them against the harm that befalls the union's interests as a result of the employer's action. If this is the Court's meaning, it may well impinge upon the accepted principle that 'the right to bargain collectively does not entail any 'right' to insist on one's position free from economic disadvantage.' American Ship Building Co. v. National Labor Relations Board, supra, at 309, 85 S.Ct. at 962. Employers have always been free to take reasonable measures which discourage a strike by pressuring the economic interests of employees, including the extreme measure of hiring permanent replacements, without having the Board inquire into the 'substantiality' of their business justifications. National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381. If the Court means to change this rule, though I assume it does not, it surely should not do so without argument of the point by the parties and without careful discussion.
24
In my opinion, the Court of Appeals correctly held that this case fell into the category in which independent evidence of antiunion motive is required to sustain a violation. As was pointed out in the Court of Appeals opinion, a number of legitimate motives for the terms of the vacation policy could be inferred, 363 F.2d., at 134 and an unlawful motive is not the sole inference to be drawn from the conduct. Nor is the employer's conduct here, like the super-seniority plan in Erie Resistor, supra, such that an unlawful motive can be found by 'an application of the common law rule that a man is held to intend the foreseeable consequences of his conduct.' Radio Officers, Union of Comm. Telegraphers Union, AFL v. National Labor Relations Board, 347 U.S. 17, 45, 74 S.Ct. 323, 338, 98 L.Ed. 455. The differences between the facts of this case and those of Erie Resistor, supra, are, as the parties recognize, so significant as to preclude analogy. Unlike the granting of superseniority, the vacation pay policy here had no potential long-term impact on the bargaining situation. The vacation policy was not employed as a weapon against the strike as was the superseniority plan. Notice of the date of required presence for vacation pay eligibility was not given until after the date had passed. The record shows clearly that Great Dane had no need to employ any such policy to combat the strike, since it had successfully replaced almost all of the striking employees.4 The Trial Examiner rejected all union claims that particular actions by Great Dane demonstrated antiunion animus. In these circumstances, the Court of Appeals correctly found no substantial evidence of a violation of § 8(a)(3).
25
Plainly the Court is concerned lest the strikers in this case be denied their 'rights' under the collective bargaining agreement that expired at the commencement of the strike. Equally plainly, a suit under § 301 is the proper manner by which to secure these 'rights,' if they indeed exist. I think it inappropriate to becloud sound prior interpretations of § 8(a)(3) simply to reach what seems a sympathetic result.
1
National Labor Relations Act, as amended, §§ 8(a)(3) and (1), 61 Stat. 140—141, 29 U.S.C. §§ 158(a)(3) and (1).
2
Local 26, Interat ional Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL—CIO.
3
Article VIII of the collective bargaining agreement was entitled 'Vacations.' It read, in pertinent part:
'(a) Each qualified employee covered by this agreement shall be entitled after one (1) year of continuous employment, at a time agreeable to the Company, to a vacation of seven (7) consecutive days with pay for forth (40) hours at the rate or paying existing for such employee at the time of the beginning of his vacation. Each employee, after five (5) years' continuous service, shall be entitled to a vacation of fourteen (14) consecutive days, with pay for eighty (80) hours. Any employee entitled to a vacation with pay may waive the right, if his services are needed by the employer, to such vacation during the period of this agreement, and in such cases shall be entitled to receive in lieu thereof, at the time he becomes entitled to the vacation, the amount of vacation pay such employee would otherwise have received over and above the wages received for work performed during the vacation period.
4
All strikers had been replaced by October 8, 1963. After their replacement, some strikers were rehired by the company, apparently as new employees.
5
The complaint also charged independent violations of § 8(a)(1). These were rejected by the Trial Examiner and by the Board.
6
§ 301, Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S.C. § 185.
7
In this Court the company apparently abandoned the argument under § 301. In any event, we agree with the Court of Appeals that the complaint, alleging as it did a discrimination in regard to a term or condition of employment, stated an unfair labor practice charge. The fact that the conduct complained of might also have supported an action under § 301 did not deprive the Board of jurisdiction. NLRB v. C. & C Plywood Corp., 385 U.S. 421, 87 S.Ct. 559, 17 L.Ed.2d 486 (1967); Mastro Plastics Corp. v. National Labor Relations Board, 350 U.S. 270, 76 S.Ct. 349, 100 L.Ed. 309 (1956). Cf. Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct 267, 9 L.Ed.2d 246 (1962). This, of course, is not to say that every breach of a collective bargaining agreement may be the subject of an unfair labor practice proceeding. But when the elements of an unfair labor practice are present in a breach of contract, the injured party is not automatically deprived by § 301 of his right to proceed before the Board where his remedy may be speedier and less expensive than a lawsuit. NLRB v. C & C Plywood Corp., supra, 385 U.S. at 429—430, 87 S.Ct. at 564, 565.
8
National Labor Relations Act, as amended, § 2(3), 61 Stat. 137, 29 U.S.C. § 152(3), declares:
'The term 'employee' * * * shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute * * * and who has not obtained any other regular and substantially equivalent employment * * *.'
1
The union elected to terminate the contract raising the question whether any right to vacation pay survived the termination. Also the contract provided for vacation pay when the employee was not actually granted a vacation, and the initial choice lay with the employer. Thus under the contract the employer was not obligated to grant two weeks' additional pay, but could choose to grant vacation instead and lower the total cash outlay. Termination precluded exercise of that choice.
2
61 Stat. 156, 29 U.S.C. § 185(a). This position is supported by the legislative history discussed in NLRB v. C & C Plywood Corp., 385 U.S. 421, at 427, 87 S.Ct. 559, at 563.
3
Article XIV of the contract provided that arbitration would not be required after one party had given notice of intent to terminate or modify the contract. This disclaimer clearly implies that arbitration would be required in the resolution of disputes arising under the contract.
4
By July 1, 1963, almost 75% of the striking employees had been replaced. By August 1, 1963, when the dispute over vacation pay was coming to a head almost 90% had been replaced. All strikers had been replaced by October 8, 1963.
| 67
|
388 U.S. 448
87 S.Ct. 2096
18 L.Ed.2d 1310
CORINTH PUBLICATIONS, INC.v.James P. WESBERRY et al.
No. 227.
Supreme Court of the United States
June 12, 1967
Stanley Fleishman, for petitioner.
Arthur K. Bolton, Atty. Gen. of Georgia, and G. Ernest Tidwell, Executive Asst. Atty. Gen., for respondents.
On Petition for Writ of Certiorari to the Supreme Court of Georgia.
PER CURIAM.
1
The petition for a writ of certiorari is granted and the judgment of the Supreme Court of Georgia is reversed.
2
THE CHIEF JUSTICE would grant the petition and set the case for oral argument.
3
Mr. Justice CLARK would grant the petition and affirm.
4
Mr. Justice HARLAN adheres to the views expressed in his separate opinions in Roth v. United States, 354 U.S. 476, 496, 77 S.Ct. 1304, 1 L.Ed.2d 1498, and A Book Named 'John Cleland's' Memoirs of a Woman of Pleasure v. Attorney General of Com. of Massachusetts, 383 U.S. 413, 455, 86 S.Ct. 975, 16 L.Ed.2d 1, and on the basis of the reasoning set forth therein would affirm.
| 23
|
389 U.S. 20
88 S.Ct. 3
19 L.Ed.2d 20
Kenneth WOODv.UNITED STATES.
No. 27, Misc.
Oct. 16, 1967.
Solicitor General Marshall, Assistant Attorney General
Vinson, Beatrice Rosenberg and Robert G. Maysack, for the United States.
PER CURIAM.
1
Petitioner was found guilty by the United States District Court for the Northern District of Georgia of refusing to report for civilian employment, in violation of § 12 of the Universal Military Training and Service Act, 62 Stat. 622, 50 U.S.C. App. § 462. Before trial he filed an affidavit with the court requesting assigned counsel pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A. The court considered the affidavit, questioned petitioner and disapproved the request. The Court of Appeals for the Fifth Circuit granted leave to appeal in forma pauperis, assigned counsel to assist petitioner in his appeal and affirmed the conviction. Petitioner seeks a writ of certiorari.
2
Before this Court the Solicitor General has conceded that the record does not convincingly show that there was adequate inquiry into the question of petitioner's financial ability to retain counsel, in that 'the trial court should have explored the possibility that petitioner could afford only partial payment for the services of trial counsel and that counsel be appointed on that basis, as the Criminal Justice Act permits (see 18 U.S.C. § 3006(A)(c) and (f)).' The Solicitor General urges, however, that there is no basis for believing that petitioner suffered prejudice from the District Court's error, an argument we find unpersuasive.
3
The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted, the judgment is vacated and the case is remanded to the Court of Appeals for the Fifth Circuit for reconsideration in light of the Solicitor General's Memorandum and the relevant criteria of the Criminal Justice Act.
4
Judgment vacated and case remanded.
5
Mr. Justice BLACK dissents.
6
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
| 01
|
389 U.S. 22
88 S.Ct. 2
19 L.Ed.2d 22
Johnny COLEMANv.ALABAMA.
No. 162, Misc.
Oct. 16, 1967.
Jack Greenberg, Michael Meltsner and Orzell Billingsley, for petitioner.
MacDonald Gallion, Atty. Gen. of Alabama, and Leslie Hall, Asst. Atty. Gen., for respondent.
PER CURIAM.
1
The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted.
2
On our previous remand, we held that petitioner was entitled to 'his day in court on his allegations of systematic exclusion of Negroes from the grand and petit juries sitting in his case.' 377 U.S. 129, 133, 84 S.Ct. 1152, 1154, 12 L.Ed.2d 190. Petitioner was thereupon afforded an evidentiary hearing on his allegations. Although the evidence was in dispute regarding the inclusion of Negroes in the grant and petit jury venires in the county in which petitioner was indicted and tried, it appeared that no Negro served on the grand jury which indicted or the petit jury which convicted petitioner. It further appeared that up to the time of petitioner's trial, no Negro had ever served on a grand jury panel and few, if any, Negroes had served on petit jury panels. This 'testimony in itself made out a prima facie case of the denial of the equal protection which the Constitution guarantees.' Norris v. State of Alabama, 294 U.S. 587, 591, 55 S.Ct. 579, 581, 79 L.Ed. 1074. In the absence of evidence adduced by the State adequate to rebut the prima facie case, petitioner was therefore entitled to have his conviction reversed. Arnold v. State of North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77; Eubanks v. State of Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991; Reece v. State of Georgia, 350 U.S. 85, 87—88, 76 S.Ct. 167, 169, 100 L.Ed. 77; Hernandez v. State of Texas, 347 U.S. 475, 481, 74 S.Ct. 667, 671, 98 L.Ed. 866; Hill v. State of Texas, 316 U.S. 400, 406, 62 S.Ct. 1159, 1162, 86 L.Ed. 1559; Norris v. State of Alabama, supra.
3
On our independent examination of the record, we are unable to discover any evidence adduced by the State adequate to rebut petitioner's prima facie case. The Alabama Supreme Court, in affirming the trial court's denial of relief, acknowledged that the evidence indicated 'a disparity' and stated only that 'that disparity can be explained by a number of other factors.' 280 Ala. 509, 512, 195 So.2d 800, 802. The only factors mentioned, however, were that Negroes had moved away from the county and that some may have been under the statutory disqualification of having suffered a felony conviction. In the circumstances of this case these factors were not in our view sufficient to rebut petitioner's prima facie case.
4
The judgment of the Alabama Supreme Court is therefore reversed and the case is remanded to that court for further proceedings not inconsistent with this opinion.
5
It is so ordered.
6
Judgment reversed and case remanded.
| 12
|
389 U.S. 15
88 S.Ct. 6
19 L.Ed.2d 15
Harvey R. BITTERv.UNITED STATES.
No. 201.
Oct. 16, 1967.
Ray T. McCann, for petitioner.
Solicitor General Marshall, Assistant Attorney General Vinson, Beatrice Rosenberg and Kirby W. Patterson, for the United States.
PER CURIAM.
1
Petitioner was tried on 18 counts of violating the mail fraud statute, 18 U.S.C. § 1341, and one count of using an assumed name, a violation of 18 U.S.C. § 1342. On the third day of trial, the Government rested its case. This was earlier than it had announced or than petitioner had anticipated. At recess time petitioner sought leave of the court to go to his office in order to gather additional evidence for the defense. Permission for this was granted. Forty-five minutes were allotted for the recess.
2
Petitioner, who had previously appeared promptly at every session of the trial, was this time tardy by 37 minutes in returning to court. Without warning, hearing, or explanation, the trial judge ordered petitioner into custody for the balance of the trial. Attempts by petitioner's counsel to offer explanations for petitioner's lateness were to no avail.
3
Defense counsel was then advised that petitioner would be kept in custody in a county jail located some 18 miles from the court. In fact, petitioner was taken about 40 miles distant, to a different jail. Counsel's endeavors throughout the trial to obtain petitioner's release proved fruitless. Petitioner remained in custody for the duration of the trial. He was convicted on seven counts of mail fraud and given a sentence of one year and one day on each count, the sentences to run concurrently. He was also fined a total of $3,500.
4
Petitioner contended that his incarceration was unjustified and that it materially interfered with his right to counsel and severely impeded his defense. The Court of Appeals for the Seventh Circuit affirmed the conviction. 374 F.2d 744 (1967). We grant certiorari and reverse.
5
A trial judge indisputably has broad powers to ensure the orderly and expeditious progress of a trial. For this purpose, he has the power to revoke bail and to remit the defendant to custody. But this power must be exercised with circumspection. It may be invoked only when and to the extent justified by danger which the defendant's conduct presents or by danger of significant interference with the progress or order of the trial.1 See Fernandez v. United States, 365 U.S. 397, 81 S.Ct. 642, 5 L.Ed.2d 683 (1961) (memorandum of Mr. Justice Harlan in chambers); Carbo v. United States, 288 F.2d 282 (C.A.9th Cir. 1961); Christoffel v. United States, 89 U.S.App.D.C. 341, 196 F.2d 560 (1951).
6
The record in this case shows only a single, brief incident of tardiness, resulting in commitment of the defendant to custody for the balance ofthe trial in a jail 40 miles distant from the courtroom. In these circumstances, the trial judge's order of commitment, made without hearing or statement of reasons, had the appearance and effect of punishment rather than of an order designed solely to facilitate the trial. Punishment may not be so inflicted. Cf. Rule 42 of Fed.Rules Crim.Proc. (governing the contempt power). We therefore hold that the order was unjustified and that it constituted an unwarranted burden upon defendant and his counsel in the conduct of the case.
7
Accordingly, we grant certiorari and reverse the judgment.
8
Judgment reversed.
9
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
1
It does not appear whether defendant was at large on bail at the time of the order remitting him to custody. But the same principle would apply if he had been at liberty on his own recognizance. Cf. Bail Reform Act of 1966, 18 U.S.C. § 3146 (1964 ed., Supp. II).
| 01
|
389 U.S. 24
88 S.Ct. 4
19 L.Ed.2d 25
Alexander David JONESv.GEORGIA.
No. 174, Misc.
Oct. 16, 1967.
Wilbur D. Owens, Jr., for petitioner.
Arthur K. Bolton, Atty. Gen. of Georgia, G. Ernest Tidwell, Executive Asst. Atty. Gen., and Marion O. Gordon, Asst. Atty. Gen., for respondent.
PER CURIAM.
1
The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted.
2
Petitioner appealed his conviction for murder to the Georgia Supreme Court where he sought reversal on the ground, among others, that the evidence relevant to his claim of systematic exclusion of Negroes from the grand and petit juries drawn in the county established a prima facie case of the denial of equal protection within our decision in Whitus v. State of Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599.* The Georgia Supreme Court affirmed the conviction stating that Whitus was distinguishable because 'public officers are presumed to have discharged their sworn official duties. * * * Under the testimony in this case we cannot assume that the jury commissioners did not eliminate prospective jurors on the basis of their competency to serve, rather than because of racial discrimination.' 223 Ga. 157, 162, 154 S.E.2d 228, 232.
3
We hold that the burden upon the State to explain 'the disparity between the percentage of Negroes on the tax digest and those on the venires,' Whitus, supra, 385 U.S. at 552, 87 S.Ct. at 647, was not met by the Georgia Supreme Court's reliance on the stated presumptions. See Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77; Eubanks v. State of Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991; Williams v. State of Georgia, 349 U.S. 375, 75 S.Ct. 814, 99 L.Ed. 1161; Avery v. State of Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244; Cassell v. State of Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839; Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074. We therefore reverse the judgment of the Georgia Supreme Court and remand for further proceedings not inconsistent with our opinion.
4
It is so ordered.
5
Reversed and remanded.
*
The record supports the following comparison of the salient facts in Whitus and in petitioner's case:
Whitus Petitioner's case
Over 21 population 42.6% Negro men 30.7% Negro
Jury Commissioners White (apparently) White
Source of juror Tax Digests separated 3 Tax Digests, two of
names and identified as to race which separated and
identified as to race
Taxpayers 27.1% Negro 197% Negro
Negro jurors 9.1% grand jury venire 5.0% of jury list and box
7.8% petit jury venire
(1 Negro was on the
grand jury which
indicted petitioner)
Rebuttal evidence
by State None None
| 12
|
389 U.S. 28
88 S.Ct. 106
19 L.Ed.2d 28
ASSOCIATED PRESSv.Edwin A. WALKER.
No. 306.
Supreme Court of the United States
October Term, 1967.
October 16, 1967
Rehearing Denied Dec. 4, 1967.
See 389 U.S. 997, 88 S.Ct. 462.
William P. Rogers, Leo P. Larkin, Jr., Stanley Godofsky, Arthur Moynihan, Earl T. Thomas, John T. Guyton and Billy R. Pesnell, for petitioner.
W. Scott Wilkinson and Clyde J. Watts, for respondent.
On Petition for Writ of Certiorari to the Court of Appeal of Louisiana, Second Circuit.
PER CURIAM.
1
The petition for a writ of certiorari is granted. The judgment is reversed and the case is remanded for further proceedings not inconsistent with Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094.
2
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, concurs in the result for the reasons stated in Mr. Justice Black's separate opinion in Curtis Publishing Co. v. Butts, 388 U.S. 130, 170, 87 S.Ct. 1975, 18 L.Ed.2d 1094.
| 23
|
389 U.S. 18
88 S.Ct. 1
19 L.Ed.2d 18
Robert B. ROBERTSv.UNITED STATES.
No. 330.
Oct. 16, 1967.
Thomas F. Call, for petitioner.
Acting Solicitor General Spritzer, Assistant Attorney General Vinson and Beatrice Rosenberg, for the United States.
PER CURIAM.
1
The petition for certiorari is granted. Petitioner's conviction is vacated and the case is remanded to the District Court for further proceedings consistent with this opinion.
2
In proceedings before the Court of Appeals pursuant to our previous remand, Levine v. United States, 383 U.S. 265, 86 S.Ct. 925, 15 L.Ed.2d 737, the Court of Appeals granted petitioner's codefendant Levine a new trial based upon a disclosure by the Government that, after the return of the indictment, agents of the Federal Bureau of Investigation monitored conversations between Levine and Levine's attorney. But the Court of Appeals denied petitioner's motion for the same relief or, alternatively, for a remand to the District Court for an evidentiary hearing to determine whether he was prejudiced by the monitoring; the Court of Appeals stated, however, that the motion was denied 'without prejudice to such application by him to the District Court as may be appropriate.' In the circumstances of this case, and in light of the acknowledgment of the Solicitor General in his brief in opposition that 'the F.B.I. logs pertaining to the monitored conversations' are available, we think the Court of Appeals erred in denying petitioner's alternative motion for an evidentiary hearing in the District Court. We therefore vacate petitioner's conviction and remand to the District Court with direction to afford petitioner such an evidentiary hearing. Depending upon its findings, the District Court will either reinstate the conviction or order a new trial, as may be appropriate. See United States v. Wade, 388 U.S. 218, 242, 87 S.Ct. 1926, 1940, 18 L.Ed.2d 1149.
3
Vacated and remanded.
4
Mr. Justice BLACK dissents.
5
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
| 01
|
389 U.S. 1
88 S.Ct. 55
19 L.Ed.2d 1
Robert C. BOHANNAN, Jr.v.ARIZONA ex rel. Darrell F. SMITH, Attorney General.
No. 204.
Supreme Court of the United States
October Term, 1967.
October 9, 1967
John P. Frank, for appellant.
Darrell F. Smith, Atty. Gen. of Arizona, and Gary K. Nelson, Asst. Atty. Gen., for appellee.
PER CURIAM.
1
The motion to dispense with printing the motion to dismiss is granted. The motion to dismiss is also granted and the appeal is dismissed for want of a properly presented federal question.
2
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK joins, dissenting.
3
Appellee applied in the court below for a writ of quo warranto. The petition asked that appellant be ousted 'from the office he presently holds as Member of the State Board of Public Welfare of the State of Arizona, and [that] his office [be declared] vacant so that a successor may be qualified as provided by law.' Appellee referred in its petition and brief to Ariz.Rev.Stat. § 38-447, which provides that any official who violates the statutory prohibition against having an interest in contracts made by him in his official capacity 'shall be punished by a fine of not more than one thousand dollars or by imprisonment in the state prison for not more than five years, and is forever disqualified from holding any office in this state.' Appellee, however, asked the court below only to require appellant 'to show cause why his position as a Member of the State Board of Public Welfare should not be declared vacant and why he should not be found to unlawfully hold said office, so that a successor may be qualified as provided by law.'
4
Appellant filed a motion to quash the application on the ground that under the statutory scheme removal from office could be imposed only upon one who had been found guilty in a criminal proceeding of violating the statutory provisions. That motion was denied. Appellant then answered the application, acknowledging that certain mortgage transactions between the Arizona Retirement Board and the Associated Mortgage and Investment Company took place while he was a member of the former and president and director of the latter. Oral argument was denied, the case being decided on the briefs.
5
Up to that point, therefore, the matter was presented as a question of state law—it was contended that the state statutes did not permit removal from office prior to a criminal conviction. The court, however, not only ruled that appellant should be excluded from his office as a Member of the State Board of Public Welfare but also 'forever disqualified from holding any public office in the State of Arizona.' To reach this conclusion, the court construed the Arizona statutes to require a criminal conviction if a fine or imprisonment were to be imposed on the public official, but only a 'judicial determination of the fact upon which the disqualification rests,' if disqualification were the sanction to be imposed. The quo warranto proceeding before the court was held to offer a sufficient 'judicial determination of the fact' to exclude appellant from the office he held and to bar him permanently from public office.
6
In his petition for rehearing appellant challenged on federal constitutional grounds the court's use of the civil quo warranto proceeding to disqualify him permanently from public office. He asserted that the statute, as construed by the court, permitted the permanent barring of a person from public office in a civil proceeding lacking vital elements of due process. Appellant also contended that the statute, as construed, constituted a bill of attainder since it operated to inflict punishment without the constitutional safeguards of a judicial trial.
7
It seems obvious that until the court had interpreted the statute in appellant's case to allow permanent disqualification in a quo warranto proceeding in which the petition asked only for a show-cause order and that appellant be discharged from his present office, appellant had, as a practical matter, no reason to raise the federal claims he presents to this Court. Appellee did not ask for a declaration of permanent disqualification in its petition for quo warranto. The Arizona statute that expressly provides for the judgment to be entered in a quo warranto case, Ariz.Rev.Stat. § 12-2045, does not mention permanent disqualification from office. That section provides only that 'when a defendant is adjudged guilty of usurping or intruding into or unlawfully holding an office, franchise or privilege, judgment shall be given that the defendant be excluded from the office, franchise or privilege. The court may also impose upon defendant a fine not exceeding two thousand dollars, which, when collected, shall be paid into the state treasury.'
8
If a federal question arises because of an unexpected construction of a state statute by the highest state court, the question is timely raised for purposes of review by this Court if it is presented in the petition for rehearing. Brinker-hoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673, 50 S.Ct. 451, 74 L.Ed. 1107.
9
A declaration that a person is permanently barred from any future public office raises constitutional issues that simple removal from office does not. Such a declaration sweeps broadly and may destroy the individual's right to a livelihood in the field of his greatest competence. The serious nature of any such holding demands that the rules of procedural due process be complied with strictly. I believe that the issues raised are substantial and were properly presented below. Probable jurisdiction should be noted, or at the very least we should take the case and hear it argued, post-poning the question of jurisdiction to the merits.
| 89
|
389 U.S. 35
88 S.Ct. 189
19 L.Ed.2d 35
Johnny Daniel BEECHERv.ALABAMA.
No. 92, Misc.
Decided Oct. 23, 1967.
Jack Greenberg, James M. Nabrit III and Michael Meltsner, for petitioner.
MacDonald Gallion, Atty. Gen. of Alabama, and Leslie Hall, Asst. Atty. Gen., for respondent.
PER CURIAM.
1
On the morning of June 15, 1964, the petitioner, a Negro convict in a state prison, escaped from a road gang in Camp Scottsboro, Alabama. On June 16, a woman's lifeless body was found not more than a mile from the prison camp. The next day, the petitioner was captured in Tennessee; he was then returned to Jackson County, Alabama, where he was indicted, tried, and convicted on a charge of first degree murder. The jury fixed his punishment at death. After the Supreme Court of Alabama affirmed his conviction, he filed this petition for certiorari, contending that a coerced confession was used as evidence at his trial, in violation of the Due Process Clause of the Fourteenth Amendment.1
2
The uncontradicted facts of record are these. Tennessee police officers saw the petitioner as he fled into an open field and fired a bullet into his right leg. He fell, and the local Chief of Police pressed a loaded gun to his face while another officer pointed a rifle against the side of his head. The Police Chief asked him whether he had raped and killed a white woman. When he said that he had not, the Chief called him a liar and said, 'If you don't tell the truth I am going to kill you.' The other officer then fired his rifle next to the petitioner's ear, and the petitioner immediately confessed.2 Later the same day he received an injection to ease the pain in his leg. He signed something the Chief of Police described as 'extradition papers' after the officers told him that 'it would be best * * * to sign the papers before the gang of people came there and killed' him. He was then taken by ambulance from Tennessee to Kilby Prison in Montgomery, Alabama. By June 22, the petitioner's right leg, which was later amputated, had become so swollen and his wound so painful that he required an injection of morphine every four hours. Less than an hour after one of these injections, two Alabama investigators visited him in the prison hospital. The medical assistant in charge told the petitioner to 'cooperate' and, in the petitioner's presence, he asked the investigators to inform him if the petitioner did not 'tell them what they wanted to know.' The medical assistant then left the petitioner alone with the State's investigators. In the course of a 90-minute 'conversation,' the investigators prepared two detailed statements similar to the confession the petitioner had given five days earlier at gunpoint in Tennessee. Still in a 'kind of slumber' from his last morphine injection, feverish, and in intense pain, the petitioner signed the written confessions thus prepared for him.
3
These confessions were admitted in evidence over the petitioner's objection.3 Although there is some dispute as to precisely what occurred in the petitioner's room at the prison hospital,4 we need not resolve this evidentiary conflict, for even if we accept as accurate the State's version of what transpired there, the uncontradicted facts set forth above lead to the inescapable conclusion that the petitioner's confessions were involuntary. See Davis v. State ofNorth Carolina, 384 U.S. 737, 741—742, 86 S.Ct. 1761, 1764—1765, 16 L.Ed.2d 895.
4
The petitioner, already wounded by the police, was ordered at gunpoint to speak his guilt or be killed. From that time until he was directed five days later to tell Alabama investigators 'what they wanted to know,' there was 'no break in the stream of events'. Clewis v. State of Texas, 386 U.S. 707, 710, 87 S.Ct. 1338, 1340, 18 L.Ed.2d 423. For he was then still in pain, under the influence of drugs, and at the complete mercy of the prison hospital authorities. Compare Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948.
5
The State says that the facts in this case differ in some respects from those in previous cases where we have held confessions to be involuntary. But constitutional inquiry into the issue of voluntariness 'requires more than a mere color-matching of cases,' Reck v. Pate, 367 U.S. 433, 442, 81 S.Ct. 1541, 1547, 6 L.Ed.2d 948. A realistic appraisal of the circumstances of this case compels the conclusion that this petitioner's confessions were the product of gross coercion. Under the Due Process Clause of the Fourteenth Amendment, no conviction tainted by a confession so obtained can stand.
6
The motion for leave to proceed in forma pauperis and the petition for certiorari are granted and the judgment is reversed.
7
Reversed.
8
Mr. Justice BLACK concurs in the judgment of the Court reversing the conviction in this case but does so exclusively on the ground that the confession of the petitioner was taken from him in violation of the Self-Incrimination Clause of the Fifth Amendment to the Constitution of the United States, which Amendment was made applicable to the States by the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964).
9
Mr. Justice BRENNAN, whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS join.
10
I concur in the judgment of reversal. This confession was taken after our decision in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. Under the test of admissibility stated in Malloy, the facts plainly compel the Court's conclusion that the petitioner's confession was inadmissible because involuntary. We said in Malloy, at 7, 84 S.Ct. at 1493:
11
'* * * the admissibility of a confession in a state criminal prosecution is tested by the same standard applied in federal prosecutions since 1897, when, in Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568, the Court held that '(i)n criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the Constitution of the United States commanding that no person 'shall be compelled in any criminal case to be a witness against himself." Id., 168 U.S. at 542, 18 S.Ct. at 187. Under this test, the constitutional inquiry is not whether the conduct of state officers in obtaining the confession was shocking, but whether the confession was 'free and voluntary: that is, (it) must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. * * *' Id., 168 U.S. at 542—543, 18 S.Ct. at 186 187; see also Hardy v. United States, 186 U.S. 224, 229, 22 S.Ct. 889, 891, 46 L.Ed. 1137; Ziang Sung Wan v. United States, 266 U.S. 1, 14, 45 S.Ct. 1, 3, 69 L.Ed. 131; Smith v. United States, 348 U.S. 147, 150, 75 S.Ct. 194, 196, 99 L.Ed. 192.'
1
The petitioner also makes other Fourteenth Amendment claims. In light of our disposition of this case, we do not reach them.
2
Although this confession was not introduced at trial, its existence is of course vitally relevant to the voluntariness of petitioner's later statements. See United States v. Bayer, 331 U.S. 532, 540—541, 67 S.Ct. 1394, 1398—1399, 91 L.Ed. 1654.
3
Because part of the evidence bearing on the voluntariness of the confessions was introduced in a hearing on the petitioner's motion for new trial, the State suggests that '(h)is complaint that the confession was improperly admitted now comes too late.' That suggestion is clearly untenable. The petitioner objected when the confessions were first introduced; having overruled the objection, the trial court rejected the State's claim that the issue could not be reviewed on a new trial motion; and the Supreme Court of Alabama found no state procedural bar to reaching the merits of the voluntariness claim and deciding it on the complete record. There can thus be no doubt here that the issue was raised 'in (an) appropriate manner,' Brown v. State of Mississippi, 297 U.S. 278, 286—287, 56 S.Ct. 461, 465—466, 80 L.Ed. 682. In any event, since the state court deemed the federal constitutional question to be before it, we could not treat the decision below as resting upon an adequate and independent state ground even if we were to conclude that the state court might properly have relied upon such a ground to avoid deciding the federal question. State of Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 98, 58 S.Ct. 443, 445, 82 L.Ed. 685.
4
The investigators claimed at trial that they had told the petitioner, during their 90-minute talk with him, that he was under no obligation to speak and that anything he said could be used against him. One of the investigators stated that he had asked the petitioner whether he wanted an attorney, and had received a negative reply. Although the prepared statements that the petitioner signed refer to no such warnings, and although the conversation in question took place on the date of this Court's decision in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, the state courts accepted the investigators' accounts of that conversation and rejected the petitioner's contrary testimony as 'not at all persuasive.'
| 01
|
389 U.S. 31
88 S.Ct. 192
19 L.Ed.2d 31
Warren PINTO, Superintendent, New Jersey State Prison Farmv.Lawrence PIERCE.
No. 284.
Oct. 23, 1967.
Rehearing Denied Dec. 4, 1967.
See 389 U.S. 997, 88 S.Ct. 462.
Thomas P. Ford, Jr., for petitioner.
PER CURIAM.
1
Respondent was indicted by the grand jury of Essex County, New Jersey, on July 2, 1959, for the crime of robbery while armed. Following a plea of not guilty, he was tried before a jury, convicted and sentenced to a term of from 16 to 23 years in the New Jersey State Prison. On June 6, 1966, respondent filed a petition for a writ of habeas corpus in the United States District Court for the District of New Jersey. The District Judge determined from the transcript of respondent's trial that the trial court had heard in the presence of the jury testimony regarding the voluntariness of an incriminating statement sought to be introduced by the prosecution, held that under prior decisions of this Court this procedure violated respondent's constitutional rights and granted the writ. The Court of Appeals for the Third Circuit affirmed, and petitioner, the Superintendent of the New Jersey State Prison Farm, seeks a writ of certiorari.
2
The petition for certiorari is granted and the judgment is reversed. This Court has never ruled that all voluntariness hearings must be held outside the presence of the jury, regardless of the circumstances. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), held that a defendant's constitutional rights are violated when his challenged confession is introduced without a determination by the trial judge of its voluntariness after an adequate hearing. A confession by the defendant found to be involuntary by the trial judge is not to be heard by the jury which determines his guilt or innocence. Hence, because a disputed confession may be found involuntary and inadmissible by the judge, it would seem prudent to hold voluntariness hearings outside the presence of the jury.1 In this case, however, the confession was held voluntary and admitted as evidence suitable for consideration by the jury. In addition, there is no claim that because the hearing was held in the presence of the jury it was inadequate or had any other unfair consequences for the respondent.2
3
Finally, it is clear that the respondent in this case did not object to having the voluntariness of his admission considered in the presence of the jury. At his trial the court asked defense counsel whether there was any objection to the testimony being taken in the presence of the jury. Defense counsel replied, 'None whatsoever.' The court continued, 'As you know, it can be taken in their presence or outside of their presence, and that is a matter of discretion with the Court but I am inquiring of you if have any objections. If you did I would hear you but I assume you have none.' Again counsel replied, 'I have none.' The evidence regarding voluntariness, which included testimony by respondent, was then taken, after which the court ruled that the statement was voluntary.
4
Since trial counsel consented to the evidence on voluntariness being taken in the presence of the jury, and the judge found the statement voluntary, respondent was deprived of no constitutional right. The motion of respondent for leave to proceed in forma pauperis and the petition for certiorari are granted, the judgment is reversed and the case is remanded to the District Court with instructions to dismiss the writ of habeas corpus.
5
Reversed and remanded with instructions.
6
Mr. Justice BLACK concurs in the result.
7
Mr. Justice FORTAS concurring in the result.
8
I concur in the result because of trial counsel's consent to the taking of evidence on voluntariness in the presence of the jury. Otherwise, I disagree. The rule of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), should be more than ritual. It was not intended to assure a determination by the judge at the cost of diluting the jury's rule in the determination of voluntariness and the weight to be given to admissions. 'Just as questions of admissibility of evidence are traditionally for the court, questions of credibility, whether of a witness or a confession, are for the jury.' Id., at 386, n. 13, 84 S.Ct. at 1786. See also id., at 378, n. 8, 84 S.Ct. at 1781, and cf. id., at 404, 84 S.Ct. at 1795 (separate opinion of Black, J.).
9
Jackson v. Denno means that the judge and the jury must each make an independent judgment of voluntariness of an admission, the judge for purposes of admissibility and the jury for evidentiary acceptability, credibility, and weight. A telescoped hearing before judge and jury, in which the judge finds voluntariness for purposes of admissibility, in reality reduces the jury function to an echo. Hearing the evidence simultaneously with the judge, the jury is not apt to approach disagreement with him. I believe that the procedure here sanctioned, by reducing the effectiveness of the jury, gravely impairs the constitutional principle of excluding involuntary confessions which Jackson v. Denno sought to serve.
10
The jury is the traditional and preferred arbiter of facts. The procedure countenanced here, by dicta, sanctions, in effect, a direction to the jury to accept and give full credence to the admission—because the judge, hearing the same testimony, has ruled that the admission is voluntary.
1
The New Jersey Supreme Court has recently announced that from September 11, 1967, hearings on admissibility shall be outside the presence of the jury if the defendant so requests. See State v. Broxton, 49 N.J. 373, 386, n. 2, 230 A.2d 489, 496, n. 2 (1967).
2
In United States v. Carignan, 342 U.S. 36, 72 S.Ct. 97, 96 L.Ed. 48 (1951), relied upon by the trial court, reversal of a conviction was affirmed because the trial judge, after hearing some evidence concerning voluntariness with the jury present, refused to permit the defendant to testify on the subject.
The other cases cited by the District Court granted writs of habeas corpus in cases in which trial judges had made no independent determination of voluntariness. See, for the citations to those cases, United States ex rel. Pierce v. Pinto, 259 F.Supp. 729, 731 (D.C.N.J.1966).
| 01
|
389 U.S. 47
88 S.Ct. 233
19 L.Ed.2d 46
POTOMAC NEWS CO., etc.v.UNITED STATES.
No. 164.
Supreme Court of the United States
October Term, 1967.
October 23, 1967
Stanley M. Dietz, for petitioner.
Solicitor General Marshall, Assistant Attorney General Vinson and Jerome M. Feit, for the United States.
PER CURIAM.
1
The petition for a writ of certiorari is granted and the judgment of the United States Court of Appeals for the Fourth Circuit is reversed. Redrup v. State of New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515.
2
Mr. Justice HARLAN concurs in the judgment of reversal upon the premises stated in his separate opinion in Roth v. United States, 354 U.S. 476, 496, 77 S.Ct. 1304, 1 L.Ed.2d 1498, and in his dissenting opinion in A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Com. of Massachusetts, 383 U.S. 413, 455, 457, 86 S.Ct. 975, 16 L.Ed.2d 1.
3
THE CHIEF JUSTICE dissents.
4
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
| 23
|
389 U.S. 40
88 S.Ct. 194
19 L.Ed.2d 41
Louis ROBERTSv.LaVALLEE, Warden.
No. 193, Misc.
Oct. 23, 1967.
Warren H. Greene, Jr., for petitioner.
Leon B. Polsky, for Legal Aid Society of New York, amicus curiae.
PER CURIAM.
1
Petitioner is an indigent. He was charged with robbery, larceny, and assault in New York. When his case was called for trial, petitioner asked that the court furnish him, at state expense, with the minutes of a prior preliminary hearing, at which the major state witnesses had testified. A New York statute provided that a transcript of the hearing would be furnished 'on payment of * * * fees at the rate of five cents for every hundred words.' N.Y.Code Crim.Proc. § 206. The trial court denied the request for a free transcript.
2
Petitioner was convicted of the crimes charged and sentenced to a term of 15—20 years in prison. His conviction was affirmed by the Appellate Division of the New York Supreme Court. The New York Court of Appeals denied leave to appeal. We denied a petition for certiorari. The issue under the Federal Constitution of the denial of the preliminary hearing transcript was raised by petitioner at each stage of these proceedings.
3
Petitioner next applied for habeas corpus in the Northern District of New York. His petition was denied, the court believing that petitioner had no federal constitutional right to a free transcript of his preliminary hearing. Thereafter, the New York Court of Appeals decided People v. Montgomery, 18 N.Y.2d 993, 278 N.Y.S.2d 226, 224 N.E.2d 730 (1966). That case holds that the statutory requirement of payment for a preliminary hearing transcript, as applied to an indigent, is a denial of equal protection and unconstitutional, under both the Federal and State Constitutions.
4
On petitioner's appeal from the District Court, the Court of Appeals for the Second Circuit determined that petitioner should apply to the state courts for relief under the doctrine of Montgomery. The court acknowledged that petitioner had already exhausted his state remedies. But it thought the 'constitutional necessity for federal court intervention' was 'open to doubt' and that 'the question ought to be decided in favor of permitting a state court determination in the first instance.' Accordingly, it dismissed the petition for habeas corpus without prejudice to renewal of the questions presented by petitioner after further proceedings in the courts of New York.
5
Petitioner sought certiorari. We grant the writ, and we vacate the judgment below.
6
Our decisions for more than a decade now have made clear that differences in access to the instruments needed to vindicate legal rights, when based upon the financial situation of the defendant, are repugnant to the Constitution. See, e.g., Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). Only last Term, in Long v. District Court of Iowa, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290 (1966), we reiterated the statement first made in Smith v. Bennett, 365 U.S. 708, 709, 81 S.Ct. 895, 896, 6 L.Ed.2d 39 (1961), that '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.' We have no doubt that the New York statute struck down by the New York Court of Appeals in Montgomery, as applied to deny a free transcript to an indigent, could not meet the test of our prior decisions.
7
Nor do we believe there can be any doubt that petitioner adequately made known his desire to obtain the minutes of his preliminary hearing. We agree with Judge Medina, dissenting in the Court of Appeals, that the demand was 'clear and unequivocal.'
8
In Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), we considered the statutory requirement, under 28 U.S.C. § 2254, that a petitioner exhaust his state remedies before applying for federal habeas corpus relief. We concluded that Congress had not intended 'to require repetitious applications to state courts.' 344 U.S., at 449, n. 3, 73 S.Ct. at 403. We declined to rule that the mere possibility of a successful application to the state courts was sufficient to bar federal relief. Such a rule would severely limit the scope of the federal habeas corpus statute.
9
The observations made in the Brown case apply here. Petitioner has already thoroughly exhausted his state remedies, as the Court of Appeals recognized. Still more state litigation would be both unnecessarily time-consuming and otherwise burdensome. This is not a case in which there is any substantial state interest in ruling once again on petitioner's case. We can conceive of no reason why the State would wish to burden its judicial calendar with a narrow issue the resolution of which is predetermined by established federal principles.
10
The motion for leave to proceed in forma pauperis and the writ of certiorari are granted, the judgment is vacated and the case is remanded to the Court of Appeals for proceedings consistent with this opinion.
11
Mr. Justice HARLAN, dissenting.
12
As the Court states, petitioner was told that if he wished a transcript of his preliminary hearing he would have to pay for it. The Court fails to add, however, that petitioner and his counsel were both present at the preliminary hearing, that they were furnished a free transcript of the grand jury testimony of the state witness in question but made no use of this transcript at trial, and that at no time has petitioner suggested any use to which the preliminary hearing transcript could have been put, although he is in a position to know what it contains.
13
The decisions cited in the majority opinion fall far short of declaring that any document related to the criminal process, no matter how demonstrably trivial its significance, must be supplied free to indigents simply because the State is willing to make it available to others able to pay for it. Rather than formulate such an undiscriminating rule, a rule that predictably may lead to a narrowing of the availability of documents that a State is not constitutionally required to furnish to any criminal defendant, I would at least undertake to examine the importance of the particular document in question.
14
This examination is not necessary in the present case, however, for, as the Court's opinion recognizes, there exists an adequate basis under state law for affording petitioner the relief that he seeks here. Believing, as did the Court of Appeals, that federal courts should not unnecessarily interfere with the administration of justice in state courts, particularly when this involves reaching federal constitutional questions unnecessarily, see Harrison v. NAACP, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152, I would affirm the decision below.
15
In addition, in the circumstances depicted by this record, I consider the Court's disposition of this case improvident even under the postulates of its opinion. I understand the Court to require the issuance of a writ of habeas corpus, and hence the setting aside of the state conviction, without any further investigation of whether the constitutional error now found to have been committed by the state courts actually prejudiced this defendant. Since there appears every likelihood that further examination would reveal that the denial of a preliminary hearing transcript to this petitioner was 'harmless beyond a reasonable doubt,' Chapman v. California, 386 U.S. 18, at 24, 87 S.Ct. 824, 17 L.Ed.2d 705, the case should have been sent back to the Court of Appeals with instruction to remand to the District Court for a hearing to determine the possibility of prejudice. Cf. Roberts v. United States, 389 U.S. 18, 88 S.Ct. 1, 19 L.Ed.2d 18. Due respect for state criminal processes requires at least this much.
| 12
|
389 U.S. 80
88 S.Ct. 253
19 L.Ed.2d 255
Sam UMANS, petitioner,v.UNITED STATES.
No. 41.
Supreme Court of the United States
October Term, 1967.
November 6, 1967
Rehearing Denied Dec. 18, 1967.
See 389 U.S. 1025, 88 S.Ct. 583.
Edward Brodsky, New York City, for petitioner.
Sidney M. Glazer, for respondent.
On Writ of Certiorari to the United States Court of Appeals for the Second Circuit.
PER CURIAM.
1
The writ of certiorari is dismissed as improvidently granted.
2
Mr. Justice HARLAN would affirm the judgment of the Court of Appeals substantially for the reasons stated in Judge Waterman's opinion for that court in United States v. Umans, 2 Cir., 368 F.2d 725.
3
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
| 89
|
389 U.S. 81
88 S.Ct. 197
19 L.Ed.2d 248
BECKLEY NEWSPAPERS CORP.v.C. Harold HANKS.
No. 467.
Nov. 6, 1967.
Thurman Arnold and Jack A. Mann, for petitioner.
Harry G. Camper, Jr., for respondent.
PER CURIAM.
1
The petition for certiorari is granted.
2
Respondent Hanks is the elected Clerk of the Criminal and Circuit Courts of Raleigh County, West Virginia. He brought this libel action in the West Virginia Circuit Court, Wyoming County, alleging that during his re-election campaign he was libeled by three editorials, highly critical of his official conduct, which appeared in petitioner's morning newspaper. The jury returned a verdict for respondent and awarded him $5,000 damages. The State Supreme Court of Appeals denied petitioner's application for appellate review.
3
Although this action was tried subsequent to the decisions of this Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964); Henry v. Collins, 380 U.S. 356, 85 S.Ct. 992, 13 L.Ed.2d 892 (1965); and Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966), and despite the fact that it was recognized at trial that the principles of New York Times were applicable, the case went to the jury on instructions which were clearly impermissible. The jury was instructed in part that it could find for the respondent if it were shown that petitioner had published the editorials 'with bad or corrupt motive,' or 'from personal spite, ill will or a desire to injure plaintiff.' Because petitioner failed to object to this erroneous interpretation of New York Times at trial, and in fact offered instructions which were themselves inadequate, the issue of these instructions is not before us. However, since it is clear that the jury verdict was rendered upon instructions which misstated the law and since petitioner has properly challenged the sufficiency of the evidence, we have undertaken an independent examination of the record as a whole 'so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression.' New York Times Co. v. Sullivan, supra, 376 U.S., at 285, 84 S.Ct., at 729. See Curtis Publishing Co. v. Butts, 388 U.S. 130, 156—159, 87 S.Ct. 1975, 1992—1993, 18 L.Ed.2d 1094 (1967) (opinion of Mr. Justice Harlan); id., at 168—170, 87 S.Ct., at 1998—1999 (opinion of The Chief Justice).
4
In New York Times we held that the Constitution forbids recovery of damages in a civil libel action by a public official, such as respondent, 'for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.' 376 U.S., at 279—280, 84 S.Ct., at 726. Our examination of the whole record satisfies us that 'the proof presented to show actual malice lacks the convincing clarity which the constitutional standard demands * * *.' 376 U.S., at 285—286, 84 S.Ct., at 728.
5
We put aside the question whether the proofs show that the allegedly libelous statements were false. If false, respondent did not and does not contend that petitioner published the statements with knowledge of their falsity. His contention was and is that the proofs were sufficient for the jury to find that petitioner published the statements with reckless disregard of whether they were false or not. However, virtually the only evidence we find bearing on that question relates to one of the editorials critical of the opposition of respondent and another public official, Mrs. Elinor Hurt, president of the county board of health, to fluoridation of the local water supply. That editorial, captioned 'The Fluoridation Situation Remains Unchanged,' was directed primarily at Mrs. Hurt's opposition* but also included the following:
6
'Here, again, (Mrs. Hurt) seems to want to follow in the footsteps of Hanks. For it was Hanks who ordered over the telephone once that he did not want his name to appear in the Beckley Post-Herald again. He backed up this order with an inexplicit threat—one merely intended to frighten those who are easily intimidated.
7
'The only conclusion to which we can come is that either Hanks and Mrs. Hurt have been in league toward the fanatic end, believing all the wild-eyed ravings against fluoridation despite decades of experience to disprove them, or that perhaps his blustering threats were able to intimidate the lady.' (Emphasis added.)
8
Respondent's argument is that since both he and Mrs. Hurt testified and denied any threats or intimidation, the following testimony of petitioner's president and general manager on cross-examination provides 'convincing proof' of the absence of prior investigation which entitled the jury to find that the 'offending charges' were published with reckless disregard of whether they were false or true:
9
'Q. But you can't tell this jury that any specific investigation was made before this man was attacked in any of these articles, can you?
10
'A. We watch the activities of the public servant. You don't have to make an investigation. His whole life is out in front of everybody.
11
'Q. Those editorials were not written by anybody who wanted to find out whether or not he threatened Mrs. Hurt, were they?
12
'A. There was cause on their part to feel there was that possibility.
13
'Q. That possibility?
14
'A. That's right. 'Perhaps,' they said.
15
'A. It was our opinion that that was as near the facts and truth as we could get.' (Tr. 121—122.)
16
We reject respondent's contention. Neither this passage nor anything else in the record reveals 'the high degree of awareness of * * * probable falsity demanded by New York Times * * *.' Garrison v. State of Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 216, 13 L.Ed.2d 125, it cannot be said on this record that any failure of petitioner to make a prior investigation constituted proof sufficient to present a jury question whether the statements were published with reckless disregard of whether they were false or not. Cf. New York Times Co. v. Sullivan, supra, 376 U.S., at 287—288, 84 S.Ct., 729—730; Time, Inc. v. Hill, 385 U.S. 374, 388—389, 87 S.Ct. 534, 542—543, 17 L.Ed.2d 456 (1967). See also Curtis Publishing Co. v. Butts, supra, 388 U.S., at 153—154, 87 S.Ct., at 1990—1991 (opinion of Mr. Justice Harlan).
17
The judgment is reversed, and the case remanded to the Circuit Court of West Virginia, Wyoming County, for further proceedings not inconsistent with this opinion.
18
It is so ordered.
19
Reversed and remanded.
20
Mr. Justice BLACK, whom Mr. Justice DOUGLAS joins, concurs in the result for the reasons stated in his concurring opinions in New York Times Co. v. Sullivan, 376 U.S. 254, 293, 84 S.Ct. 710, 733, 11 L.Ed.2d 686, and Garrison v. State of Louisiana, 379 U.S. 64, 79, 85 S.Ct. 209, 218, 13 L.Ed.2d 125.
21
Mr. Justice FORTAS took no part in the consideration or decision of this case.
*
When asked whether she had ever brought suit against petitioner for these or other statements, Mrs. Hurt replied, 'No, sir, I have big broad shoulders.' (Tr. 49.)
| 23
|
389 U.S. 86
88 S.Ct. 200
19 L.Ed.2d 253
Richard GARNERv.Howard YEAGER, Warden, et al.
No. 704.
Nov. 6, 1967.
Judgment vacated and case remanded for reconsideration.
PER CURIAM.
1
Certiorari was granted in this case on October 9, 1967. The judgment of the Court of Appeals for the Third Circuit is vacated and the case is remanded to the District Court of New Jersey for further proceedings consistent with this opinion.
2
Petitioner sought federal habeas corpus on the ground, among others, that prior to his state trial, the assistant prosecutor who handled the prosecution concealed the existence of a promise or agreement to recommend a specific sentence or leniency for an accomplice who testified as a State's witness against petitioner. The District Court rejected the claim without a hearing and upon its examination of the trial record, the record upon a motion for new trial, and the decision of the Supreme Court of New Jersey, State v. Sullivan, 43 N.J. 209, 203 A.2d 177. However, subsequent to the entry of the judgment of the Court of Appeals on April 7, 1967, the Supreme Court of New Jersey, on July 5, 1967, in a state post-conviction proceeding brought by petitioner's co-defendant Taylor under N.J.Rev.R. 3:10A, granted Taylor a new trial after a trial court hearing on similar allegations. State v. Taylor, 49 N.J. 440, 231 A.2d 212. In that circumstance the judgment of the Court of Appeals is vacated and the case is remanded to the District Court for reconsideration of petitioner's claim in light of the action of the Supreme Court of New Jersey in State v. Taylor. The District Court's reconsideration may include whether petitioner should be required first to exhaust any remedy which may be available in the state courts. It is so ordered.
| 01
|
389 U.S. 64
88 S.Ct. 201
19 L.Ed.2d 236
INTERNATIONAL LONGSHOREMEN'S ASSN., LOCAL 1291, Petitioner,v.
PHILADELPHIA MARINE TRADE ASSOCIATION. INTERNATIONAL LONGSHOREMEN'S ASSN., LOCAL 1291, Officers & Members, Petitioners, v. PHILADELPHIA MARINE TRADE ASSOCIATION.
Nos. 34, 78.
Argued Oct. 12, 16, 1967.
Decided Nov. 6, 1967.
Abraham E. Freedman, Philadelphia, Pa., for petitioners.
Francis A. Scanlan, Philadelphia, Pa., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
These cases arise from a series of strikes along the Philadelphia waterfront. The petitioner union, representing the longshoremen involved in those strikes, had entered into a collective bargaining agreement in 1959 with the respondent, an association of employers in the Port of Philadelphia. The agreement included provisions for compensating longshoremen who are told after they report for duty that they will not be needed until the afternoon.1 The union construed those 'set-back' provisions to mean that, at least in some situations, longshoremen whose employment was postponed because of unfavorable weather conditions were entitled to four hours' pay; the association interpreted the provisions to guarantee no more than one hour's pay under such circumstances.
2
In April 1965, when this disagreement first became apparent, the parties followed the grievance procedure established by their collective bargaining contract and submitted the matter to an arbitrator for binding settlement.2 On June 11 the arbitrator ruled that the association's reading of the set-back provisions was correct.3 In July, however, a group of union members refused to unload a ship unless their employer would promise four hours' pay for having set back their starting time from 8 a.m. to 1 p.m. The union sought to arbitrate the matter, but the association viewed the original arbitrator's decision as controlling and instituted proceedings in the District Court to enforce it. The complaint alleged that the union had refused 'to abide by the terms of the Arbitrator's Award * * * resulting in serious loss and damage to (the) Employer * * * and to the Port of Philadelphia.' This refusal, the complaint charged, constituted 'a breach of the applicable provisions of the current Collective Bargaining Agreement between the P.M.T.A. and the Union.' The complaint concluded with a prayer 'that the Court set an immediate hearing and enter an order enforcing the Arbitrator's Award, and that plaintiff may have such other and further relief as may be justified.'
3
Before the court could take any action, the employer had met the union's demands and the men had returned to work. The District Court heard evidence in order to 'put the facts on record' but concluded that the case was 'moot at the moment' and decided simply to 'keep the matter in hand as a judge (and) take jurisdiction . . . (i)f anything arises.' A similar situation did in fact arise—this time in September. Again, before the District Court could act, the work stoppage ended. The association nonetheless requested
4
'an order * * * to make it perfectly clear to the (union) that it is required to comply with the Arbitrator's award because we cannot operate in this port if we are going to be continually harassed by the Union in taking the position that they are not going to abide by an Arbitrator's award * * *.'
5
Counsel for the union rejected that characterization of its position. He submitted that the set-back disputes of July and September were distinguishable from the one which occurred in April, and that the arbitrator's decision of June 11, 1965, resolving the April controversy, was not controlling.4 The District Court expressed no opinion on any of these contentions but simply entered a decree, dated September 15, 1965, requiring that the arbitrator's award 'issued on June 11, 1965, be specifically enforced.' The decree ordered the union 'to comply with and to abide by the said Award.' It contained no other command.5
6
When the District Court first indicated that it would issue such a decree, counsel for the union asked the court for clarification:
7
'Mr. Freedman: Well, what does it mean, Your Honor?
8
'The Court: That you will have to determine, what it means.
9
'Mr. Freedman: Well, I am asking. I have to give my client advice and I don't know what it means. I am asking Your Honor to tell me what it means. It doesn't—
10
'The Court: You handled the case. You know about it. * * *
11
'Mr. Freedman: I am telling you very frankly now I don't know what this order means, this proposed order. It says, 'Enforcement of the award.' Now, just what does it mean? * * * The arbitration * * * involved an interpretation of the contract under a specific set of facts * * *. Now, how do you enforce it? That case is over and done with. These are new cases. Your Honor is changing the contract of the parties when you foreclose them from going to arbitration on this point again.
12
'The Court: The Court has acted. This is the order.
13
'Mr. Freedman: Well, won't Your Honor tell me what it means?
14
'The Court: You read the English language and I do.'
15
Although the association had expressly told the District Court that it was 'not seeking to enjoin work stoppages,' counsel for the union asked whether the decree might nonetheless have that effect:
16
'Mr. Freedman: * * * Does this mean that the union cannot engage in a strike or refuse to work or picket?
17
'The Court: You know what the arbitration was about. You know the result of the arbitration.
18
'I have signed the order. Anything else to come before us?
19
'Mr. Freedman: I know, but Your Honor is leaving me in the sky. I don't know what to say to my client.
20
'Mr. Scanlan: No, I have nothing further, Your Honor.
21
'The Court: The hearing is closed.'
22
Thus, despite counsel's repeated requests, the District Judge steadfastly refused to explain the meaning of the order.
23
When further set-back disputes disrupted work throughout the Port of Philadelphia in late February 1966, the District Court issued a rule to show cause why the union and its officers should not be held in contempt for violating the order of September 15. Throughout the contempt hearing held on March 1, 1966, counsel for the union sought without success to determine precisely what acts by the union, its officers, or its members were alleged to have violated the court's order. 'We have a right to know,' he said, 'what it is that we are being accused of * * *.' The District Judge refused to comment.6 At some points in the proceedings, it appeared that the alleged violation consisted of the work stoppage during the last few days of February; but at other times the inquiry focused upon the union's request for a grievance meeting on February 28 to discuss the latest set-back problem. 'Why,' counsel for the association asked, did the union seek 'to rearbitrate the award * * *?' As the contempt hearing drew to a close, counsel for the association suggested yet another possibility—that union officials violated the District Court's decree when they 'castigated' the arbitrator's award and failed to 'tell (the men) that their work stoppage was unauthorized' under the ward entered some eight months earlier. '(I)n failing to do that,' counsel said, 'they have shown that they do not intend to abide by the arbitrator's award which was the essence of the order which Your Honor issued * * *.'
24
Invited to make a closing argument, counsel for the union said:
25
'I really don't know what to address myself to because I don't know what it is we are being charged with. Are we being charged because we want to arbitrate or because we asked to invoke the provisions or are we being charged for something else? * * *
26
'I may say to Your Honor that we have been shooting in the dark here now, trying to guess at what may be an issue * * *.'
27
But the District Judge evidently felt no need for explanation. After a short recess, the court announced that the dock strike was 'illegal * * * under the circumstances,' and that the union had 'violated the order of this Court and therefore shall be adjudged in civil contempt.' After extending the contempt holding to 'the officers and the men who participated,' the court fined the union $100,000 per day, retroactive to 2 p.m., March 1, 1966, when the contempt hearing began, and every day thereafter 'as long as the order of this Court is violated.' The Court of Appeals affirmed both the original decree of the District Court and its subsequent contempt order,7 and we granted certiorari to consider the questions presented by these two judgments.8
28
Much of the argument in the Court of Appeals and in this Court has centered upon the District Court's power to issue the order of September 15, 1965.9 The union maintains that the order was an injunction against work stoppages and points out that in Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440, we held that, because of the Norris-LaGuardia Act, a federal court cannot enjoin a work stoppage even when the applicable collective bargaining agreement contains a no-strike clause. The association, on the other hand, argues that the order no more than enforced an arbitrator's award, and points out that in Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972, we held that, under § 301 of the Labor Management Relations Act, a federal court may grant equitable relief to enforce an agreement to arbitrate. The parties have strenuously argued the applicability of Sinclair and Lincoln Mills to the facts before us. We do not, however, reach the underlying questions of federal labor law these arguments present. For whatever power the District Court might have possessed under the circumstances disclosed by this record, the conclusion is inescapable that the decree which the court in fact entered was too vague to be sustained as a valid exercise of federal judicial authority.
29
On its face, the decree appears merely to enforce an arbitrator's award. But that award contains only an abstract conclusion of law, not an operative command capable of 'enforcement.' When counsel for the union noted this difficulty and sought, to ascertain the District Court's meaning, he received no response. Even at the contempt hearing on March 1, the union was not told how it had failed to 'comply with and * * * abide by the (Arbitrator's) Award,' in accordance with the District Court's original order. That court did express the view on March 1 that the February walkouts had been 'illegal * * * under the circumstances.' But such strikes would have been 'illegal'—in the sense that they would have been violative of the collective bargaining agreement—even if the District Court had entered no order at all, Local 174, Teamsters, Chauffeurs, etc. v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593, and the record does not reveal what further 'circumstances' the court deemed relevant to the conclusion that the union had violated its decree. Thus the September 15 decree, even when illuminated by subsequent events, left entirely unclear what it demanded.
30
Rule 65(d) of the Federal Rules of Civil Procedure was designed to prevent precisely the sort of confusion with which this District Court clouded its command. That rule provides:
31
'Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.'
32
Whether or not the District Court's order was an 'injunction' within the meaning of the Norris-LaGuardia Act, it was an equitable decree compelling obedience under the threat of contempt and was therefore an 'order granting an injunction' within the meaning of Rule 65(d). Viewing the decree as 'specifically enforcing' the arbitrator's award would not alter this conclusion. We have previously employed the term 'mandatory injunction' to describe an order compelling parties to abide by an agreement to arbitrate,10 and there is no reason to suppose that Rule 65(d) employed the injunction concept more narrowly. That rule is the successor of § 19 of the Clayton Act.11 Section 19 was intended to be 'of general application,' to the end that '(d)efendants * * * never be left to guess at what they are forbidden to do * * *.'12 Consistent with the spirit and purpose of its statutory predecessor, we have applied Rule 65(d) in reviewing a judgment enforcing an order of the National Labor Relations Board,13 and the courts of appeals have applied the rule not only to prohibitory injunctions but to enforcement orders and affirmative decrees as well.14 We have no doubt, therefore, that the District's Court's decree, however it might be characterized for other purposes, was an 'order granting an injunction' for purposes of Rule 65(d).
33
The order in this case clearly failed to comply with that rule, for it did not state in 'specific * * * terms' the acts that it required or prohibited. The Court of Appeals viewed this error as 'minor and in no way decisional.'15 We consider it both serious and decisive.
34
The judicial contempt power is a potent weapon. When it is founded upon a decree too vague to be understood, it can be a deadly one. Congress responded to that danger by requiring that a federal court frame its orders so that those who must obey them will know what the court intends to require and what it means to forbid. Because the decree of this District Court was not so framed, it cannot stand. And with it must fall the District Court's decision holding the union in contempt. We do not deal here with a violation of a court order by one who fully understands its meaning but chooses to ignore its mandate. We deal instead with acts alleged to violate a decree that can only be described as unintelligible. The most fundamental postulates of our legal order forbid the imposition of a penalty for disobeying a command that defies comprehension.
35
Reversed.
36
Mr. Justice BRENNAN, concurring in result.
37
I concur in the result. But, like my Brother DOUGLAS, I emphasize that today's disposition in no way implies that Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440, determines the applicability of the Norris-LaGuardia Act to an equitable decree carefully fashioned to enforce the award of an arbitrator authorized by the parties to make final and binding interpretations of the collective bargaining agreement.
38
Mr. Justice DOUGLAS, concurring in part and dissenting part.
39
I would reverse in No. 78 and in No 34 remand the case to the District Court for further proceedings.
40
If the order of the District Court is an 'injunction' within the meaning of Rule 65(d), then I fail to see why it is not an 'injunction' within the meaning of the Norris-LaGuardia Act. Legal minds possess an inventive genius as great as that of those who work in the physical sciences. Perhaps a form of words could be worked out which would emply the science of semantics to distinguish the Norris-LaGuardia Act problem from the present one. I for one see no distinction; and since I feel strongly that Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440, caused a severe dislocation in the federal scheme of arbitration of labor disputes, I think we should not set our feet on a path that may well lead to the eventual reaffirmation of the principles of that case. My Brother STEWART expressly reserves the question whether the present order is an injunction prohibited by the Norris-LaGuardia Act. Despite this qualification, once we have held that the order constitues an 'injunction,' the District Court on remand would likely consider Sinclair, which is not overruled, controlling and apply it to preclude the issuance of another order.
41
We held in Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972, that a failure to arbitrate was not part and parcel of the abuses against which the Norris-LaGuardia Act was aimed. We noted that Congress, in fashioning § 301 of the Labor Management Relations Act, was seeking to encourage collective bargaining agreements in which the parties agree to refrain from unilateral disruptive action, such as a strike, with respect to disputes arbitrable by the agreement. Hence, if unions could break such agreements with impunity, the congressional purpose might well be frustrated. Although § 301 does not in terms address itself to the question of remedies, it commands the District Court to hold the parties to their contractual scheme for arbitration—the 'favored process for settlement,' as my Brother BRENNAN said in dissent in Sinclair, 370 U.S., at 216, 82 S.Ct., at 1340. I agree with his opinion that there must be an accommodation between the Norris-LaGuardia Act and all the other legislation on the books dealing with labor relations. We have had such an accommodiation in the case of railroad disputes. See Brotherhood of Railroad Trainmen v. Chicago R. & I.R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622. With respect to § 301, 'Accommodation requires only that the anti-injunction policy of Norris-LaGuardia not intrude into areas, not vital to its ends, where injunctive relief is vital to a purpose of § 301; it does not require unconditional surrender.' 370 U.S., at 225, 82 S.Ct., at 1344.
42
It would be possible, of course, to distinguish Sinclair from the instant cases. In these cases, the relief sought was a mandate against repetition of strikes over causes covered by the arbitrator's award. The complaint below alleged that the union's 'refusal to comply with the terms of the Arbitrator's Award constitutes a breach of the applicable provisions of the current Collective Bargaining Agreement * * *.' Respondent asked that the court 'enter an order enforcing the Arbitrator's Award and that plaintiff may have such other and further relief as may be justified.' We do not review here, as in Sinclair, a refusal to enter an order prohibiting unilateral disruptive action on the part of a union before that union has submitted its grievances to the arbitration procedure provided by the collective bargaining agreement. Rather, the union in fact submitted to the arbitration procedure established by the collective bargaining agreement but, if the allegations are believed, totally frustrated the process by refusing to abide by the arbitrator's decision. Such a 'heads I win, tails you lose,' attitude plays fast and loose with the desire of Congress to encourage the peaceful and orderly settlement of labor disputes.
43
The union, of course, may have acted in good faith, for the new dispute may one which precipitated the award. Whether or not it was, we do not know. To make the accommodation which the Textile Workers case visualizes as necessary between the policy of encouraging arbitration on the one hand and the Norris-LaGuardia restrictions on the other, the basic case must go back for further and more precise findings and the contempt case must obviously be reversed. See Sinclair, 370 U.S., at 228—229, 82 S.Ct., at 1346 (dissenting opinion).
1
The 1959 agreement provided in Article 9(a) that 'Men employed from Monday to Sunday, inclusive, shall be guaranteed four (4) hours' pay for the period between 8:00 A.M. and 12:00 Noon, regardless of any condition.' Article 9(h) provided that 'If a ship is knocked off on account of inclement weather by the Ship's Master or his authorized representative, the men will be paid the applicable guarantee, but in the event the men knock off themselves, they will be paid only for the time worked, regardless of guarantee provided for in this Agreement.'
A Memorandum of Settlement, effective October 1, 1964, provided in Article 10(5) that '(f)or work commencing at 8 AM on Monday or at 8 AM on the day following a holiday,' employers would 'have the right because of non-arrival of a vessel in port to cancel the gangs by 7:30 A.M.' Article 10(6) then stated: 'Gangs ordered for an 8 AM start Monday through Friday can be set back at 7:30 AM on the day of work to commence at 1 PM at which time a four hour guarantee shall apply. A one hour guarantee shall apply for the morning period unless employed during the morning period.'
Article 16 of the Memorandum of Settlement adopted the provisions of the 1959 agreement by reference, with the proviso that, in cases of conflict, 'the provisions of (the Memorandum) shall prevail.'
2
Article 28 of the 1959 agreement, unchanged by the Memorandum of Settlement, provided:
'All disputes and grievances of any kind or nature whatsoever arising under the terms and conditions of this agreement, and all questions involving the interpretation of this agreement other than any disputes or grievances arising under the terms and conditions of paragraph 13(d) hereof, shall be referred to a Grievance Committee, which shall consist of two members selected by the Employers and two members selected by the Union. * * * Should the Grievance Committee be unable to resolve the issue submitted and should neither party request an immediate decision from the Arbitrator, then the grievance or dispute shall be submitted to a Joint Grievance Panel consisting of three representatives of the Association and three representatives of the Union. To the end that there shall be no work interruptions and to the end that there shall be limited necessity for arbitration, the Panel shall make every effort to resolve all grievances or disputes which could not be resolved by the Grievance Committee. * * * Should the Panel be unable to resolve a grievance or dispute which arose in the previous two weeks, or be unable to resolve a grievance or dispute anticipated in the ensuing two weeks, the dispute of grievance, including matters of interpretation of the contract, shall be referred to an Impartial Arbitrator who shall be selected to serve for a period of one year from a panel of five arbitrators to be submitted by the American Arbitration Association. * * * The Arbitrator thus selected shall conduct his hearings and procedures in accordance with the Rules of the American Arbitration Association, except that he shall be obliged to render his decision within forty-eight hours of the conclusion of his hearings or procedures. * * * Should the terms and conditions of this agreement fail to specifically provide for an issue in dispute, or should a provision of this agreement be the subject of disputed interpretation, the Arbitrator shall consider port practice in resolving the issue before him. If the Arbitrator determines that there is no port practice to assist him in determining an issue not specifically provided for in the collective bargaining agreement, or no port practice to assist him in resolving an interpretation of the agreement, the issue shall become the subject of negotiation between the parties. There shall be no strike and no lock-out during the pendency of any dispute or issue while before the Grievance Committee, the Joint Panel, or the Arbitrator.'
3
The text of the arbitrator's award was this:
'The contention of the Employer, the Philadelphia Marine Trade Association, is hereby sustained and it is the Arbitrator's determination that Section 10(6) of the Memorandum of Settlement dated February 11, 1965, providing gangs 'ordered for an 8 AM start Monday through Friday can be set back at 7:30 AM on the day of work to commence at 1 PM, at which time a 4 hours guarantee shall apply. A 1 hour guarantee shall apply for the morning period unless employed during the morning period,' may be invoked by the Employer without qualification.
'The contention of the Union, the International Longshoremen's Association, Local No. 1291, that Section 10(6) of the Memorandum of Settlement dated February 11, 1965, referred to above, can only be invoked by the Employer because of non-arrival of a vessel in port, is denied.'
4
The union's position in this regard was twofold. It maintained, first, that even if the July and September disputes had been factually identical to that of April, it was 'quite clear * * * from past practice and from the agreement itself that * * * the award as to (any given) dispute relates only to that dispute and is not controlling so far as any future dispute is concerned.' The union contended, second, that the disputes were factually different in at least one crucial respect: In the later disputes, the longshoremen were not notified of the set-back by 7:30 a.m., as required by Article 10 of the Memoramdum of Settlement. The arbitrator's award, by its own terms, dealt only with situations in which longshoremen were 'set back at 7:30 a.m.' Counsel for the association seemingly agreed that the question of notice thus presented an independently arbitrable issue. He said: '(T)he factual issues as far as whether or not there was notice * * * should be brought up under the grievance procedure which is in the contract.' 'The question of notification,' he agreed, 'was not a matter in the arbitrator's award.' He stated that the time and method of notification had not changed from April to September but he conceded that the problem 'was never brought to (the arbitrator's) attention by the parties.' On this basis, counsel for the union said that his adversary had 'admitted on the stand that this situation goes beyond the arbitrator's award.' The District Judge thought otherwise: 'You have added words to his mouth, my dear boy, and that you can't do.'
5
The full text of the decree was this:
'ORDER—September 15, 1965
'And Now to Wit, This 15th day of September, 1965, after hearing, it is hereby ordered, adjudged and decreed that the Arbitrator's Award in the matter of arbitration between the Philadelphia Marine Trade Association and International Longshoremen's Association Local 1291, issued on June 11, 1965, be specifically enforced by defendant, International Longshoremen's Association Local 1291, and the said defendant is hereby ordered to comply with and to abide by the said Award.
'By the Court.
'Ralph C. Body, J.'
6
At the hearing following the July work stoppage, the District Judge had agreed that, as to factual situations going 'beyond the arbitrator's award, the union is not bound.' The union thus attempted to prove at the contempt hearing on March 1 that the February disputes, like those of the previous July and September, went beyond the arbitrator's award in that they raised a separate question of notice. Cf. n. 4, supra. The District Judge did not comment upon this aspect of the case in holding the union guilty of contempt.
7
365 F.2d 295, 368 F.2d 932.
8
386 U.S. 907, 87 S.Ct. 860, 17 L.Ed.2d 782; 387 U.S. 916, 87 S.Ct. 2031, 18 L.Ed.2d 968.
9
Other issues have been argued as well. In light of our disposition of these cases, we do not reach them.
10
Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972, upheld federal judicial power to issue such an enforcement order. In Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 782; 387 U.S. 916, 87 S.Ct. 2031, granted in' Lincoln Mills as 'a mandatory injunction to carry out an agreement to arbitrate.' Id., at 212, 82 S.Ct., at 1338.
11
38 Stat. 738, 28 U.S.C. § 383 (1940 ed.).
12
H.R.Rep. No. 627, 63d Cong., 2d Sess., 26 (1914); S.Rep. No. 698, 63d Cong., 2d Sess., 21 (1914).
13
Regal Knitwear Co. v. National Labor Relations Board, 324 U.S. 9, 13—15, 65 S.Ct. 478, 480—482, 89 L.Ed. 661.
14
See e.g., International Brotherhood of Teamsters, Chauffeurs, etc. v. Keystone F. Lines, 123 F.2d 326, 330 (C.A.10th Cir.); NLRB v. Birdsall-Stockdale Motor Co., 208 F.2d 234, 236 237, 46 A.L.R.2d 587 (C.A.10th Cir.); English v. Cunningham, 106 U.S.App.D.C. 70, 77—78, 269 F.2d 517, 524—525. Cf. Brumby Metals, Inc. v. Bargen, 275 F.2d 46, 48—50 (C.A.7th Cir.); Miami Beach Federal Savings & Loan Assn. v. Callander, 256 F.2d 410, 415 (C.A.5th Cir.).
15
365 F.2d 295, 301.
| 67
|
389 U.S. 143
88 S.Ct. 325
19 L.Ed.2d 347
H. Samuel HACKINv.ARIZONA et al.
No. 523.
Supreme Court of the United States
October Term, 1967.
November 13, 1967
PER CURIAM.
1
The motion to dispense with printing the jurisdictional statement is granted. The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.
2
Mr. Justice DOUGLAS, dissenting.
3
Appellant, who is not a licensed attorney, appeared in a state court habeas corpus proceeding on behalf of an indigent prisoner. The indigent prisoner was being held for extradition to Oklahoma, where he had been convicted of murder and had escaped from custody. Appellant had previously attempted to secure for the prisoner appointed counsel to argue in court the prisoner's contention that his Oklahoma conviction was invalid due to denial of certain constitutional rights. But in Arizona an indigent has no right to appointed counsel at habeas corpus proceedings1 (e. g., Palmer v. State, 99 Ariz. 93, 407 P.2d 64) including habeas corpus proceedings that are part of the extradition process (Applications of Oppenheimer, 95 Ariz. 292, 389 P.2d 696). Unable to obtain counsel for the indigent, appellant chose to represent him himself and was convicted of a misdemeanor for violation of an Arizona statute providing that 'No person shall practice law in this state unless he is an active member of the state bar in good standing. * * *' (Hackin v. State, 102 Ariz. 218, 427 P.2d 910, quoting Ariz.Rev.Stat.Ann. § 32-261, subsec. A.
4
Appellant contends that this statute suffers from overbreadth and vagueness and is unconstitutional on its face because it interferes with the rights of the destitute and ignorant—those who cannot acquire the services of counsel—to obtain redress under the law for wrongs done to them. He also alleges the statute is unconstitutional as applied here, where appellant acted on behalf of the indigent prisoner only after exhaustive efforts to obtain appointed counsel. Appellant is no stranger to the law. He graduated from an unaccredited law school but was refused admission to the Arizona Bar. See Hackin v. Lockwood, 361 F.2d 499 (C.A.9th Cir.), cert. denied, 385 U.S. 960, 87 S.Ct. 396, 17 L.Ed.2d 305.
5
The claim that the statute deters constitutionally protected activity is not frivolous. Whether a State, under guise of protecting its citizens from legal quacks and charlatans, can make criminals of those who, in good faith and for no personal profit, assist the indigent to assert their constitutional rights is a substantial question this Court should answer.
6
Rights protected by the First Amendment include advocacy and petition for redress of grievances (NAACP v. Button, 371 U.S. 415, 429, 83 S.Ct. 328, 9 L.Ed.2d 405; Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 9 L.Ed.2d 697), and the Fourteenth Amendment ensures equal justice for the poor in both criminal and civil actions (see Williams v. Shaffer, 385 U.S. 1037, 87 S.Ct. 772, 17 L.Ed.2d 683 (dissenting opinion)). But to millions of Americans who are indigent and ignorant—and often members of minority groups—these rights are meaningless. They are helpless to assert their rights under the law without assistance. They suffer discrimination in housing and employment, are victimized by shady consumer sales practices, evicted from their homes at the whim of the landlord, denied welfare payments, and endure domestic strife without hope of the legal remedies of divorce, maintenance, or child custody decrees.2
7
If true equal protection of the laws is to be realized, an indigent must be able to obtain assistance when he suffers a denial of his rights. Today, this goal is only a goal. Outside the area of criminal proceedings covered by our decisions in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, and Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, counsel is seldom available to the indigent. As this Court has recognized, there is a dearth of lawyers who are willing, voluntarily, to take on unprofitable and unpopular causes. NAACP v. Button, 371 U.S., at 443, 83 S.Ct. 328. See also Johnson v. Avery, 252 F.Supp. 783, 784 (D.C.M.D.Tenn.).
8
Some States, aware of the acute shortage of lawyers to help the indigent, have utilized the abilities of qualified law students to advise indigents and even to represent them in court in limited circumstances.3 But where this practice is not sanctioned by law, the student advocate for the poor may be subjected to criminal penalty under broadly drafted statutes prohibiting unauthorized practice of law.
9
There is emerging, particularly in the ghetto areas of our cities, a type of organization styled to bring a new brand of legal assistance to the indigent. These groups, funded in part by the federal Office of Economic Opportunity, characteristically establish neighborhood offices where the poor can come for assistance. They attempt to dispense services on a comprehensive integrated scale, using lawyers, social workers, members of health professions, and other nonlawyer aides.4 These new and flexible approaches to giving legal aid to the poor recognize that the problems of indigents—although of the type for which an attorney has traditionally been consulted—are too immense to be solved solely by members of the bar. The supply of lawyer manpower is not nearby large enough.5 But the necessary involvement of lay persons in these programs threatens their success. Lay involvement was recently cited by New York's Appellate Division as one ground for denying the application of a proposed corporate aid-to-in-digent program for New York City. Matter of Community Action for Legal Services, 26 A.D.2d 354, 274 N.Y.S.2d 779; contra, In re Community Legal Services, Court of Common Pleas of Philadelphia County, No. 4968, March Term, 1966 (decided May 10, 1967).6
10
The so-called 'legal' problem of the poor is often an unidentified strand in a complex of social economic, psychological, and psychiatric problems. Identification of the 'legal' problem at times is for the expert. But even a 'lay' person can often perform that function and mark the path that leads to the school board, the school principal, the welfare agency, the Veterans Administration, the police review board, or the urban renewal agency.7 If he neither solicits nor obtains a fee for his services, why should he not be free to act? Full-fledged representation in a battle before a court or agency requires professional skills that laymen lack; and therefore the client suffers, perhaps grievously, if he is not represented by a lawyer. But in the intermediate zone where the local pastor, the social worker, or best friend8 commonly operates, is there not room for accommodation? Dean Charles E. Ares recently said:
11
'* * * [T]he structure of the legal profession is middle class in its assumptions. We assume that the lawyer can sit quietly in his office awaiting the knock on the door by a client who has discovered that he has a legal problem and has found the way to the lawyer's office. * * * [T]his assumption is not valid for the great mass of people who live in poverty in the United States. * * * [T]he ways in which this structure can be changed open exiting and interesting prospects.' Poverty, Civil Liberties, and Civil Rights: A Symposium, 41 N.Y.U.L.Rev. 328, 346 (1966).
12
Moreover, what the poor need, as much as our corporate grants, is protection before they get into trouble and confront a crisis. This means 'political leadership' for the 'minority poor.' Id., at 351. Lawyers will play a role in that movement; but so will laymen. The line that marks the area into which the layman may not step except at his peril is not clear. I am by no means sure the line was properly drawn by the court below where no lawyer could be found and this layman apparently served without a fee.
13
Legal representation connotes a magic it often does not possess—as for example, the commitment procedure in Texas, where, by one report, 66 seconds are given to a case, the lawyer usually not even knowing his client and earning a nice fee for passive participation. Weihofen, Mental Health Service for the Poor, 54 Calif.L.Rev. 920, 938-939 (1966). If justice is the goal, why need a layman be barred here?
14
Broadly phrased unauthorized-practice-of-law statutes such as that at issue here could make criminal many of the activities regularly done by social workers who assist the poor in obtaining welfare and attempt to help them solve domestic problems.9 Such statutes would also tend to deter programs in which experienced welfare recipients represent other, less articulate, recipients before local welfare departments.10
15
As this Court's decision in NAACP v. Button, supra, and Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89, indicate, state provisions regulating the legal profession will not be permitted to act as obstacles to the rights of persons to petition the courts and other legal agencies for redress. Yet statutes with the broad sweep of the Arizona provision now before this Court would appear to have the potential to 'freeze out' the imaginative new attempts to assist indigents realize equal justice, merely because lay persons participate.11 Cf. NAACP v. Button, 371 U.S., at 436, 83 S.Ct. 328. As we said in Button, the threat of sanctions may deter as forcefully as the imposition of the sanctions. Id., at 433, 83 S.Ct. 328. In such circumstances, 'the State may prevail only upon showing a subordinating interest which is compelling.' Bates v. City of Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 4 L.Ed.2d 480. Certainly the States have a strong interest in preventing legally untrained shysters who pose as attorneys from milking the public for pecuniary gain. Cf. NAACP v. Button, at 441, 83 S.Ct. 328. But it is arguable whether this policy should support a prohibition against charitable efforts of nonlawyers to help the poor. Cf. Opinion of the Justices to the Senate, 289 Mass. 607, 615, 194 N.E. 313, 317-318. It may well be that until the goal of free legal assistance to the indigent in all areas of the law is achieved, the poor are not harmed by well-meaning, charitable assistance of laymen. On the contrary, for the majority of indigents, who are not so fortunate to be served by neighborhood legal offices, lay assistance may be the only hope for achieving equal justice at this time.
16
In sum, I find the questions posed in this appeal both timely and troublesome; and it would appear that appellant has standing to raise the indigent's First Amendment rights of advocacy and petition of redress and of equal justice. See NAACP v. Button, supra, at 428, 83 S.Ct. 328; Griswold v. State of Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 14 L.Ed.2d 510. Since the very nature of the inequity suffered by the poor precludes them from asserting their rights to legal assistance in court, why should the layman who steps up to speak for them not be held to be asserting their constitutional rights? Johnson v. Avery, supra, 252 F.Supp. at 786. Cf. Barrows v. Jackson, 346 U.S. 249, 257, 73 S.Ct. 1031, 97 L.Ed. 1586. Accordingly, I would hear this appeal.
1
Appellant's conviction for unauthorized practice of law would seem to be the result of Arizona's restrictive reading of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. In State v. Bost, 2 Ariz.App. 431, 409 P.2d 590, the court held Gideon inapplicable to extradition proceedings because they were ministerial rather than judicial in nature. Some members of this Court have expressed doubt whether pigeonholing criminal proceedings into categories such as felony, misdemeanor, habeas corpus, etc., is a proper means for the States to develop the full scope of the Gideon rule. See DeJoseph v. Connecticut, 385 U.S. 982, 87 S.Ct. 526, 17 L.Ed.2d 443, and Winters v. Beck, 385 U.S. 907, 87 S.Ct. 207, 17 L.Ed.2d 137 (dissenting opinions of MR. JUSTICE STEWART). Had Arizona courts approached the problem in that light rather than selecting between the labels 'ministeral' and 'judicial,' they might have concluded that indigents in the position of the prisoner whom appellant aided here are entitled to counsel under Gideon.
2
See Williams v. Shaffer, 385 U.S. 1037, 1040, 87 S.Ct. 772, 17 L.Ed.2d 683 (dissenting opinion); In re Community Legal Services, Court of Common Pleas of Philadelphia County (No. 4968, March Term, 1966; decided May 10, 1967). See also Pye, The Role of Legal Services in the Antipoverty Program, 31 Law & Contemp.Prob. 211, 216-217 (1966): 'The poor man because of his lack of education and social status, may need representation in matters such as a dispute with a high school principal over the dismissal of a child, or the assertion of a complaint for a violation of the health or building code by a landlord under circumstances where the better educated citizen could speak for himself.' For broad discussion of the many and varied areas where the poor need assistance, see Symposium on Law of the Poor, 54 Calif.L.Rev. 319 et seq. (1966); Dorsen, ed., Poverty, Civil Liberties, and Civil Rights: A Symposium, 41 N.Y.U.L.Rev. 328 (1966); Cahn & Cahn, The War on Poverty: A Civilian Perspective, 73 Yale L.J. 1317 (1964); McCalpin, A Revolution in the Law Practice?, 15 Clev.Mar.L.Rev. 203 (1966); Carlin & Howard, Legal Representation and Class Justice, 12 U.C.L.R.L.Rev. 381 (1965); Sparer, Thorkelson & Weiss, The Lay Advocate, 43 U.Det.L.J. 493 (1966); Levi, Problems Relating to Real Property, in National Conference on Law and Poverty Proceedings 1 (1965); Dunham, Consumer Credit Problems of the Poor—Legal Assistance as an Aid in Law Reform, id., at 9; Polier, Problems Involving Family and Child, id., at 14.
3
See, e. g., Matter of Legal Aid Society of City of Albany, 27 A.D.2d 687, 277 N.Y.S.2d 632; Matter of Cornell Legal Aid Clinic, 26 A.D.2d 790, 273 N.Y.S.2d 444; Monaghan, Gideon's Army: Student Soldiers, 45 B.U.L.Rev. 445 (1965); Broden, A Role for Law Schools in OEO's Legal Services Program, 41 Notre Dame Law 898 (1966); Cleary, Law Students in Criminal Law Practice, 16 DePaul L.Rev. 1 (1966); Note, 12 Wayne L.Rev. 519 (1966).
4
See generally Cahn & Cahn, supra, n. 2, at 1334-1352; Carlin & Howard, supra, n. 2, at 432-436; Rosenblum, Controlling the Bureaucracy of the Antipoverty Program, 31 Law & Contemp.Prob. 187, 208 (1966); Note, Ethical Problems Raised by the Neighborhood Law Office, 41 Notre Dame Law. 961 (1966); Paulsen, Law Schools and the War on Poverty, in National Conference on Law and Poverty Proceedings 77 (1965).
The O. E. O. Guidelines for Legal Services Programs states that the programs are expected to be a component of a community action agency run, in part, by representatives of labor, business, religion, minority groups, and the poor. (P. 5.) Residents of the depressed area served by the legal office are expected to participate directly in the legal services program. (P. 10.) 'The poor must be represented on the board or policy-making committee of the program to provide legal services, just as they are represented on the policy-making body of the community action agency.' (P. 11.) 'Whenever possible, the board of the legal services program should include at least one representative from each of the areas or neighborhoods with a substantial population to be served.' (P. 12.) The staff of the neighborhood legal office may utilize the talents of law schools (p. 24) and 'may include a person trained in the field of social work' (p. 29) plus 'interviewers, investigators, law students, neighborhood aides, and trained personnel from other disciplines.' (P. 31.)
5
See Cahn & Cahn, What Price Justice: The Civilian Perspective Revisited, 41 Notre Dame Law. 927 (1966). 'Finally, with respect to manpower, we have created an artifical shortage by refusing to learn from the medical and other professions and to develop technicians, nonprofessionals and lawyer-aides—manpower roles to carry out such functions as: informal advocate, technician, counsellor, sympathetic listener, investigator, researcher, form writer, etc.' (P. 934.) '[T]he possibility of advancing the cause of justice through increasing lay involvement in fact finding, adjudication and arbitration, should not be sacrificed a priori out of fear of abuse.' (P. 951.) See also Ginsberg & Shiffman, Manpower and Training Problems in Combating Poverty, 31 Law & Contemp.Prob. 159 (1966).
6
Zimroth, Group Legal Services and the Constitution, 76 Yale L.J. 966, 968 (1967), reports that the O. E. O. legal services programs involving lay persons have also survived challenges in Houston, Texas, and Modesto, California.
7
See Frankel, Experiments in Serving the Indigent, in National Conference on Law and Poverty Proceedings 69, 75-76 (1965): '[W]e lawyers must certainly confront constructively the idea that what we have traditionally regarded as legal business cannot permanently be so regarded. The needs of the poor for services in matters that are somehow legal appear pretty clearly to be enormous. Among those needs are many kinds of matters that are narrow, that are specialized, and can be routinized. Matters related to housing, to workmen's compensation, to consumer problems are a few that one could name. * * * [W]e should attempt to create a class of legal technicians who can handle, under lawyers' supervision, some of the problems that have thus far seemed to us to be exclusively the province of the lawyer. I think we have an important creative function to perform in trying to mark out these areas where lawyers are not really needed.'
See Paulsen, The Law Schools and the War on Poverty, in National Conference on Law and Poverty Proceedings 77, 81 (1965): 'Services to the poor will undoubtedly call for advocacy and advice by lay persons as well as lawyers. A lawyer's time is costly. Not every problem thrown up by legal arrangements requires the skill and costly time of a law-trained person. We can, perhaps, expect the creation of advice centers operated by laymen not unlike Britain's Citizen's Advice Bureaus.'
8
In habeas corpus proceedings, 'the practice of a next friend applying for a writ is ancient and fully accepted.' United States ex rel. Bryant v. Houston, 273 F. 915, 916 (C.A.2d Cir.). It rests on the premise that '[w]ithout some assistance, their right to habeas corpus in many instances becomes empty and meaningless.' Johnson v. Avery, 252 F.Supp. 783, 784 (D.C.M.D.Tenn.). The next-friend doctrine was recognized at common law and is given effect in most jurisdictions today, either by statute or by court decision. See Collins v. Traeger, 27 F.2d 842, 843 (C.A.9th Cir.); Ex parte Dostal, 243 F. 664, 668 (D.C.N.D.Ohio); State ex rel. Deeb v. Fabisinski, 111 Fla. 454, 461, 152 So. 207, 209; In re Nowack, 274 Mich. 544, 549, 265 N.W. 459, 461; In re Nahl v. Delmore, 49 Wash.2d 318, 301 P.2d 161; 28 U.S.C. § 2242.
An Arizona statute provides that application for habeas corpus may be made by the person detained 'or by some person in his behalf. * * *' Ariz.Rev.Stat.Ann. § 13-2002. The court below recognized that this statute precluded prosecution of appellant for writing and filing the writ application on behalf of the indigent prisoner. Hackin v. State, 102 Ariz., at 219, 427 P.2d, at 911. But the statute was held not to authorize appellant to argue the matter in court. Id., at 220, 427 P.2d, at 912.
9
'Social workers in public assistance may already be required to practice law as substantially as if they were in a courtroom. In making an initial determination of an applicant's eligibility, the public assistance worker must complete the applicant's financial statement. 'Every question, or nearly every question, on the financial statement, is a legal question. When the social worker advises, or even discusses the questions or answers, he may very likely be giving legal advice.' The private social worker who advises an applicant that he should apply, how to apply, what to answer and how to appeal if the application is rejected is also giving 'legal' advice. When he argues with the public worker on behalf of the applicant, he is giving representation. When and if he goes to a hearing on behalf of the applicant, he is surely engaging in advocacy.' Sparer, Thorkelson & Weiss, supra, n. 2, at 499-500. See also McRae & Linde, An Emerging Joint Venture: Lawyers and Social Workers, 48 J.Am.Jud.Soc. 231 (1965): Rosenblum, supra, n. 4, at 208.
10
Sparer, Thorkelson & Weiss, supra, n. 2, at 507.
11
Such statutes have also been utilized for attack on attorneys themselves who defend locally unpopular causes, such as civil rights. See Washington Post, Sept. 20, 1967, § A, at 10, col. 1, reporting a Louisiana prosecution of a civil rights lawyer for 'unauthorized practice.' Cf. NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328.
| 89
|
389 U.S. 121
88 S.Ct. 265
19 L.Ed.2d 329
UNITED STATES, Petitioner,v.R. B. RANDS et ux.
No. 54.
Argued Oct. 18, 1967.
Decided Nov. 13, 1967.
Robert S. Rifkind, Washington, D.C., for petitioner.
Alex L. Parks, Portland, Or., for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
In this case the Court is asked to decide whether the compensation which the United States is constitutionally required to pay when it condemns riparian land includes the land's value as a port site. Respondents owned land along the Columbia River in the State of Oregon. They leased the land to the State with an option to purchase, it apparently being contemplated that the State would use the land as an industrial park, part of which would function as a port. The option was never exercised, for the land was taken by the United States in connection with the John Day Lock and Dam Project, authorized by Congress as part of a comprehensive plan for the development of the Columbia River. Pursuant to statute1 the United States then conveyed the land to the State of Oregon at a price considerably less than the option price at which respondents had hoped to sell. In the condemnation action, the trial judge determined that the compensable value of the land taken was limited to its value for sand, gravel, and agricultural purposes and that its special value as a port site could not be considered. The ultimate award was about one-fifth the claimed value of the land if used as a port. The Court of Appeals for the Ninth Circuit reversed, apparently holding that the Government had taken from respondents a compensable right of access to navigable waters and concluding that 'port site value should be compensable under the Fifth Amendment.' 367 F.2d 186, 191 (1966). We granted certiorari, 386 U.S. 989, 87 S.Ct. 1308, 18 L.Ed.2d 334, because of a seeming conflict between the decision below and United States v. Twin City Power Co., 350 U.S. 222, 76 S.Ct. 259, 100 L.Ed. 240 (1956). We reverse the judgment of the Court of Appeals because the principles underlying Twin City govern this case and the Court of Appeals erred in failing to follow them.
2
The Commerce Clause confers a unique position upon the Government in connection with navigable waters. 'The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States * * *. For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress.' Gilman v. City of Philadelphia, 3 Wall. 713, 724—725, 18 L. Ed. 96 (1866). This power to regulate navigation confers upon the United States a 'dominant servitude,' FPC v. Niagara Mohawk Power Corp., 347 U.S. 239, 249, 74 S.Ct. 487, 493, 98 L.Ed. 686 (1954), where extends to the entire stream and the stream bed below ordinary high-water mark. The proper exercise of this power is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject. United States v. Chicago, M., St. P & P.R. Co., 312 U.S. 592, 596—597, 61 S.Ct. 772, 775, 85 L.Ed. 1064 (1941); Gibson v. United States, 166 U.S. 269, 275—276, 17 S.Ct. 578, 580, 41 L.Ed. 996 (1897). Thus, without being constitutionally obligated to pay compensation, the United States may change the course of a navigable stream. State of South Carolina v. State of Georgia, 93 U.S. 4, 23 L.Ed. 782 (1876), or otherwise impair or destroy a riparian owner's access to navigable waters, Gibson v. United States, 166 U.S. 269, 17 S.Ct. 578 (1897); Scranton v. Wheeler, 179 U.S. 141, 21 S.Ct. 48, 45 L.Ed. 126 (1900); United States v. Commodore Park, Inc., 324 U.S. 386, 65 S.Ct. 803, 89 L.Ed. 1017 (1945), even though the market value of the riparian owner's land is substantially diminished.
3
The navigational servitude of the United States does not extend beyond the high-water mark. Consequently, when fast lands are taken by the Government, just compensation must be paid. But 'just as the navigational privilege permits the Government to reduce the value of riparian lands by denying the riparian owner access to the stream without compensation for his loss, * * * it also permits the Government to disregard the value arising from this same fact of riparian location in compensating the owner when fast lands are appropriated.' United States v. Virginia Elec. & Power Co., 365 U.S. 624, 629, 81 S.Ct. 784, 788, 5 L.Ed.2d 838 (1961). Specifically, the Court has held that the Government is not required to give compensation for 'water power' when it takes the riparian lands of a private power company using the stream to generate power. United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 73—74, 33 S.Ct. 667, 676, 57 L.Ed. 1063 (1913). Nor must it compensate the company for the value of its uplands as a power plant site. Id., at 76, 33 S.Ct. at 677. Such value does not 'inhere in these parcels as upland,' but depends on use of the water to which the company has no right as against the United States: 'The government had dominion over the water power of the rapids and falls, and cannot be required to pay any hypothetical additional value to a riparian owner who had no right to appropriate the current to his own commercial use.' Ibid.
4
All this was made unmistakably clear in United States v. Twin City Power Co., 350 U.S. 222, 76 S.Ct. 259, 100 L.Ed. 240 (1956). The United States condemned a promising site for a hydroelectric power plant and was held to be under no obligation to pay for any special value which the fast lands had for power generating purposes. The value of the land attributable to its location on the stream was 'due to the flow of the stream; and if the United States were required to pay the judgments below, it would be compensating the landowner for the increment of value added to the fast lands if the flow of the stream were taken into account.' 350 U.S., at 226, 76 S.Ct., at 261.
5
We are asked to distinguish between the value of land as a power site and its value as a port site. In the power cases, the stream is used as a source of power to generate electricity. In this case, for the property to have value as a port, vessels must be able to arrive and depart by water, meanwhile using the waterside facilities of the port. In both cases, special value arises from access to, and use of, navigable waters. With regard to the constitutional duty to compensate a riparian owner, no distinction can be drawn. It is irrelevant that the licensing authority presently being exercised over hydroelectric projects may be different from, or even more stringent than, the licensing of port sites. We are dealing with the constitutional power of Congress completely to regulate navigable streams to the total exclusion of private power companies or port owners. As was true in Twin City, if the owner of the fast lands can demand port site value as part of his compensation, 'he gets the value of a right that the Government in the exercise of its dominant servitude can grant or withhold as it chooses. * * * To require the United States to pay for this * * * value would be to create private claims in the public domain.' 350 U.S., at 228, 76 S.Ct., at 263.
6
Respondents and the Court of Appeals alike have found Twin City inconsistent with the holding in United States v. River Rouge Improvement Co., 269 U.S. 411, 46 S.Ct. 144, 70 L.Ed. 339 (1926). In this case, the Government took waterfront property to widen and improve the navigable channel of the Rouge River. By reason of the improvements, other portions of the riparian owner's property became more valuable because they were afforded direct access to the stream for the building of docks and other purposes related to navigation. Pursuant to § 6 of the Rivers and Harbors Act of 1918,2 the compensation award for the part of the property taken by the Government was reduced by the value of the special and direct benefits to the remainder of the land. The argument here seems to be that if the enhancement in value flowing from a riparian location is real enough to reduce the award for another part of the same owner's property, consistency demands that these same values be recognized in the award when any riparian property is taken by the Government. There is no inconsistency. Twin City and its predecessors do not deny that access to navigable waters may enhance the market value of riparian property. See United States v. Commodore Park, Inc., 324 U.S., at 388, 390, 65 S.Ct., at 804, 805. And, in River Rouge, it was recognized that state law may give the riparian owner valuable rights of access to navigable waters good against other riparian owners or against the State itself. 269 U.S., at 418—419, 46 S.Ct., at 146—147. But under Twin City and like cases, these rights and values are not assertable against the superior rights of the United States, are not property within the meaning of the Fifth Amendment, and need not be paid for when appropriated by the United States. Thus, when only part of the property is taken and the market value of the remainder is enhanced by reason of the improvement to navigable waters, reducing the award by the amount of the increase in value simply applies in another context the principle that special values arising from access to a navigable stream are allocable to the public, and not to private interest. Otherwise the private owner would receive a windfall to which he is not entitled.
7
Our attention is also directed to Monongahela Navigation Co. v. United States, 148 U.S. 312, 13 S.Ct. 622, 37 L.Ed. 463 (1893), where it was held that the Government had to pay the going-concern value of a toll lock and dam built at the implied invitation of the Government, and to the portion of the opinion in Chandler-Dunbar approving an award requiring the Government to pay for the value of fast lands as a site for a canal and lock to bypass the falls and rapids of the river. Monongahela is not in point, however, for the Court has since read it as resting 'primarily upon the doctrine of estoppel * * *.' Omnia Commercial Co., Inc. v. United States, 261 U.S. 502, 513—514, 43 S.Ct. 437, 439, 67 L.Ed. 773 (1923). The portion of Chandler-Dunbar relied on by respondents was duly noted and dealt with in Twin City itself, 350 U.S. 222, 226, n., 76 S.Ct. 259, 261 (1956). That aspect of the decision has been confined to its special facts, and, in any event, if it is at all inconsistent with Twin City, it is only the latter which survives.
8
Finally, respondents urge that the Government's position subverts the policy of the Submerged Lands Act,3 which confirmed and vested in the States title to the lands beneath navigable waters within their boundaries and to natural resources within such lands and waters, together with the right and power to manage, develop, and use such lands and natural resources. However, reliance on that Act is misplaced, for it expressly recognized that the United States retained 'all its navigational servitude and rights in and powers of regulation and control of said lands and navigable waters for the constitutional purposes of commerce, navigation, national defense, and internatonal affairs, all of which shall be paramount to, but shall not be deemed to include, proprietary rights of ownership * * *.'4 Nothing in the Act was to be construed 'as the release or relinquishment of any rights of the United States arising under the constitutional authority of Congress to regulate or improve navigation, or to provide for flood control, or the production of power.'5 The Act left congressional power over commerce and the dominant navigational servitude of the United States precisely where it found them.
9
For the foregoing reasons, the judgment of the Court of Appeals is reversed and the case remanded with direction to reinstate the judgment of the District Court.
10
Reversed and remanded.
11
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
1
74 Stat. 486, 33 U.S.C. 578.
2
40 Stat. 911, 33 U.S.C. § 595.
3
67 Stat. 29, 43 U.S.C. §§ 1301—1343.
4
67 Stat. 32, 43 U.S.C. § 1314.
5
67 Stat. 31, 43 U.S.C. § 1311(d).
| 34
|
389 U.S. 90
88 S.Ct. 269
19 L.Ed.2d 305
Honorable Hubert L. WILL, Judge, United States District Court for the Northern District of Illinois, Petitioner,v.UNITED STATES.
No. 36.
Argued Oct. 17 and 18, 1967.
Decided Nov. 13, 1967.
Harvey M. Silets, Chicago, Ill., for petitioner.
Richard A. Posner, Washington, D.C., for respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
The question in this case is the propriety of a writ of mandamus issued by the Court of Appeals for the Seventh Circuit to compel the petitioner, a United States District Judge, to vacate a portion of a pretrial order in a criminal case.
2
Simmie Horwitz, the defendant in a criminal tax evasion case pending before petitioner in the Northern District of Illinois, filed a motion for a bill of particulars, which contained thirty requests for information. The Government resisted a number of the requests, and over the course of several hearings most of these objections were either withdrawn by the Government or satisfied by an appropriate narrowing of the scope of the bill of particulars by petitioner. Ultimately the dispute centered solely on defendant's request number 25. This request sought certain information concerning any oral statements of the defendant relied upon by the Government to support the charge in the indictment. It asked the names and addresses of the persons to whom such statements were made, the times and places at which they were made, whether the witnesses to the statements were government agents and whether any transcripts or memoranda of the statements had been prepared by the witnesses and given to the Government.1 After considerable discussion with counsel for both sides, petitioner ordered the Government to furnish the information. The United States Attorney declined to comply with the order on the grounds that request number 25 constituted a demand for a list of prosecution witnesses and that petitioner had no power under Rule 7(f) of the Federal Rules of Criminal Procedure to require the Government to produce such a list.
3
Petitioner indicated his intention to dismiss the indictments against Horwitz because of the Government's refusal to comply with his order for a bill of particulars. Before the order of dismissal was entered, however the Government sought and obtained ex parte from the Seventh Circuit a stay of all proceedings in the case. The Court of Appeals also granted the Government leave to file a petition for a writ of mandamus and issued a rule to show cause why such a writ should not issue to compel petitioner to strike request number 25 from his bill of particulars order. This case was submitted on the briefs, and the Court of Appeals at first denied the writ.2 The Government petitioned for reconsideration, however, and the Court of Appeals, without taking new briefs or hearing oral argument, reversed itself and without opinion issued a writ of mandamus directing petitioner 'to vacate his order directing the Government to answer question 25 in defendant's motion for bill of particulars.'3 We granted certiorari, 386 U.S. 955, 87 S.Ct. 1022, 18 L.Ed.2d 102 (1967), because of the wide implications of the decision below for the orderly administration of criminal justice in the federal courts. We vacate the writ and remand the case to the Court of Appeals for further proceedings.
4
Both parties have devoted substantial argument in this Court to the propriety of petitioner's order. In our view of the case, however, it is unnecessary to reach this question.4 The peremptory writ of mandamus has traditionally been used in the federal courts only 'to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.' Roche v. Evaporated Milk Assn., 319 U.S. 21, 26, 63 S.Ct. 938, 941 (1943). While the courts have never confined themselves to an arbitrary and technical definition of 'jurisdiction,' it is clear that only exceptional circumstances amounting to a judicial 'usurpation of power' will justify the invocation of this extraordinary remedy. De Beers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 1132, 89 L.Ed. 1566 (1945). Thus the writ has been invoked where unwarranted judicial action threatened 'to embarrass the executive arm of the government in conducting foreign relations,' Ex parte Republic of Peru, 318 U.S. 578, 588, 63 S.Ct. 793, 799, 87 L.Ed. 1014 (1943), where it was the only means of forestalling intrusion by the federal judiciary on a delicate area of federal-state relations, State of Maryland v. Soper, 270 U.S. 9, 46 S.Ct. 185, 70 L.Ed. 449 (1926), where it was necessary to confine a lower court to the terms of an appellate tribunal's mandate, United States v. United States Dist. Court, 334 U.S. 258, 68 S.Ct. 1035, 92 L.Ed. 1351 (1948), and where a district judge displayed a persistent disregard of the Rules of Civil Procedure promulgated by this Court, La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957); see McCullough v. Cosgrave, 309 U.S. 634, 60 S.Ct. 703, 84 L.Ed. 992 (1940); Los Angeles Brush Mfg. Corp. v. James, 272 U.S. 701, 706, 707, 47 S.Ct. 286, 288, 71 L.Ed. 481 (1927) (dictum). And the party seeking mandamus has 'the burden of showing that its right to issuance of the writ is 'clear and indisputable." Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953); see United States ex rel. Bernardin v. Duell, 172 U.S. 576, 582, 19 S.Ct. 286, 287 (1899).
5
We also approach this case with an awareness of additional considerations which flow from the fact that the underlying proceeding is a criminal prosecution. All our jurisprudence is strongly colored by the notion that appellate review should be postponed, except in certain narrowly defined circumstances, until after final judgment has been rendered by the trial court. See, e.g., Judiciary Act of 1789, §§ 21, 22, 25, 1 Stat. 73, 83, 84, 85; Cobbledick v. United States, 309 U.S. 323, 326, 60 S.Ct. 540, 541, 84 L.Ed. 783 (1940); McLish v. Roff, 141 U.S. 661, 12 S.Ct. 118, 35 L.Ed. 893 (1891). This general policy against piecemeal appeals takes on added weight in criminal cases, where the defendant is entitled to a speedy resolution of the charges against him. DiBella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 657, 7 L.Ed.2d 614 (1962). Moreover, 'in the federal jurisprudence, at least, appeals by the Government in criminal cases are something unusual, exceptional, not favored,' Carroll v. United States, 354 U.S. 394, 400, 77 S.Ct. 1332, 1336, 1 L.Ed.2d 1442 (1957), at least in part because they always threaten to offend the policies behind the double-jeopardy prohibition, cf. Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962). Government appeal in the federal courts has thus been limited by Congress to narrow categories of orders terminating the prosecution, see 18 U.S.C. § 3731, and the Criminal Appeals Act is strictly construed against the Government's right of appeal, Carroll v. United States, 354 U.S. 394, 399—400, 77 S.Ct. 1332, 1335—1336 (1957). Mandamus, of course, may never be employed as a substitute for appeal in derogation of these clear policies. E.g., Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671 (1962); Parr v. United States, 351 U.S. 513, 520—521, 76 S.Ct. 912, 917, 100 L.Ed. 1377 (1956); Bank of Columbia v. Sweeny, 1 Pet. 567, 569, 7 L.Ed. 265 (1828). Nor is the case against permitting the writ to be used as a substitute for interlocutory appeal 'made less compelling * * * by the fact that the Government has no later right to appeal.' DiBella v. United States, 369 U.S. 121, 130, 82 S.Ct. 654, 659 (1962).5 This is not to say that mandamus may never be used to review procedural orders in criminal cases. It has been invoked successfully where the action of the trial court totally deprived the Government of its right to initiate a prosecution. Ex parte United States, 287 U.S. 241, 53 S.Ct. 129, 77 L.Ed. 283 (1932), and where the court overreached its judicial power to deny the Government the rightful fruits of a valid conviction, Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916). But this Court has never approved the use of the writ to review an interlocutory procedural order in a criminal case which did not have the effect of a dismissal. We need not decide under what circumstances, if any, such a use of mandamus would be appropriate. It is enough to note that we approach the decision in this case with an awareness of the constitutional precepts that a man is entitled to a speedy trial and that he may not be placed twice in jeopardy for the same offense.
6
In light of these considerations and criteria, neither the record before us nor the cryptic order of the Court of Appeals justifies the invocation of the extraordinary writ in this case.
7
We do not understand the Government to argue that petitioner was in any sense without 'jurisdiction' to order it to file a bill of particulars.6 Suffice it to note that Rule 7(f) of the Federal Rules of Criminal Procedure specifically empowers the trial court to 'direct the filing of a bill of particulars,'7 and that federal trial courts have always had very broad discretion in ruling upon requests for such bills, compare Wong Tai v. United States, 273 U.S. 77, 82 47 S.Ct. 300, 302, 71 L.Ed. 545 (1927). Furthermore, it is not uncommon for the Government to be required to disclose the names of some potential witnesses in a bill of particulars, where this information is necessary or useful in the defendant's preparation for trial. See, e.g., United States v. White, 370 F.2d 559 (7th Cir. 1966). See also United States v. Debrow, 346 U.S. 374, 378, 74 S.Ct. 113, 115, 98 L.Ed. 92 (1953).
8
The Government seeks instead to justify the employment of the writ in this instance on the ground that petitioner's conduct displays a 'pattern of manifest noncompliance with the rules governing federal criminal trials.'8 It argues that the federal rules place settled limitations upon pretrial discovery in criminal cases, and that a trial court may not, in the absence of compelling justification, order the Government to produce a list of its witnesses in advance of trial. It argues further that in only one category of cases, i.e., prosecutions for treason and other capital offenses, is the Government required to turn over to the defense such a list of its witnesses. A general policy of requiring such disclosure without a particularized showing of need would, it is contended, offend the informant's privilege. Petitioner, according to the Government, adopted 'a uniform rule in his courtroom requiring the government in a criminal case to furnish the defense, on motion for a bill of particulars, a list of potential witnesses.'9 The Government concludes that since petitioner obviously had no power to adopt such a rule, mandamus will lie under this Court's decision in La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957), to correct this studied disregard of the limitations placed upon the district courts by the federal rules.10
9
The action of the Court of Appeals cannot, on the record before us, bear the weight of this justification. There is absolutely no foundation in this record for the Government's assertions concerning petitioner's practice. The legal proposition that mandamus will lie in appropriate cases to correct willful disobedience of the rules laid down by this Court is not controverted. But the position of the Government rests on two central factual premises: (1) that petitioner in effect ordered it to produce a list of witnesses in advance of trial; and (2) that petitioner took this action pursuant to a deliberately adopted policy in disregard of the rules of criminal procedure. Neither of these premises finds support in the record.
10
Petitioner repeatedly and, we think, correctly emphasized that request number 25 did not call for a list or government witnesses. He carefully noted that it was utterly immaterial under the terms of request number 25 whether the Government planned to call any of the individuals whose names were sought to the witness stand during the trial. Furthermore, it is clear as a practical matter that the Government's proof in this case, as in any prosecution of this complex nature, will extend far beyond mere damaging admissions of the defendant, and that witnesses will in all probability be called who have never heard Horwitz make any incriminating statements. Nor, if the list of people who have allegedly heard Horwitz make damaging admissions is long, is it likely that they will all be called to testify for the Government. Thus while the two categories have a clear probable overlap, they are not co-extensive. And, as petitioner stated in the opinion accompanying his original order to the Government to file a bill of particulars:
11
'The reason for requiring disclosure of their names * * * is not that they will or may be witnesses, but that the defendant requires identification of the times, places and persons present in order to prepare his defense.'
12
Indeed, petitioner excused the Government from answering request number 29(a), which was so broad as to constitute in effect a demand for a list of prosecution witnesses. Finally, it should be noted that in the opinion accompanying the original order, petitioner averred his willingness to narrow the order of disclosure upon a showing by the Government 'that such disclosure will involve physical risk to the individuals or prejudice the government in its ability to produce its evidence.' He repeated this offer numerous times in the subsequent hearings on the Government's objections to the bill, but the United States Attorney never suggested that such a showing could be made in this case.11
13
The record is equally devoid of support for the notion that petitioner had adopted a deliberate policy in open defiance of the federal rules in matters of pretrial criminal discovery. The extended colloquy between petitioner and government counsel reveals at most that petitioner took a generally liberal view of the discovery rights of criminal defendants.12 But petitioner was careful never to divorce his ruling from his view of the legitimate needs of the defendant in the case before him, and there is no indication that he considered the case to be governed by a uniform and inflexible rule of disclosure.13 Thus the most that can be claimed on this record is that petitioner may have erred in ruling on matters within his jurisdiction. See Parr v. United States, 351 U.S. 513, 520, 76 S.Ct. 912, 917, 100 L.Ed. 1377 (1956). But '(t)he extraordinary writs do not reach to such cases; they may not be used to thwart the congressional policy against piecemeal appeals.' Id., at 520—521, 76 S.Ct., at 917. Mandamus, it must be remembered, does not 'run the gauntlet of reversible errors.' Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 382, 74 S.Ct. 145, 147 (1953). Its office is not to 'control the decision of the trial court,' but rather merely to confine the lower court to the sphere of its discretionary power. Id., at 383, 74 S.Ct. 148. Thus the record before us simply fails to demonstrate the necessity for the drastic remedy employed by the Court of Appeals.
14
Even more important in our view, however, than these deficiencies in the record is the failure of the Court of Appeals to attempt to supply any reasoned justification of its action. Had the Government in fact shown that petitioner adopted a policy in deliberate disregard of the criminal discovery rules and that this policy had proved seriously disruptive of the efficient administration of criminal justice in the Northern District of Illinois, it would have raised serious questions under this Court's decision in La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309 (1957).14 In La Buy, however, we specifically relied upon evidence in the record which showed a pattern of improper references of cases to special masters by the District Judge. 352 U.S., at 258, 77 S.Ct., at 314. There is no evidence in this record concerning petitioner's practice in other cases, aside from his own remark that the Government was generally dissatisfied with it,15 and his statements do not reveal any intent to evade or disregard the rules. We do not know what he ordered the Government to reveal under what circumstances in other cases. This state of the record renders the silence of the Court of Appeals all the more critical. We recognized in La Buy that the familiarity of a court of appeals with the practice of the individual district courts within its circuit was relevant to an assessment of the need for mandamus as a corrective measure. See 352 U.S., at 258, 77 S.Ct., at 314. But without an opinion from the Court of Appeals we do not know what role, if any, this factor played in the decision below. In fact, we are in the dark with respect to the position of the Court of Appeals on all the issues crucial to an informed exercise of our power of review. We do not know: (1) what the Court of Appeals found petitioner to have done; (2) what it objected to in petitioner's course of conduct—whether it was the order in this particular case or some general practice adopted by petitioner in this and other cases;16 (3) what it thought was the proper scope of a bill of particulars under Rule 7(f) and what limitations it thought the criminal rules placed upon the particular or generalized discretion of a district court to order the Government to file such a bill; or (4) what relevance, if any, it attached to the fact that this order was entered in a criminal case, in assessing the availability of mandamus. We cannot properly identify the questions for decision in the case before us without illumination of this unclear record by the measured and exposed reflection of the Court of Appeals.
15
Due regard, not merely for the reviewing functions of this Court, but for the 'drastic and extraordinary' nature of the mandamus remedy, Ex parte Fahey, 332 U.S. 258, 259, 67 S.Ct. 1558, 1559, 91 L.Ed. 2041 (1947), and for the extremely awkward position in which it places the District Judge, id., at 260, 67 S.Ct., at 1559 demands that a court issuing the writ give a reasoned exposition of the basis for its action.
16
Mandamus is not a punitive remedy. The entire thrust of the Government's justification for mandamus in this case, moreover, is that the writ serves a vital corrective and didactic function. While these aims lay at the core of this Court's decisions in La Buy and Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234 (1964), we fail to see how they can be served here without findings of fact by the issuing court and some statement of the court's legal reasoning. A mandamus from the blue without rationale is tantamount to an abdication of the very expository and supervisory functions of an appellate court upon which the Government rests its attempt to justify the action below.
17
The preemptory common-law writs are among the most potent weapons in the judicial arsenal. 'As extraordinary remedies, they are reserved for really extraordinary causes.' Ex parte Fahey, 332 U.S. 258, 260, 67 S.Ct. 1558, 1559 (1947). There is nothing in the record here to demonstrate that this case falls into that category, and thus the judgment below cannot stand. What might be the proper decision upon a more complete record, supplemented by the findings and conclusions of the Court of Appeals, we cannot and do not say. Hence the writ is vacated and the cause is remanded to the Court of Appeals for the Seventh Circuit for further proceedings not inconsistent with this opinion. It is so ordered.
18
Writ vacated and cause remanded.
19
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
20
Mr. Justice BLACK, concurring.
21
I concur in the Court's judgment to vacate and agree substantially with its opinion, but would like to add a few words, which I do not understand to be in conflict with what the Court says, concerning the writ of mandamus. I agree that mandamus is an extraordinary remedy which should not be issued except in extraordinary circumstances. And I also realize that sometimes the granting of mandamus may bring about the review of a case as would an appeal. Yet this does not deprive a court of its power to issue the writ. Where there are extraordinary circumstances, mandamus may be used to review an interlocutory order which is by no means 'final' and thus appealable under federal statutes. Finality, then, while relevant to the right of appeal, is not determinative of the question when to issue mandamus. Rather than hinging on this abstruse and infinitely uncertain term, the issuance of the writ of mandamus is proper where a court finds exceptional circumstances to support such an order. In the present case it is conceivable that there are valid reasons why the Government should not be forced to turn over the requested names and that compliance with the order would inflict irreparable damage on its conduct of the case. The trouble here, as I see it, is that neither of the courts below gave proper consideration to the possible existence of exceptional facts which might justify the Government's refusal to disclose the names. Having no doubt as to the appropriateness of mandamus, if the circumstances exist to justify it, I would vacate the judgment below and remand the case to the Court of Appeals for further deliberation on whether there are special circumstances calling for the issuance of mandamus.
1
Request number 25 originally read:
'25. If (the Government relies upon any oral statements of the defendant), state with respect to each such statement, if there was more than one:
'a. The name and address of the person to whom the statement was made;
'b. The date on which the statement was made;
'c. The place where it was made;
'd. The substance of the statement;
'e. Whether the person to whom the statement was made was a Government Agent at the time of the statement;
'f. The names and addresses of any other persons present at the time the statement was made; and
'g. Whether a written memorandum or verbatim transcript of the oral statement was made, and, if so, whether the Government has possession of the memorandum or transcript.'
The Government objected, inter alia, to compliance with part 'd' on work-product grounds. At first petitioner sustained this objection and struck part 'd' altogether; however, he later ordered the Government to reveal the substance of statements made to government agents, but not of those made to private parties.
2
The order of the Court of Appeals denying the writ read, in its entirety:
'This is a petition by the government for writ of mandamus to compel respondent, a district court judge, to vacate his order which effectually directs the government in a criminal cause to give the defendant names and addresses of persons to whom defendant in said cause made oral statements to support the charges in the indictments. Briefs have been filed in this court by both parties. The court has considered the briefs and is fully informed of the points made and the position of the parties with respect to the issue, and
'The court finds that the order subject of the petition is not an appealable order, and a review of it would offend the policy against piecemeal appeals in criminal cases, Cobbledick v. United States, 309 U.S. 323 (60 S.Ct. 540, 84 L.Ed. 783); that mandamus may not be used as a means of reviewing the non-appealable order, Roche v. Evaporated Milk Association, 319 U.S. 21 (63 S.Ct. 938, 87 L.Ed. 1185); that federal courts use mandamus for the traditional purpose of confining a district court to a lawful exercise of its jurisdiction or to compel it to exercise its proper jurisdiction, Roche v. Evaporated Milk Association; that the district judge's order upon the government to furnish names and addresses of witnesses to a defendant may be erroneous, a question we do not decide, but the ruling itself was within the court's jurisdiction, Roche v. Evaporated Milk Association; that the ruling can be reviewed on appeal from a final judgment; and that there is no question here that the district judge refused to exercise his proper jurisdiction.
'It Is Therefore Ordered that the petition for writ of mandamus be and it is hereby denied.'
3
The original order denying the writ was entered on July 12, 1966. On August 16, 1966, the court granted the Government's petition for reconsideration, remarking only that:
'The court finds that in the circumstances of this particular case the court should consider the merits of the ruling of the district court challenged by the government, rather than to remit the government to a radical alternative appealable judgment available to the trial judge upon the government's persistent refusal to comply;
'It is therefore ordered that the order of this court of July 12, 1966, be and it is hereby vacated, and the cause is taken by the court upon the petition for the writ, the briefs of both parties and the record.'
Subsequently, on October 4, 1966, the Court of Appeals granted the writ. Its entire order reads as follows:
'This cause came on to be heard upon the Government's petition for writ of mandamus ordering respondent to vacate his order directing the Government to answer question 25 in defendant's motion for bill of particulars, which question sought, among other things, the names and addresses of persons to whom defendant made oral statements supporting the indictment charging wilful evasion of income tax, and which statements the Government would rely upon at the trial; upon the rule issued upon respondent to show cause why the writ should not issue; upon the brief of respondent answering the rule, and the brief of the Government; and upon the record.
'And the Court having on August 16, 1966 vacated its July 12, 1966 order denying the writ, and having reconsidered the question,
'It Is Ordered that a writ of mandamus issue as prayed in the Government's petition directing respondent to vacate his order directing the Government to answer question 25 in defendant's motion for bill of particulars.'
4
It is likewise unnecessary for us to reach the question whether the writ in the circumstances of this case may be said to issue in aid of an exercise of the Court of Appeals' appellate jurisdiction. See 28 U.S.C. § 1651; Roche v. Evaporated Milk Assn., 319 U.S. 21, 25, 63 S.Ct. 938, 941 (1943). Compare In re United States, 348 F.2d 624 (1st Cir. 1965), with United States v. Bondy, 171 F.2d 642 (2d Cir. 1948). In our view, even assuming that the possible future appeal in this case would support the Court of Appeals' mandamus jurisdiction, it was an abuse of discretion for the court to act as it did in the circumstances of this case.
5
Thus it is irrelevant, and we do not decide, whether the Government could appeal in the event petitioner dismissed the Horwitz indictments because of its refusal to comply with his bill of particulars order. Both parties agree that it is highly doubtful that it could appeal. See United States v. Apex Distrib. Co., 270 F.2d 747 (9th Cir. 1959). The Government argues that it is unseemly to force it to defy the court in order to seek review of its order, and doubly so because it may secure review of certainty only if the United States Attorney is cited for contempt, compare Bowman Dairy Co. v. United States, 341 U.S. 214, 71 S.Ct. 675, 95 L.Ed. 879 (1951), in view of the doubtful status of its right to appeal a dismissal. But this misses the mark. Congress clearly contemplated when it placed drastic limits upon the Government's right of review in criminal cases that it would be completely unable to secure review of some orders having a substantial effect on its ability to secure criminal convictions. This Court cannot and will not grant the Government a right of review which Congress has chosen to withhold. Carroll v. United States, 354 U.S. 394, 407—408, 77 S.Ct. 1332, 1340 (1957). We may assume for purposes of this decision that there may be no other way for the Government to seek review of individual orders directing it to file bills of particulars.
6
Nor do we understand the Government to argue that a judge has no 'power' to enter an erroneous order. Acceptance of this semantic fallacy would undermine the settled limitations upon the power of an appellate court to review interlocutory orders. Neither 'jurisdiction' nor 'power' can be said to 'run the gauntlet of reversible errors.' Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 382, 74 S.Ct. 145, 147 (1953). Courts faced with petitions for the peremptory writs must be careful lest they suffer themselves to be misled by labels such as 'abuse of discretion' and 'want of power' into interlocutory review of nonappealable orders on the mere ground that they may be erroneous. 'Certainly Congress knew that some interlocutory orders might be erroneous when it chose to make them nonreviewable.' De Beers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 223, 225, 65 S.Ct. 1130, 1136 (1945) (dissenting opinion of Mr. Justice Douglas).
7
It should be noted that Rule 7(f) was amended, effective July 1, 1966, to eliminate the requirement that a defendant seeking a bill of particulars make a showing of 'cause.' The Government argues that this amendment was not designed 'to transform the bill of particulars into an instrument of broad discovery.' Brief for United States, p. 15, n. 5. We intimate no view regarding the construction of the amendment. Petitioner's order was entered before the amendment was promulgated. The impact of the amendment on the present proceeding will, of course, be a question open upon remand.
8
Brief for United States, p. 24.
9
Brief for United States, p. 11.
10
We note in passing that La Buy and the other decisions of this Court approving the use of mandamus as a means of policing compliance with the procedural rules were civil cases. See Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964); McCullough v. Cosgrave, 309 U.S. 634, 60 S.Ct. 703 (1940); Los Angeles Brush Mfg. Corp. v. James 272 U.S. 701, 706, 707, 47 S.Ct. 286, 288 (1927) (dictum). We have pointed out that the fact this case involves a criminal prosecution has contextual relevance. See supra, at 96—98. In view of our reading of the record, however, we need not venture an abstract pronouncement on the question whether this fact imposes a more stringent standard for the invocation of mandamus by the Government where the allegation is that a district judge has deviated from the federal rules.
11
Petitioner at one point stated to government counsel:
'I told you that any time you made a representation with any foundation in support of it that the disclosure of the name of an individual would either jeopardize him physically or jeopardize the government's proof in the case and that his testimony might be altered or effort might be made to persuade him not to testify, or something else, I am prepared to say under those circumstances of that showing we don't risk people's lives or their security, their physical well-being, and we don't encourage any possible circumstances in which testimony can be suppressed. That is consistent, it seems to me, with my general philosophy that you shouldn't be suppressing things; and if there is a threat of suppression then I will take the lesser suppression to prevent the greater.'
Earlier, after government counsel suggested that the danger of fabricated defenses justified a policy against the disclosure of the names of potential government witnesses, petitioner replied:
'Now any evidence of a fabrication, believe me, we will deal with it. The laws of perjury—we have had convictions for perjury here, and we will have them again, I have no doubt, arising out of criminal cases, but I am not prepared to say to a defendant that you may not have the infromation which it seems to me you reasonably require to prepare your defense because I am afraid you or somebody helping you will lie and we won't be able to do anything about it.'
Upon further inquiry, the United States Attorney made no suggestion that there was a particular danger that disclosure of the names sought by request number 25 would result in subornation of perjury.
12
Petitioner remarked at one stage:
'You know, I have great concern that in a civil case we require both sides to submit their witnesses to maximum deposition when all that is involved is money. In a criminal case, the government doesn't even want to disclose the name of a person so the other side can go out and interview him when what is concerned is life or liberty. To me this is a very strange aberration of the processes of justice as between civil and criminal cases. When all that is involved is money, we say put your cards on the table. Where life and liberty are involved, we say to the prosecution you don't have to tell him a thing.'
The Government seeks to make much of an exchange in which petitioner remarked that he would 'go further' than what the United States Attorney referred to as 'the proposed new rules of discovery under the criminal rules by the American Bar Association.' The reference, according to the Government, is to the amendments to the Federal Rules of Criminal Procedure, which were pending in this Court at the time, and the exchange reveals petitioner's determination to require broad criminal discovery despite the limitations of the rules. We cannot accept this argument. In the first place, the colloquy clearly reveals that petitioner considered the proposed rules irrelevant to the question before him. In the second place, petitioner made it plain that he thought his position could in any event be rested on a reading of the proposed rules:
'The Court: * * * I would go further than they go, but they certainly go a lot further than you—a lot further.
'Mr. Schultz (United States Attorney): They would not require the answers to these questions.
'The Court: I don't agree with that. They would not require the giving of a list of witnesses, and I don't conceive that I am * * *.'
13
After his initial ruling that the defendant was entitled to the information sought by request number 25 because he needed it to prepare his defense adequately, petitioner continually asserted a willingness to consider any factors peculiar to the case which militated against disclosure of this information and to narrow his order in light of any such consideration. See n. 11, supra. Moreover, on several occasions it was petitioner who sought to narrow the focus of the discussion to the particular instance by insisting that the United States Attorney relate his generalized policy objections to the facts of the particular case:
'Mr. Schultz: We are not only talking about this very case, your Honor.
'The Court: Well, I am talking about this case. That is what I am ruling on. That is what I ruled on last week or earlier this week. That is what you are asking me to reconsider, to vacate.'
And again:
'Why shouldn't they have an opportunity to interview the witnesses? Why should they put them on cold at the time, or why should I have to recess then while they go and interview the witnesses to see what their testimony would be?
'I don't understand it, Mr. Schultz. I just don't understand in this situation—I can understand a lot of situations, but in this situation. We are not talking about some other case, but in this case, this case in which you say that there were incriminating admissions made.'
14
The Government also places reliance on Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234 (1964), arguing that it 'reaffirmed' La Buy. Insofar as it did so, the case does not help the Government here, since we have no quarrel with La Buy, which is simply inapposite where there is no showing of a persistent disregard of the federal rules. And it cannot be contended that Schlagenhauf on its facts supports an invocation of mandamus in this case. The Court there did note that the various questions concerning the construction of Rule 35 were new and substantial, but it rested the existence of mandamus jurisdiction squarely on the fact that there was real doubt whether the District Court had any power at all to order a defendant to submit to a physical examination.
15
Petitioner stated that
'it is no secret that the government is disturbed that I am making available to defendants the identity of people who are alleged to have been present when transactions took place, which the government contends are illegal. * * *
'* * * I have never required them to disclose their evidence, but I have required them to identify the people with whom the defendant is supposed to have participated in an illegal act but who were present.'
We note merely that petitioner was careful to distinguish his practice from requiring the Government to produce its evidence or a list of witnesses. In any event, petitioner's passing remarks concerning a running dispute with the Government are insufficient to support an invocation of La Buy, absent some evidence concerning petitioner's actions in other cases, or at the very least some illumination of this dialogue flowing from the Court of Appeals' experience with petitioner's general practice and its reading of Rule 7(f).
16
Another puzzling aspect of the action of the Court of Appeals is what it did not do. Request 7, 14, 19, 21, 23, 25, 27, and 29 called for the disclosure of the names of persons who might conceivably be called as witnesses by the Government at Horwitz' trial. The Government objected to being required to answer requests 7, 14, 25, and 29. Ultimately petitioner excused the Government from answering request number 29, which was very broadly cast and did in effect call for a list of all potential witnesses. The Government for its part answered all the remaining requests, except number 25. The mandamus petition only placed the latter in issue, but nothing in the record indicates why either the Government or the Court of Appeals might have thought that it was within petitioner's judicial discretion under Rule 7(f) to order the disclosure of the names sought by the other requests, but not the revelation of those sought by request number 25.
| 89
|
389 U.S. 109
88 S.Ct. 258
19 L.Ed.2d 319
James Cleveland BURGETT, Petitioner,v.STATE OF TEXAS.
No. 53.
Argued Oct. 18, 1967.
Decided Nov. 13, 1967.
R. Gordon Gooch, Houston, Tex., for petitioner.
Leon B. Douglas, Austin, Tex., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioner was convicted of 'assault with malice aforethought with intent to murder; repetition of offense.' The jury fixed the punishment at 10 years in the Texas State Penitentiary.1 On appeal, the Texas Court of Criminal Appeals affirmed petitioner's conviction.2 We granted certiorari, 386 U.S. 931, 87 S.Ct. 959, 17 L.Ed.2d 805.
2
Petitioner was charged in a five-count indictment. In the first count the State alleged that he had cut one Bradley with a knife and had stabbed at Bradley's throat with intent to kill. Pursuant to the Texas recidivist statutes,3 the remaining counts of the indictment consisted of allegations that petitioner had incurred four previous felony convictions: a Texas conviction for burglary, and three Tennessee convictions for forgery. If these allegations were found to be true, petitioner would be subject to a term of life imprisonment upon conviction of the offense charged in count one.4
3
Petitioner's counsel filed a pretrial motion to quash the four counts of the indictment referring to the prior convictions for failure to apprise the defense of what the State would attempt to prove.5 The record is silent as to the court's action on this motion. But when the indictment was read to the jury at the beginning of the trial, before any evidence was introduced, the four counts relating to the prior convictions were included.
4
During the course of the trial, while the jury was present, the State offered into evidence a certified copy of one of the Tennessee convictions. The conviction read in part, 'Came the Assistant Attorney-General for the State and the Defendant in proper person and without Counsel.' Petitioner's counsel objected to the introduction of the record on the ground that the judgment on its face showed that petitioner was not represented by counsel in violation of the Fourteenth Amendment. There was no indication in the record that counsel had been waived. The court stated that it would reserve ruling on the objection, apparently to give the State an opportunity to offer any of the other convictions into evidence. The State then offered a second version of the same Tennessee conviction which stated that petitioner had appeared 'in proper person' but did not contain the additional words 'without counsel.' This second version also stated that 'After said jury had heard the evidence, argument of counsel, and the charge of the Court, they retired to consider of their verdict.' It is not clear, however, whether 'counsel' was being used in the singular or plural, and in any event no explanation was offered for the discrepancy between the two records. Petitioner's counsel objected to this section version on the same ground. The court again reserved its ruling.
5
The State then offered into evidence a certified copy of the indictment in the prior Texas case. Petitioner's counsel indicated he had no objection, and that record was received into evidence. Thereafter, testimony was offered concerning the judgment and sentence in the prior Texas case. After some testimony had been given, the jury was excused and the hearing continued out of its presence. At the conclusion of the hearing, petitioner's attorney objected that the Texas judgment was void on its face under state law. The court sustained that objection, and the record of the Texas conviction was stricken from evidence. At the same time, the court sustained petitioner's objection to the first version of the Tennessee conviction; but overruled the objection to the second version of the same conviction. The jury was then recalled and testimony was heard on the substantive offense charged. The next reference to the prior convictions was when th court instructed the jury not to consider the prior offenses6 for any purpose whatsoever in arriving at the verdict.
6
Petitioner's motion for a new trial was denied. In the Court of Criminal Appeals, petitioner argued, inter alia, that the court erred in permitting counts two through five of the indictment to be read to the jury at the beginning of the trial, and in failing to sustain petitioner's objection to the admission into evidence of the second version of the Tennessee conviction. The Court of Criminal Appeals held that since petitioner had not suffered the enhanced punishment provided by the recidivist statutes, and since the instruction to disregard the prior offenses had been given, no error was presented.
7
We do not sit as a court of criminal appeals to review state cases. The States are free to provide such procedures as they choose, including rules of evidence, provided that none of them infringes a guarantee in the Federal Constitution. The recent right-to-counsel cases, starting with Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, are illustrative of the limitations which the Constitution places on state criminal procedures. Those limitations sometimes touch rules of evidence.
8
The exclusion of coerced confessions is one example. Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716.
9
The exclusion of evidence seized in violation of the Fourth and Fourteenth Amendments is another. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.
10
Still another is illustrated by Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. In that case we held that a transcript of a preliminary hearing had to be excluded from a state criminal trial because the defendant had no lawyer at that hearing, and did not, therefore, have the opportunity to cross-examine the principal witness against him who since that time had left the State. The exclusionary rule that we fashioned was designed to protect the privilege of confrontation guaranteed by the Sixth Amendment and made applicable to the States by the Fourteenth.
11
The same result must follow here. Gideon v. Wainwright established the rule that the right to counsel guaranteed by the Sixth Amendment was applicable to the States by virtue of the Fourteenth, making it unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one. And that ruling was not limited to prospective applications. See Doughty v. Maxwell, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650; Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41. In this case the certified records of the Tennessee conviction on their face raise a presumption that petitioner was denied his right to counsel in the Tennessee proceeding, and therefore that his conviction was void. Presuming waiver of counsel from a silent record is impermissible. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70. To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense (see Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477) is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right.
12
The admission of a prior criminal conviction which is constitutionally infirm under the standards of Gideon v. Wainwright is inherently prejudicial and we are unable to say that the instructions to disregard it7 made the constitutional error 'harmless beyond a reasonable doubt' within the meaning of Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.
13
Our decision last Term in Spencer v. State of Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606, is not relevant to our present problem. In Spencer the prior convictions were not presumptively void. Moreover, the contention was that the guilt phase of the trial was prejudiced by the introduction of the evidence of prior crimes. As the Court noted, '(i)n the procedures before us, * * * no specific federal right—such as that dealing with confessions—is involved; reliance is placed solely on a general 'fairness' approach.' Id., at 565, 87 S.Ct. at 654. In this case, however, petitioner's right to counsel, a 'specific federal right,' is being denied anew. This Court cannot permit such a result unless Gideon v. Wainwright is to suffer serious erosion.
14
Reversed.
15
Mr. Chief Justice WARREN, concurring.
16
I am in full agreement with the opinion of the Court and the reasons stated therein for reversing the conviction in this case. However, in view of the terse dissent entered by my Brother Harlan, I feel constrained to add some observations of my own.
17
The dissent refers to the Court's decision in Spencer v. State of Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606, and the entire thrust of the dissent is reminiscent of that decision of last Term which placed this Court's stamp of approval on the Texas recidivist procedures from which this case evolves. The dissent reminds us that '(w)e do not sit as a court of errors and appeals in state cases.' I would not disagree with that statement is an abstract proposition. But we are not dealing with abstracts in this case. We are dealing with a very real denial of a state criminal defendant's rights as guaranteed by the Federal Constitution. We are also told by the dissent that 'this case shows no prosecutorial bad faith or intentional misconduct.' But this misses the mark. We are not limited in our review of constitutional errors in state criminal proceedings to those errors which flow from 'prosecutorial bad faith or intentional misconduct.'1 Our concern is with the effect of those errors, whether well-intentioned or not,2 on the constitutionally protected right of a criminal defendant to a fair and impartial trial.
18
This case is a classic example of how a rule eroding the procedural rights of a criminal defendant on trial for his life or liberty can assume avalanche proportions, burying beneath it the integrity of the fact-finding process. In Spencer, the Court approved a procedure whereby a State, for the sole purpose of enhancing punishment, includes in the indictment allegations of prior crimes which are read to the jury and enters evidence at trial of those prior crimes, no matter how unrelated they might be to the charge on which the defendant is being tried. The rule adopted in Spencer went so far as to allow the State to enter evidence on the prior crimes even though a defendant might be willing to stipulate the earlier convictions. In this case, that harsh rule was expanded to a degree close to barbarism.
19
In addition to charging the petitioner with the principal crime of 'assault with malice aforethought with intent to murder,' the indictment alleged four prior convictions, one in Texas and three in Tennessee. Despite the efforts of the petitioner's attorney to quash those portions of the indictment referring to the prior crimes, the entire indictment was read to the jury at the start of the petitioner's one-day trial. The prosecutor then proceeded to offer evidence of the prior convictions. The petitioner's attorney objected to evidence of one Tennessee conviction because a certified copy of that conviction showed that the petitioner had not been represented by counsel. The trial judge reserved his ruling on the objection. The prosecution next offered a second version of that same Tennessee conviction which omitted any reference to the absence of counsel but which did not show a waiver of counsel. The petitioner's attorney again objected and the trial judge again reserved his ruling. The prosecutor then offered into evidence a certified copy of the indictment in the prior Texas case, and it was received without objection. All this occurred in the presence of the jury. However, when the petitioner's attorney objected to evidence concerning the judgment and sentence in the prior Texas case, the jury was excused and testimony was taken out of the presence of the jury. At the close of that evidence and before the jury returned, the trial judge ruled that the prior Texas conviction was void under state law. In addition, the trial judge sustained the objection to the first version of the Tennessee conviction but overruled the objection to the second version of the same conviction.3 The jury then returned and the trial continued. The next the jury was to hear of the prior convictions was a brief instruction from the trial judge advising the jurors not to consider the prior crimes for any purpose. The jury was never told, however, that two of the prior convictions charged were void and that the prosecution had failed to offer testimony on the validity of the other prior crimes charged in the indictment.
20
Thus, the jury went into its deliberations knowing that the petitioner had been convicted and imprisoned for four prior felonies, although not one had been proven at the trial. To expect that the jury could wipe this from its memory and decide the petitioner's guilt only on the basis of the evidence of assault is to place too much faith in a jury's ability to detach itself from reality. This is particularly true since the trial judge gave the jurors not the slightest clue as to why matters which consumed so much time at trial were suddenly being removed from their consideration.
21
To suggest that such a procedure accords a man charged with a crime due process is beyond belief. This Court has reversed convictions in other cases based on unfair influences on juries which must be deemed minor when compared to the pervasive prejudice in this case. Not long ago we ruled that a defendant was denied due process when a court bailiff remarked in the presence of the jurors, 'Oh that wicked fellow, he is guilty'; and, 'If there is anything wrong (in the verdict) the Supreme Court will correct it.' Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420. We also reversed a murder conviction because two prosecution witnesses were deputy sheriffs who had been assigned to accompany the jury while it was sequestered. Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424.4 If these transgressions offend constitutional standards of fairness, can it be doubted that the petitioner's trial was stripped of all vestiges of due process when the jurors were told of his prior void convictions and the error was not explained to them?
22
This case is the frightful progeny of Spencer and of that decision's unjustified deviation from settled principles of fairness. Today we have placed a needed limitation on the Spencer rule, but nothing except an outright rejection would truly serve the cause of justice.
23
Mr. Justice HARLAN, whom Mr. Justice BLACK and Mr. Justice WHITE join, dissenting.
24
The record in this case shows no prosecutorial bad faith or intentional misconduct. To the extent that the prosecutor contemplated the use of prior convictions in a one-stage recidivist trial, his right to do so is of course established by Spencer v. State of Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606, decided only last Term. The fact that the prior convictions turned out to be inadmissible for other reasons involves at the most a later corrected trial error in the admission of evidence. We do not sit as a court of errors and appeals in state cases, and I would affirm the judgment of the state court.
1
The maximum penalty for a first conviction of assault with intent to murder is 25 years; the minimum penalty is two years. Tex.Pen.Code, Art. 1160 (Supp.1966).
2
Burgett v. State of Texas, Tex.Cr.App., 397 S.W.2d 79 (1965).
3
The statutes involved here are Articles 62 and 63 of the Tex.Pen.Code (1952).
Article 62 provides: 'It is 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 samd 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.'
4
Tex.Pen.Code, Art. 63 (1952).
5
In petitioner's amended motion for a new trial, which was denied by the court, he explained that the purpose of the pretrial motion was 'so that defendant could establish their (the previous convictions alleged for enhancement) admissibility before they were read into the record in the presence of the jury; same reading into the record in the presence of the jury was prejudicial to defendant herein.'
6
The court apparently withdrew consideration of the prior convictions from the jury since only the record of the one prior Tennessee conviction for forgery had been accepted. Thus, Article 63 could not be applied to petitioner. Further, since forgery could not be considered as an offense of the 'same nature' as assault with intent to murder, Article 62 would not be applicable. See n. 3, supra.
The State apparently did not attempt to introduce the records of the other two Tennessee convictions for forgery because the indictment showed that all of the convictions occurred on the same date. To invoke the provisions of Article 63, each succeeding conviction must be subsequent in time to the previous conviction both with respect to commission of the offense and to conviction. Cowan v. State, 172 Tex.Cr.R. 183, 355 S.W.2d 521 (1962).
7
See, e.g., Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077; United States v. Clarke, 343 F.2d 90 (C.A.3d Cir. 1965). Cf. Waldron v. Waldron, 156 U.S. 361, 383, 15 S.Ct. 383, 389, 39 L.Ed. 453; Throckmorton v. Holt, 180 U.S. 552, 21 S.Ct. 474, 45 L.Ed. 663; Lawrence v. United States, 357 F.2d 434 (C.A.10th Cir. 1966); United States v. DeDominicis, 332 F.2d 207 (C.A.2d Cir. 1964).
What Mr. Justice Jackson said in Krulewitch v. United States, 336 U.S. 440, 445, 453, 69 S.Ct. 716, 723, 93 L.Ed. 790 (concurring opinion), in the sensitive area of conspiracy is equally applicable in this sensitive area of repetitive crimes, 'The naive assumption that prejudicial effects can be overcome by instructions to the jury * * * all practicing lawyers know to be unmitigated fiction.'
1
Prosecutorial bad faith, of course, is not an irrelevant element in our review of state criminal convictions. It can often make even more intolerable errors which demand correction in this Court. See, e.g., Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690; Napue v. People of State of Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217; Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791.
2
The dissent is not alone in viewing this case solely in terms of the prosecutor's good or bad faith. The Texas Court of Criminal Appeals disposed of the petitioner's objection to the use of the prior void convictions at trial with the cryptic observation that '(t)here is no showing of bad faith on the part of the state in alleging or attempting to prove the prior convictions.' Boswell tells us that Dr. Johnson once observed that 'Hell is paved with good intentions.' Boswell, Life of Samuel Johnson 257 (Great Books ed. 1952). If the good-faith view of this case should prevail, then surely this petitioner's road to prison would be paved with the same good intentions.
3
The record is silent concerning the second and third Tennessee convictions alleged in the indictment, and the prosecution apparently did not offer any evidence on those convictions. However, the jury had been made aware of those prior crimes when the indictment was read at the start of the trial.
4
I do not mean to express any disapproval of our decisions in Parker and Turner. I joined both of those opinions and I have no doubt the practices condemned in those cases were at odds with settled principles of due process of law. However, it follows a fortiori from those decisions that we are presented in this case with a violation of due process.
| 01
|
389 U.S. 138
88 S.Ct. 314
19 L.Ed.2d 343
Dennis Manaford WHITNEY, petitioner,v.STATE OF FLORIDA.
No. 68.
Supreme Court of the United States
October Term, 1967.
November 13, 1967
Richard A. Kanner, Miami, Fla., for petitioner.
James T. Carlisle, Vero Beach, Fla., for respondent.
On Writ of Certiorari to the District Court of Appeal of Florida, Third District.
PER CURIAM.
1
The writ is dismissed as improvidently granted without prejudice to an application for a writ of habeas corpus in the appropriate United States District Court.
2
Mr. Justice DOUGLAS, dissenting.
3
The question presented here is whether Florida has deprived petitioner of equal protection or due process of law by summarily dismissing his collateral attack on a state criminal conviction without conducting an evidentiary hearing. Because of the increasing tide of habeas corpus petitions brought by prisoners (see Price v. Johnston, 334 U.S. 266, 293, 68 S.Ct. 1049, 92 L.Ed. 1356)—many of whom find they must turn to federal courts to obtain a hearing—the question is of considerable importance.
4
I assume that the Federal Constitution does not compel the States to provide any remedy for collateral attack of criminal convictions. Cf. Townsend v. Sain, 372 U.S. 293, 313, n. 9, 83 S.Ct. 745, 9 L.Ed.2d 770; Griffin v. People of State of Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 100 L.Ed. 891. But when a State makes available a means for review, it is held to a 'constitutional requirement of substantial equality and fair process.' Anders v. State of Claifornia, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. It may not discriminate arbitrarily between persons applying for relief (e. g., Burns v. State of Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209), and it must adhere to the requirements of due process. Swenson v. Bosler, 386 U.S. 258, 260, 87 S.Ct. 996, 18 L.Ed.2d 33. Though these rules were primarily developed with reference to appellate review, we have held them applicable with equal force to state post-conviction proceedings. Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39.
5
By Rule 1 of the Florida Rules of Criminal Procedure, F.S.A., ch. 924 Appendix, Florida has provided a means of collateral attack.
6
In his application petitioner alleged that extensive pretrial publicity—including television broadcasts of confessions given by him—prevented selection of a fair and impartial jury. Petitioner further alleged that he asked his trial counsel to request a change of venue, but counsel refused to do so. The Florida District Court of Appeal held that no evidentiary hearing was necessary because venue objections could only be raised at trial and because venue was res judicata under the judgment in a prior collateral attack by petitioner (see Whitney v. Cochran, 152 So.2d 727, 730 (Fla.)) that representation by trial counsel was adequate and not a farce or sham.
7
But this characterization and disposition of petitioner's allegations avoid the basic issue presented. Under Entsminger v. State of Iowa, 386 U.S. 748, 87 S.Ct. 1402, 18 L.Ed.2d 501, a defendant who specifically asked his attorney to take a plenary appeal was denied a constitutional right when the attorney took only a truncated appeal. The allegations of petitioner here clearly constitute a prima facie case of violation of this principle.
8
My Brother HARLAN characterizes this crime as 'a particularly brutal murder'—and so it was. But that does not alter the underlying constitutional question whether the atmosphere of the community had been so saturated by adverse publicity as to deprive the state trial of the constitutional requirement of due process. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600. My Brother HARLAN states that from this record it is 'inescapable' that petitioner's trial counsel 'deliberately' chose to try the case before a jury that may have been exposed to petitioner's televised confessions. But with all respect, that is no answer to the present constitutional claim. Until we know the extent and degree of saturation of the public mind with the TV films, it is impossible to say whether or not counsel's failure to obtain a change of venue was harmless error under the ruling of Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. Far more than mere trial tactics and strategy is involved. In such a case the denial of the defendant's rights is not cured by outstanding representation by counsel during the balance of proceedings. It is no answer for the Florida courts to say counsel never moved at trial for a transfer to a county not saturated with pretrial publicity; for this failure of counsel is the very heart of the wrong allegedly done to petitioner. Nor are res judicata principles applicable, for as I read Whitney v. Cochran the Entsminger right-to-counsel issue was neither raised nor decided.
9
I would vacate the judgment and remand to the Florida courts so that the State may give petitioner the evidentiary hearing to which he is entitled. We needlessly burden the federal regime* when we do not insist that Florida, which has provided a remedy, have the evidentiary hearing which will determine the nature and extent of the pretrial publicity and whether it was trivial or potentially damaging.
10
Mr. Justice HARLAN, whom Mr. Justice BLACK joins, dissenting.
11
I would affirm the judgment of the state court. I can find no sound basis for this Court's not reaching the merits of the questions brought here for review, even though I believe that the writ should not have issued in the first place. Nor do I believe that a federal habeas corpus proceeding should be encouraged, which is the implicit effect of the Court's 'without prejudice' dismissal, or, as my Brother DOUGLAS suggests, that the case should be remanded to the state court for a hearing.
12
Petitioner was convicted of a particularly brutal murder, committed in the course of an armed robbery. At trial, with advice of counsel, he entered into a written stipulation conceded to be the virtual equivalent of a guilty plea, confessing the murder. Consequently, the only question argued to the jury by counsel was whether it would recommend mercy; the jury declined to do so, and a sentence of death was imposed.
13
Prior to his trial, petitioner had confessed to five other homicides and one attempted homicide. These confessions were not referred to at trial. They were, however, allegedly given wide publicity by television and radio stations in the area where trial occurred. Contending that this publicity had deprived him of the right to trial before an impartial jury, petitioner brought this collateral proceeding in the state courts.
14
The Florida District Court of Appeal, rejecting the argument that petitioner's claim was foreclosed by his failure to raise it in prior proceedings, held that as a matter of state law the principle of res judicata is applicable, in criminal cases, 'only to those items actually raised in the prior proceedings.' Whitney v. State, 184 So.2d 207, at 209 (Fla.). (Emphasis in original.) On the merits the court rejected petitioner's claim, relying heavily on the fact that trial counsel had made no motion for a change of venue, and had not even undertaken to exercise all of his peremptory challenges. Cf. Beck v. Washington, 369 U.S. 541, 557-558, 82 S.Ct. 955, 8 L.Ed.2d 98. The record also reveals that counsel conducted a vigorous voir dire during which, although for obvious reasons no mention of other crimes was made each juror represented that he could and would judge the case solely on the basis of what was presented in court. The conclusion that trial counsel deliberately chose to risk the mercy of a local jury, rather than court more imponderable hazards elsewhere, seems inescapable.
15
After trial, new counsel sought to depict this perfectly understandable piece of strategy as but the product of incompetence so gross as to give rise to a constitutional claim that the petitioner was deprived of the effective assistance of counsel. In light of the record, and particularly defense counsel's extensive summation, which clearly evinces as effort to make the best of a hopeless case by trying to save defendant from the death penalty, the claim now made is little short of frivolous.
16
I can find in this straightforward train of events no room for questioning the validity of this state conviction from a federal constitutional standpoint, or for further prolonging the case.
*
Habeas corpus petitions and petitions under 28 U.S.C. § 2255 in the federal courts increased from 598 in 1941 to 2,314 in 1961 (Annual Rep. Adm. Off. U. S. Courts 1964, p. 155) and to 9,697 in the 1967 fiscal year. Annual Rep. 1967, p. II-56. Of these, 5,948 were habeas corpus cases brought by state prisoners. Ibid.
| 01
|
389 U.S. 128
88 S.Ct. 254
19 L.Ed.2d 336
Jerry Douglas MEMPA, Petitioner,v.B. J. RHAY, Superintendent, Washington State Penitentiary. William Earl WALKLING, Petitioner, v. WASHINGTON STATE BOARD OF PRISON TERMS AND PAROLES.
Nos. 16, 22.
Argued Oct. 11 and 12, 1967.
Decided Nov. 13, 1967.
[Syllabus from pages 128-129 intentionally omitted]
Evan L. Schwab, Seattle, Wash., for petitioners.
Stephen C. Way, Olympia, Wash., for respondents.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
These consolidated cases raise the question of the extent of the right to counsel at the time of sentencing where the sentencing has been deferred subject to probation.
2
Petitioner Jerry Douglas Mempa was convicted in the Spokane County Superior Court on June 17, 1959, of the offense of 'joyriding,' Wash.Rev.Code § 9.54.020. This conviction was based on his plea of guilty entered with the advise of court-appointed counsel. He was then placed on probation for two years on the condition, inter alia, that he first spend 30 days in the county jail, and the imposition of sentence was deferred pursuant to Wash.Rev.Code §§ 9.95.200, 9.95.210.1
3
About four months later the Spokane County prosecuting attorney moved to have petitioner's probation revoked on the ground that he had been involved in a burglary on September 15, 1959. A hearing was held in the Spokane County Superior Court on October 23, 1959. Petitioner Mumpa, who was 17 years old at the time, was accompanied to the hearing by his stepfather. He was not represented by counsel and was not asked whether he wished to have counsel appointed for him. Nor was any inquiry made concerning the appointed counsel who had previously represented him.
4
At the hearing Mempa was asked if it was true that he had been involved in the alleged burglary and he answered in the affirmative. A probation officer testified without cross-examination that according to his information petitioner had been involved in the burglary and had previously denied participation in it. Without asking petitioner if he had anything to say or any evidence to supply, the court immediately entered an order revoking petitioner's probation and then sentenced him to 10 years in the penitentiary, but stated that it would recommend to the parole board that Mempa be required to serve only a year.2
5
In 1965 Mempa filed a pro se petition for a writ of habeas corpus with the Washington Supreme Court, claiming that he had been deprived of his right to counsel at the proceeding at which his probation was revoked and sentence imposed. The Washington Supreme Court denied the petition on June 23, 1966, by a vote of six to three. Mempa v. Rhay, 68 Wash.2d 882, 416 P.2d 104. We granted certiorari to consider the questions raised. 386 U.S. 907, 87 S.Ct. 849, 17 L.Ed.2d 781 (1967).
6
Petitioner William Earl Walkling was convicted in the Thurston County Superior Court on October 29, 1962, of burglary in the second degree on the basis of his plea of guilty entered with the advice of his retained counsel. He was placed on probation for three years and the imposition of sentence was deferred. As conditions of his probation he was required to serve 90 days in the county jail and make restitution. On May 2, 1963, a bench warrant for his arrest was issued based on a report that he had violated the terms of his probation and had left the State.
7
On February 24, 1964, Walkling was arrested and charged with forgery and grand larceny. After being transferred back to Thurston County he was brought before the court on May 12, 1964, for a hearing on the petition by the prosecuting attorney to revoke his probation. Petitioner then requested a continuance to enable him to retain counsel and was granted a week. On May 18, 1964, the hearing was called and Walkling appeared without a lawyer. He informed the court that he had retained an attorney who was supposed to be present. After waiting for 15 minutes the court went ahead with the hearing in the absence of petitioner's counsel. He was not offered appointed counsel and would not have had counsel appointed for him had he requested it. Whether he made such a request does not appear from the record.
8
At the hearing a probation officer presented hearsay testimony to the effect that petitioner had committed the acts alleged in the 14 separate counts of forgery and 14 separate counts of grand larceny that had been charged against petitioner previously at the time of his arrest. The court thereupon revoked probation and imposed the maximum sentence of 15 years on Walkling on his prior second degree burglary conviction. Because of the failure of the State to keep a record of the proceeding, nothing is known as to whether Walkling was advised of his right to appeal. He did not, however, take an appeal.
9
In May 1966 Walkling filed a habeas corpus petition with the Washington Supreme Court, claiming denial of his right to counsel at the combined probation revocation and sentencing proceeding. The petition was denied on the authority of the prior decision in Mempa v. Rhay, supra. We granted certiorari, 386 U.S. 907, 87 S.Ct. 849, 17 L.Ed.2d 781 (1967), and the cases were consolidated for argument.
10
In 1948 this Court held in Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690, that the absence of counsel during sentencing after a plea of guilty coupled with 'assumptions concerning his criminal record which were materially untrue' deprived the defendant in that case of due process. Mr. Justice Jackson there stated in conclusion, 'In this case, counsel might not have changed the sentence, but he could have taken steps to see that the conviction and sentence were not predicated on misinformation or misreading of court records, a requirement of fair play which absence of counsel withheld from this prisoner.' Id., at 741, 68 S.Ct., at 1255. Then in Moore v. State of Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957), where a denial of due process was found when the defendant did not intelligently and understandingly waive counsel before entering a plea of guilty, this Court emphasized the prejudice stemming from the absence of counsel at the hearing on the degree of the crime following entry of the guilty plea and stated, 'The right to counsel is not a right confined to representation during the trial on the merits.' Id., at 160, 78 S.Ct., at 194.
11
In Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), it was held that failure to appoint counsel at arraignment deprived the petitioner of due process, notwithstanding the fact that he simply pleaded not guilty at that time, because under Alabama law certain defenses had to be raised then or be abandoned. See also Reece v. State of Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955), and White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963).
12
All the foregoing cases, with the exception of White, were decided during the reign of Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), and accordingly relied on various 'special circumstances' to make the right to counsel applicable. In Gideon v. Wain-wright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), however, Betts was overruled and this Court held that the Sixth Amendment as applied through the Due Process Clause of the Fourteenth Amendment was applicable to the States and, accordingly, that there was an absolute right to appointment of counsel in felony cases.
13
There was no occasion in Gideon to enumerate the various stages in a criminal proceeding at which counsel was required, but Townsend, Moore, and Hamilton, when the Betts requirement of special circumstances is stripped away by Gideon, clearly stand for the proposition that appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected. In particular, Townsend v. Burke, supra, illustrates the critical nature of sentencing in a criminal case and might well be considered to support by itself a holding that the right to counsel applies at sentencing.3 Many lower courts have concluded that the Sixth Amendment right to counsel extends to sentencing in federal cases.4
14
The State, however, argues that the petitioners were sentenced at the time they were originally placed on probation and that the imposition of sentence following probation revocation is, in effect, a mere formality constituting part of the probation revocation proceeding. It is true that sentencing in Washington offers fewer opportunities for the exercise of judicial discretion than in many other jurisdictions. The applicable statute requires the trial judge in all cases to sentence the convicted person to the maximum term provided by law for the offense of which he was convicted. Wash.Rev.Code § 9.95.010. The actual determination of the length of time to be served is to be made by the Board of Prison Terms and Paroles within six months after the convicted person is admitted to prison. Wash.Rev.Code § 9.95.040.
15
On the other hand, the sentencing judge is required by statute, together with the prosecutor, to furnish the Board with a recommendation as to the length of time that the person should serve, in addition to supplying it with various information about the circumstances of the crime and the character of the individual. Wash.Rev.Code § 9.95.030. We were informed during oral argument that the Board places considerable weight on these recommendations, although it is in no way bound by them. Obviously to the extent such recommendations are influential in determining the resulting sentence, the necessity for the aid of counsel in marshaling the facts, introducing evidence of mitigating circumstances and in general aiding and assisting the defendant to present his case as to sentence is apparent.
16
Even more important in a case such as this is the fact that certain legal rights may be lost if not exercised at this stage. For one, Washington law provides that an appeal in a case involving a plea of guilty followed by probation can only be taken after sentence is imposed following revocation of probation. State v. Farmer, 39 Wash.2d 675, 237 P.2d 734 (1951).5 Therefore in a case where an accused agreed to plead guilty, although he had a valid defense, because he was offered probation, absence of counsel at the imposition of the deferred sentence might well result in loss of the right to appeal. While ordinarily appeals from a plea of guilty are less frequent than those following a trial on the merits, the incidence of improperly obtained guilty pleas is not so slight as to be capable of being characterized as de minimis. See, e.g., United States ex rel. Elksnis v. Gilligan, 256 F.Supp. 244 (D.C.S.D.N.Y.1966). Cf. Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962).6
17
Likewise the Washington statutes provide that a plea of guilty can be withdrawn at any time prior to the imposition of sentence, Wash.Rev.Code § 10.40.175. State v. Farmer, supra, if the trial judge in his discretion finds that the ends of justice will be served, State v. Shannon, 60 Wash.2d 883, 376 P.2d 646 (1962). Without undertaking to catalog the various situations in which a lawyer could be of substantial assistance to a defendant in such a case, it can be reiterated that a plea of guilty might well be improperly obtained by the promise to have a defendant placed on the very probation the revocation of which furnishes the occasion for desiring to withdraw the plea. An uncounseled defendant might very likely be unaware of this opportunity.
18
The two foregoing factors assume increased significance when it is considered that, as happened in these two cases, the eventual imposition of sentence on the prior plea of guilty is based on the alleged commission of offenses for which the accused is never tried.
19
In sum, we do not question the authority of the State of Washington to provide for a deferred sentencing procedure coupled with its probation provisions. Indeed, it appears to be an enlightened step forward. All we decide here is that a lawyer must be afforded at this proceeding whether it be labeled a revocation of probation or a deferred sentencing. We assume that counsel appointed for the purpose of the trial or guilty plea would not be unduly burdened by being requested to follow through at the deferred sentencing stage of the proceeding.
20
The judgments below are reversed and the cases are remanded for further proceedings not inconsistent with this opinion.
21
Reversed and remanded.
1
The State suggests that the Supreme Court of Washington was in error in stating that Mempa received a deferred rather than a suspended sentence, but we accept that court's characterization of the sentence as supported by the record.
2
Under Washington procedure the trial judge is required by statute to impose the maximum sentence provided by law for the offense, Wash.Rev.Code § 9.95.010, but is also required, along with the prosecuting attorney, to make a recommendation to the parole board of the time that the defendant should serve accompanied by a statement of the facts concerning the crime and any other information about the defendant deemed relevant. Wash.Rev.Code § 9.95.030. However, it is the parole board that actually determines the time to be served. Wash.Rev. Code § 9.95.040. See infra, at 135.
3
See Kadish, The Advocate and the Expert—Counsel in the Peno-Correctional Process, 45 Minn.L.Rev. 803, 806 (1961).
4
E.g., Martin v. United States, 182 F.2d 225, 20 A.L.R.2d 1236 (C.A.5th Cir. 1950); McKinney v. United States, 93 U.S.App.D.C. 222, 208 F.2d 844 (1953); Nunley v. United States, 283 F.2d 651 (C.A.10th Cir. 1960).
5
State v. Proctor, 68 Wash.2d 817, 415 P.2d 634 (1966), modified the Farmer rule only to permit an appeal following placement on probation in cases involving (1) a contested trial and (2) the imposition of a jail term or fine as a condition of probation.
6
See generally Newman, Conviction—The Determination of Guilt or Innocence Without Trial (1966); Enker, 'Perspectives on Plea Bargaining,' in The President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts 108 119 (1967).
| 01
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389 U.S. 54
88 S.Ct. 184
19 L.Ed.2d 228
Howard Joseph WHITEHILL, Appellant,v.Wilson ELKINS, President, University of Maryland et al.
No. 25.
Argued Oct. 16, 1967.
Decided Nov. 6, 1967.
Sanford Jay Rosen, Baltimore, Md., for appellant.
Loring E. Hawes, Baltimore, Md., for appellees.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This suit for declaratory relief that a Maryland teacher's oath required of appellant was unconstitutional was heard by a three-judge court and dismissed. D.C., 258 F.Supp. 589. We noted probable jurisdiction. 386 U.S. 906, 87 S.Ct. 852, 17 L.Ed.2d 781.
2
Appellant, who was offered a teaching position with the University of Maryland, refused to take the following oath:
3
'I, _ _, do hereby (Print Name—including middle initial) certify that I am not engaged in one way or another in the attempt to overthrow the Government of the United States, or the State of Maryland, or any political subdivision of either of them, by force or violence.
4
'I further certify that I understand the aforegoing statement is made subject to the penalties of perjury prescribed in Article 27, Section 439 of the Annotated Code of Maryland (1957 edition).'
5
The question is whether the oath is to be read in isolation or in connection with the Ober Act (Art. 85A, Md.Ann.Code, 1957) which by §§ 1 and 13 defines a 'subversive' as '* * * any person who commits, attempts to commit, or aids in the commission, or advocates, abets, advises or teaches by any means any person to commit, attempt to commit, or aid in the commission of any act intended to overthrow, destroy or alter, or to assist in the overthrow, destruction or alteration of, the constitutional form of the government of the United States, or of the State of Maryland, or any political subdivision of either of them, by revolution, force, or violence; or who is a member of a subversive organization or a foreign subversive organization, as more fully defined in this article.' (Italics supplied.) Section 1 defines the latter terms: 'subversive organization' meaning a group that would, inter alia, 'alter' the form of government 'by revolution, force, or violence'; 'foreign subversive organization' is such a group directed, dominated, or controlled by a foreign government which engages in such activities.
6
The oath was prepared by the Attorney General and approved by the Board of Regents that has exclusive management of the university. It is conceded that the Board had authority to provide an oath, as § 11 of the Act directs every agency of the State which appoints, employs, or supervises officials or employees to establish procedures designed to ascertain before a person is appointed or employed that he or she 'is not a subversive person.' And that term is, as noted, defined by §§ 1 and 13. Our conclusion is that, since the authority to prescribe oaths is provided by § 11 of the Act and since it is in turn tied to §§ 1 and 13, we must consider the oath with reference to §§ 1 and 13, not in isolation. Nor can we assume that the Board of Regents meant to encompass less than the Ober Act, as construed, sought to cover.
7
If the Federal Constitution is our guide, a person who might wish to 'alter' our form of government may not be cast into the outer darkness. For the Constitution prescribes the method of 'alteration' by the amending process in Article V; and while the procedure for amending it is restricted, there is no restraint on the kind of amendment that may be offered. Moreover, the First Amendment, which protects a controversial as well as a conventional dialogue (Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131), is as applicable to the States as it is to the Federal Government; and it extends to petitions for redress of grievances (Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683, 9 L.Ed.2d 697) as well as to advocacy and debate. So if §§ 1 and 13 of the Ober Act are the frame of reference in which the challenged oath is to be adjudged, we have important questions to resolve.
8
We are asked to treat §§ 1 and 13 as if they barred only those who seek to overthrow or destroy the Government by force or violence. Reference is made to Gerende v. Board of Supervisors of Elections of Baltimore City, 341 U.S., 56, 71 S.Ct. 565, 95 L.Ed. 745, where, in considering the definition of 'subversive' person applicable to § 15 of the Act, governing candidates for office, we accepted the representation of the Attorney General that he would advise the proper authorities in Maryland to take and adopt the narrower version of the term 'subversive.' The Court of Appeals of Maryland had indicated in Shub v. Simpson, 196 Md. 177, 76 A.2d 332, that the purpose of the Act was to reach that group, and that the words 'revolution, force, or violence' in § 1 did not include a peaceful revolution but one accomplished by force or violence. Id., at 190—191, 76 A.2d, at 337—338. In that view the 'alteration' defined would be an alteration by force and violence. That construction had not yet been fashioned into an oath or certificate when Gerende reached us. That case involved an attempt by a candidate for public office in Maryland to require the election officials to dispense with an oath that incorporated the statutory language. The Court of Appeals refused the relief asked. We referred to the narrow construction of §§ 1 and 15 given in the Shub case saying:
9
'We read this decision to hold that to obtain a place on a Maryland ballot a candidate need only make oath that he is not a person who is engaged 'in one way or another in the attempt to overthrow the government by force or violence,' and that he is not knowingly a member of an organization engaged in such an attempt. (196) Md. at (192), 76 A.2d at 338. At the bar of this Court the Attorney General of the State of Maryland declared that he would advise the proper authorities to accept an affidavit in these terms as satisfying in full the statutory requirement. Under these circumstances and with this understanding, the judgment of the Maryland Court of Appeals is affirmed.' 341 U.S., at 56 57, 71 S.Ct., at 565.
10
As we said in Baggett v. Bullitt, 377 U.S. 360, 368, n. 7, 84 S.Ct. 1316, 1320, 12 L.Ed.2d 377, we did not pass upon or approve the statutory definition of a 'subversive' person in the Gerende case. Rather we accepted the narrowing construction tendered by the Attorney General during oral argument so as to avoid the constitutional issue that was argued.
11
It is, however, urged that § 18 of the Act which contains a severability clause makes it possible for the Maryland Attorney General and for us to separate the wheat from the chaff that may be in §§ 1 and 13. The District Court found merit in the point. 258 F.Supp., at 596. But our difficulty goes deeper. As we have said in like situations, the oath required must not be so vague and broad as to make men of common intelligence speculate at their peril on its meaning. Baggett v. Bullitt, supra; Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321; Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629. And so we are faced with the kind of problem which we thought we had avoided in Gerende.
12
As we have seen, §§ 1 and 13 reach (1) those who would 'alter' the form of government 'by revolution, force, or violence' and (2) those who are members of a subversive organization or a foreign subversive organization.
13
The prescribed oath requires, under threat of perjury, a statement that the applicant is not engaged 'in one way or another' in an attempt to overthrow the Government by force or violence. Though we assume arguendo that the Attorney General and the Board of Regents were authorized so to construe the Act as to prescribe a narrow oath (1) that excluded 'alteration' of the Government by peaceful 'revolution' and (2) that excluded all specific reference to membership in subversive groups, we still are beset with difficulties. Would a member of a group that was out to overthrow the Government by force or violence be engaged in that attempt 'in one way or another' within the meaning of the oath, even though he was ignorant of the real aims of the group and wholly innocent of any illicit purpose? We do not know; nor could a prospective employee know, save as he risked a prosecution for perjury.
14
We are in the First Amendment field. The continuing surveillance1 which this type of law places on teachers is hostile to academic freedom. As we said in Sweezy v. State of New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1211, 1 L.Ed.2d 1311:
15
'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.'
16
The restraints on conscientious teachers are obvious. As we noted in the Elfbrandt case, even attendance at an international conference might be a trap for the innocent if that conference were predominantly composed of those who would overthrow the Government by force or violence. 384 U.S., at 16—17, 86 S.Ct., at 1240—1241. 'Juries might convict though the teacher did not subscribe to the wrongful aims of the organization.' Id., at 17, 86 S.Ct., at 1241.
17
In sum, we read the oath as an integral part of the Ober Act; and we undertake to read §§ 1 and 13 of that Act in light of the gloss that the Maryland courts have placed on it. We know that the Shub case says that '(a) person who advocates the overthrow of the Government of the United States * * * through force or violence could scarcely in good faith, take the constitutional oath of office * * *.' 196 Md., at 190, 76 A.2d, at 337. (Italics supplied.) Yet that case does little more than afford the basis for argument that membership in a subversive organization means that the member must advocate a violent overthrow. This, however, is speculation, not certainty. Another Maryland case bearing on the question is Character Committee, etc. v. Mandras, 233 Md. 285, 196 A.2d 630. There an applicant for admission to the Maryland bar answered 'No' to the question 'Are you now or have you ever been a subversive person as defined by the (Ober Act)?' He had apparently at one time been a member of the Communist Party. At a hearing he testified he had joined the party because he was interested in the candidacy of Henry Wallace and in the cause of civil liberties; but he denied he had been a subversive person or that he had advocated violent overthrow of the Government. The Court of Appeals affirmed the Board of Law Examiners, finding that the applicant was not a subversive person. So it can be argued that passive membership as a matter of Maryland law does not make a person a subversive. Yet, as we read §§ 1 and 13 of the Ober Act, the alteration clause and membership clause are still befogged.2 The lines between permissible and impermissible conduct are quite indistinct. Precision and clarity are not present. Rather we find an overbreadth that makes possible oppressive or capricious application as regimes change. That very threat, as we said in another context (NAACP v. Button, 371 U.S. 415, 432—433, 83 S.Ct. 328, 337—338, 9 L.Ed.2d 405), may deter the flowering of academic freedom as much as successive suits for perjury.
18
Like the other oath cases mentioned, we have another classic example of the need for 'narrowly drawn' legislation (Cantwell v. State of Connecticut, 310 U.S. 296, 311, 60 S.Ct. 900, 906, 84 L.Ed. 1213) in this sensitive and important First Amendment area.
19
Reversed.
20
Mr. Justice HARLAN, whom Mr. Justice STEWART and Mr. Justice WHITE join, dissenting.
21
Maryland will doubtless be surprised to learn that its meticulous efforts to conform the state 'loyalty oath' to the requirements of Gerende v. Board of Supervisors of Elections of Baltimore City, 341 U.S. 56, 71 S.Ct. 565, 95 L.Ed. 745, have been to no avail. It will also be entitled to feel baffled by an opinion which, while recognizing the continuing authority of Gerende, undertakes to bypass that decision by a process of reasoning that defies analysis.
22
Appellant Whitehill was denied employment in the state university as a temporary lecturer by reason of his refusal to sign an oath that more than meets the requirements of Gerende. He was asked only whether he is now, in one way or another engaged in an attempt to overthrow the Government by force or violence.1 References to international conferences, controversial discussions, support of minority candidates, academic freedom and the like cannot disguise the fact that Whitehill was asked simply to disclaim actual, present activity amounting in effect to treasonable conduct. Allusions to the constitutional amending process cannot obscure the fact that this oath makes no reference to 'alteration' of our form of government or to 'believing in' or 'being a member of' anything whatsoever. The oath itself, then, in no way violates, jeopardizes, or beclouds appellant's freedom of speech or of association. So much, indeed, the Court's opinion appears to concede.
23
The Court concludes, however, that the oath must be read 'in connection with' certain sections of the Ober Law because, as a state matter, the authority of the Board of Regents to require an oath derives from that law. The Court does not pause to tell us what the 'connection' is or to explain how it serves to invalidate the unambiguous oath required of this appellant. On the one hand, it is plain, as the Court artistically avoids conceding, that the only effect of the law on this appellant is to deny him state employment if he refuses to sign an oath which, in itself, he can have no constitutional objection to signing. On the other hand, nowhere does the Court suggest that the character of the oath itself is altered by any language in the statute authorizing the Regents to impose it. The oath does not refer to the statute2 or otherwise incorporate it by reference. It contains no terms that are further defined in the statute. In short, the oath must be judged on its own bottom.
24
The only thing that does shine through the opinion of the majority is that its members do not like loyalty oaths. Believing that it is not within the province of this Court to pass upon the wisdom or unwisdom of Maryland's policy in this regard, and finding nothing unconstitutional about the oath tendered to this appellant, I would affirm the judgment of the court below.
1
There is not only the provision for perjury prescribed in § 11, but also § 14 which provides in part that 'Reasonable grounds on all the evidnece to believe that any person is a subversive person, as defined in this article, shall be cause for discharge' of the employee. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 175, n. 1, 71 S.Ct. 624, 650, n. 1, 95 L.Ed. 817 (concurring opinion).
2
Art. 15, § 11, of the Maryland Constitution reads:
'No person who is a member of an organization that advocates the overthrow of the Government of the United States or of the State of Maryland through force or violence shall be eligible to hold any office, be it elective or appointive, or any other position of profit or trust in the Government of or in the administration of the business of this State or of any county, municipality or other political subdivision of this State.'
Shub tells us that the Ober Act was enacted pursuant to this state constitutional provision. 196 Md., at 192, 76 A.2d, at 338. Our attention is not drawn to, nor have we found, any severability clause applicable to this constitutional provision. It is certainly dubious, then, whether the severability clause of the Ober Act can operate to 'sever' the membership clause in the definition of subversive person so that it reads more narrowly than the constitutional provision upon which the Ober Act rests.
1
The oath did not even include the limited sort of 'membership' clause also approved in Gerende. See the Court's opinion, ante, at 55—56, 57-58.
2
The document submitted to appellant for his signature did contain the notation customary to government documents of the authority under which it was promulgated.
| 23
|
389 U.S. 155
88 S.Ct. 367
19 L.Ed.2d 383
UNITED STATES of America, Plaintiff,v.STATE OF LOUISIANA et al.
No. 9.
Argued Oct. 9, 1967.
Decided Dec. 4, 1967.
Rehearing Denied Jan. 15, 1968.
See 389 U.S. 1059, 88 S.Ct. 757.
Louis F. Claiborne, Washington, D.C., for plaintiff.
Victor A. Sachse, Baton Rouge, La., for defendant, State of Louisiana.
Houghton Brownlee, Jr., Austin, Tex., and Crawford C. Martin, Hillsboro, Tex., for defendant, State of Texas.
Mr. Justice BLACK delivered the opinion of the Court.
1
In United States v. State of California (the first California case), 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947), we held that the States did not own the submerged lands off their coastlines and that the United States had paramount rights in these lands. Some States violently objected to this decision claiming that they had historically owned at least out to a distance of three geographical miles from their coastlines; others asserted a historical claim out to three marine leagues from their coastlines. Responding to these objections, Congress in 1953 passed the Submerged Lands Act, 67 Stat. 29, 43 U.S.C. §§ 1301 1315, which makes two entirely separate types of grants of submerged land to the States. The first is an unconditional grant allowing each coastal State to claim a seaward boundary out to a line three geographical miles distant from its 'coast line.' The second is a grant conditioned upon a State's prior history. It allows those States bordering on the Gulf of Mexico, which at the time of their entry into the Union had a seaward boundary beyond three miles, to claim this historical boundary 'as it existed at the time such State became a member of the Union,' but with the maximum limitation that no State may claim more than 'three marine leagues' (approximately nine miles). In United States v. States of Louisiana, Texas, Mississippi, Alabama, and Florida, 363 U.S. 1, 80 S.Ct. 961, 4 L.Ed.2d 1025 (1960), we held that Texas qualified for this conditional three-league grant. We did not decide, however, what is the 'coast line' from which this three-league grant is measured. That question was specifically reserved.1 Texas now claims that, for purposes of the three-league grant, its coastline extends to the seaward edge of artificial jetties constructed by it in the Gulf of Mexico and that it is entitled to lease certain submerged lands, portions of which lie more than three leagues from any part of the natural shoreline of Texas, but within three leagues of these jetties. The United States claims these portions for itself and invokes our original jurisdiction for a supplemental decree to that effect. The question we must decide is whether Congress intended that this grant, based as it is on the historical boundaries of the State, be measured from artificial jetties constructed many years after the State's entry into the Union. For reasons to be stated we reject Texas' contention and hold, as the Act clearly says, that its three-league claim must be measured to 'such boundary as it existed at the time such State became a member of the Union.'
2
Texas relies heavily on this Court's prior decision in the second California case, United States v. State of California, 381 U.S. 139, 85 S.Ct. 1401, 14 L.Ed.2d 296 (1965). Our opinion there, however, dealt, not with the conditional statutory grant we have here, but with the other unconditional grant—the congressional creation of a new and standard three-mile seaward boundary for all coastal States. While some States in the past had claimed three-mile seaward boundaries—a claim explicitly rejected by this Court in the first California case, supra—Congress made it clear by the following wording in § 4 of the Submerged Lands Act that it was establishing a new standard boundary for all coastal States: 'Any State admitted subsequent to the formation of the Union which has not already done so may extend its seaward boundaries to a line three geographical miles distant from its coast line * * *.' 67 Stat. 31, 43 U.S.C. § 1312. The decision in the second California case, supra, held that Congress had left it up to this Court to define the 'coast line' from which the standard three-mile grant was to be measured. The Court then borrowed the international definition of coastline in the Convention on the Territorial Sea and the Contiguous Zone, (1964) 15 U.S.T. (Pt. 2) 1607, T.I.A.S. No. 5639, used by the United States in its foreign relations with other countries, reasoning that '(t)his establishes a single coastline for both the administration of the Submerged Lands Act and the conduct of our future international relations * * *. Furthermore the comprehensiveness of the Convention provides answers to many of the lesser problems related to coastlines which, absent the Convention, would be most troublesome.' United States v. State of California, 381 U.S. 139, 165, 85 S.Ct. 1401, 1415, 14 L.Ed.2d 296 (1965).
3
Article 8 of this Convention makes the following provision for artificially constructed extensions into the sea: 'For the purpose of delimiting the territorial sea, the outermost permanent harbour works which form an integral part of the harbour system shall be regarded as forming part of the coast.' (1964) 15 U.S.T. (Pt. 2) 1607, 1609. Thus, it is clear that in the case of the three-mile unconditional grant artificial jetties are a part of the coastline for measurement purposes, and if Texas were claiming under the standard three-mile grant, its argument regarding the jetties would be far more persuasive.
4
Texas has not claimed the standard three-mile grant, however, but has asserted ownership over three marine leagues or approximately nine miles of submerged land, and this Court has sustained that claim. United States v. States of Louisiana, Texas, Mississippi, Alabama, and Florida, supra. This it was allowed to do under that part of the Act providing the special conditional historical grant. There is a critical distinction, however, between this historical grant and the unconditional three-mile grant. The three-mile grant involved in the second California case is not keyed to the State's boundary as of any particular date, but the three-league grant is keyed to a State's boundary as of the date it entered the Union. This is clear from the words of § 2(a) of the Act which state that the historical grant extends 'to the boundary line of each such State where in any case such boundary as it existed at the time such State became a member of the Union * * * extends seaward (or into the Gulf of Mexico) beyond three geographical miles * * *.' 67 Stat. 29, 43 U.S.C. § 1301. (Emphasis added.) This meaning is reinforced by the wording of § 4 which states that '(n)othing in this section is to be construed as questioning or in any manner prejudicing the existence of any State's seaward boundary beyond three geographical miles if it was so provided by its constitution or laws prior to or at the time such State became a member of the Union * * *.' 43 U.S.C. § 1312. (Emphasis added.) This his torical grant of three marine leagues is through § 2(b) of the Act made to apply only to those States bordering the Gulf of Mexico. 43 U.S.C. § 1301.
5
In effect what Congress has done is to take into consideration the special historical situations of a few Gulf States and provide that where they can prove ownership to submerged lands in excess of three miles at the time they entered the Union, these historical lands will be granted to them up to a limitation of three marine leagues. No new state boundary is being created, but a State which qualifies simply is being given the same area it had when it entered the Union. Unlike the three-mile grant where this Court held that Congress left boundary definitions up to it, here Congress granted land the boundaries of which are determined by fixed historical facts. This is clear from the wording of the statute itself. In making the three-mile grant Congress speaks in terms of 'three geographical miles distant from its coast line'. 43 U.S.C. § 1312. (Emphasis added.) In the three-league grant, however, the term 'coast line' is omitted and in its place the word 'boundary' is used with the following express qualification: 'as it existed at the time such State became a member of the Union * * *.' No definitions are required by this Court and there is no need to resort to international law; Texas has simply been given that amount of submerged land it owned when it entered the Union.
6
Thus, the State of Texas, which has been allowed by the United States to claim a larger portion of submerged lands because of its historical situation, is limited in its claim by fixed historical boundaries. It may not combine the best features of both grants in order to carve out the largest possible area for itself. If it wishes to take advantage of the present three-mile grant then it may use its present coastline as defined by Article 8 of the Convention on the Territorial Sea and the Contiguous Zone, supra, to include artificial jetties. But if Texas wishes to take under the more expansive historical grant, it must use boundaries as they existed in 1845 when Texas was admitted to the Union. At that time there were no artificial jetties in existence so obviously they are not considered.
7
It cannot be ignored that the application of the Convention to Texas here would allow Texas, unlike all other States except Florida,2 to expand its own state boundaries beyond the congressional limitation simply because of a rule governing the relationships between maritime nations of the world. This is a domestic dispute which must be governed by the congressional grant. There is no reason why an international treaty should be applied when it simply works to take away land from the United States in order to give to Texas more land than it ever claimed historically. We cannot believe that Congress intended such a result.
8
Thus, we hold today that the congressional grant to Texas of three marine leagues of submerged land is measured by the historical state boundaries 'as they existed' in 1845 when Texas was admitted into the Union. The United States is entitled to a supplemental decree to this effect, and we grant 60 days to each of the parties in which to submit proposed supplemental decrees for our consideration.
9
Decree for the United States.
10
The CHIEF JUSTICE and Mr. Justice MARSHALL took no part in the consideration or decision of this case.
11
Mr. Justice STEWART, concurring in the result.
12
The Submerged Lands Act in § 3(a) grants to the States 'ownership of the lands beneath navigable waters within the boundaries of the respective States * * *.' 67 Stat. 30, 43 U.S.C. § 1311. The critical term 'boundaries' is given three alternative definitions in § 2(b) of the Act:
13
1. 'boundaries * * * as they existed at the time such State became a member of the Union,' or
14
2. 'boundaries * * * as heretofore approved by the Congress,' or 3. 'boundaries * * * as extended or confirmed pursuant to section 4,' i.e., 'three geographical miles distant from (the State's) coast line * * *.'1
15
We deal here with the first of these three alternative definitions of 'boundaries' in § 2(b). In United States v. States of Louisiana, Texas, Mississippi, Alabama, and Florida, 363 U.S. 1, 80 S.Ct. 961, 4 L.Ed.2d 1025 this Court upheld Texas' claim to a historic boundary based on the Republic of Texas Boundary Act of 1836, which was in effect at the time of the Annexation Resolution of 1845. That Act described Texas' boundary in the Gulf of Mexico as running 'three leagues from land.'
16
Texas now contends that the location of its historic boundary is to be determined by measuring out three leagues from harbor jetties constructed sometime after 1845. This seemingly anomalous result is required, Texas argues, by the second California case, United States v. State of California, 381 U.S. 139, 85 S.Ct. 1401, 14 L.Ed.2d 296. I cannot agree. The second California case dealt with a single issue: the meaning of the term 'coast line' for purposes of the third alternative definition of 'boundaries' in § 2(b).2 But Texas does not claim a boundary under that definition, and the term 'coast line' simply does not appear in the definition of 'boundaries' under which Texas does assert its claim. The second California case is, therefore, basically irrelevant.
17
My Brother HARLAN reaches the result urged by Texas but for very different reasons. He construes the statutory phrase 'boundaries as they existed' as referring to the 'three leagues from land' formula of the Texas Boundary Act, and then applies this 1845 formula to present Texas shore conditions. The Court, on the other hand, construes 'boundaries as they existed' as referring, not to the 1845 formula, but to a particular line—the line resulting from the application of the 1845 formula to 1845 conditions.
18
The difference between majority and dissent thus turns on a narrow question: whether the word 'boundaries' in the first alternative definition in § 2(b) refers to an operative definition or to a line. I adopt the latter construction because I think the former plays havoc with the ordinary understanding of the word 'boundaries' and because the legislative history does not persuade me that Congress meant to use that word in an unusual sense. It is, of course, true that boundaries may shift when a constant operative definition is applied to changing conditions. But the ordinary understanding of the word 'boundaries' is the resultant line, not the operative definition. Finally, when the phrase 'as they existed' is appended to the word 'boundaries,' it simply does not make semantic sense to interpret 'boundaries' as a general definition rather than a particular line.
19
For these reasons, I concur in the conclusions of the Court in this case.
20
Mr. Justice HARLAN, dissenting.
21
At the outset, it is worth remarking that this case is but an epilogue to our decision in United States v. Louisiana, 363 U.S. 1, 80 S.Ct. 961, 4 L.Ed.2d 1025 and arises out of the reservation of jurisdiction in this Court's decree in that proceeding. It is not a new case in its own right. Had the Court paused to remind itself of that fact it might have been less ready to cut loose from basic things that were decided there. For reasons stated in this opinion, I believe that the decision upon the issue now in dispute should be in favor of the Texas position.
22
The question in this proceeding is whether artificial jetties, constituting permanent harbor works, are to be reckoned as part of the base line in calculating the three-league grant of submerged lands in the Gulf of Mexico to which we have already held Texas is entitled under the Submerged Lands Act. The opinions of the majority declare that they may not be, by a beguilingly simple process of reasoning that boils down to this syllogism: the outward limit of Texas' three-league grant is determined under the Act by the location of its maritime boundary 'as it existed' in 1845, when it was admitted to the Union; these harbor works were not in existence at that time; therefore, these works play no part in fixing the location of the boundary. Our decision in United States v. California, 381 U.S. 139, 85 S.Ct. 1401, 14 L.Ed.2d 296, wherein we held that similar harbor works were includable in calculating the outward limit of California's submerged lands grant, has no application, it is said, because California's grant was not dependent upon its 'admission' boundary.
23
The major premise of the majority's reasoning is, I believe, demonstrably wrong. The assumption that the statutory term 'as it existed' was intended to freeze Texas' seaward boundary (and hence the extent of the Act's grant) as of 1845 is fundamentally inconsistent with the basis on which we held in the initial stage of this case that Texas was entitled to a three-league grant at all. The Court's prior opinion upheld the claims of Texas only because Texas now has a valid state boundary 'three leagues from land.'1 This present boundary is entirely independent of the Submerged Lands Act, which neither created it nor affected its location. The question before the Court at this time is not where that boundary was in 1845, but where it is now.
24
The words 'as it existed' were fully and carefully interpreted in the Court's earlier opinion, and they were held to serve a purpose different from and irrelevant to the determination of the location of any state boundary. Contrary to the impression left by today's opinion, the language of the grant made in the Submerged Lands Act does not contain these words. The operative section of the Act simply grants to every coastal State 'title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters.'2 To take under this language, a State may either prove an existing boundary, subject to a limitation of three leagues in the Gulf of Mexico and of three miles in the Atlantic or Pacific Ocean, or establish a new boundary three miles from its coastline pursuant to a separate section of the Act.3 The State must, however, presently have some boundary in order to take anything. The term 'boundaries' is defined elsewhere in the Act to include boundaries 'as they existed at the time such State became a member of the Union, or as heretofore approved by the Congress.'4 The purpose of this section, we held, was simply to restrict claims to boundaries that had, at one time or another, been approved by Congress.5
25
On the basis of this understanding of the term 'as it existed,' we held in our prior opinion that the present maritime boundary of the State of Texas is defined by the Republic of Texas Boundary Act of 1836,6 because that Act was approved by Congress pursuant to its 1845 Resolution of Annexation of Texas.7 That Act claimed for Texas a boundary 'three leagues from land.' As the United States here concedes, maritime boundaries defined by reference to the shore are inherently mobile with changes in the configuration of the shoreline. Hence the present location of the boundary line drawn in 1836 is not necessarily the same as its location in 1836 or 1845. Below, after presenting in some detail the argument that the limit of the Submerged Lands Act grant is the present location of the historical boundary of the State of Texas, I shall consider the question whether these artificial jetties are to be included in determining that location.
I.
26
The Court's opinion in United States v. State of Louisiana, supra, makes it abundantly clear that the question now before us is the present location of the Texas boundary that was acknowledged in 1845, and that the words 'as it existed' were not intended to answer that question.
A. THE USE OF PRESENT BOUNDARIES.
27
As the earlier opinion explained, the congressional assumption that some States have existing historic boundaries was based on the history of this Court's treatment of submerged lands.8 The Court had early held that the States owned the land beneath their inland navigable waters. Pollard's Lessee v. Hagan, 44 U.S. 212, 3 How. 212, 11 L.Ed. 565. Following that case it was widely believed that the same rule would apply to the marginal sea, that is, that the States owned the land beneath the waters of the sea within their boundaries.9 This belief was based on two assumptions neither of which was authoritatively tested until the 1940's: first, that at least some States had valid boundaries in the sea, and second, that the States owned submerged land within them. In a series of cases beginning in 1947, the second assumption was destroyed by this Court: the United States was held to have paramount rights in offshore lands as an attribute of national sovereignty.10 The first assumption, however, was explicitly left standing by those decisions:
28
'* * * The question here is not the power of a State to use the marginal sea or to regulate its use in absence of a conflicting federal policy * * *.
29
'* * * We intimate no opinion on the power of a State to extend, define, or establish its external territorial limits or on the consequences of any such extension vis a vis persons other than the United States * * *. The matter of State boundaries has no bearing on the present problem.'11 (Emphasis added.)
30
As we held in the earlier phase of the present case, Congress' purpose in the Submerged Lands Act was to restore the situation to what it had assumed it to be prior to 1947, and its method of doing this was to 'quitclaim' back to the States the 'paramount rights' that this Court had found to be an attribute of national sovereignty.12 This quitclaim, like the cases that led to it, had nothing to do with the validity or location of state maritime boundaries. As Senator Cordon, the Acting Chairman of the Committee on Interior and Insular Affairs and the bill's chief exponent in the Senate, put the matter,
31
'The States of the United States have legal boundaries. It is not a part of the power or the duty of Congress to make determination with reference to those boundaries, or where those boundaries should lie. It is a matter for the courts to determine, or for the United States * * * and * * * the several States, to reach an agreement upon. The pending bill does not seek to invade either province. * * * Whenever a question arises as to a boundary, it will be determined exactly as any other question in law is determined, and the boundary will be established. * * *
32
' * * * It is not within the province of Congress to change the present boundaries of Texas without the consent of the State of Texas.' 99 Cong.Rec. 2620. (Emphasis added.)
33
In the Court's prior opinion in this litigation we expressly adopted this construction of the Act. We accepted the then contention of the United States that the 'Act did not purport to determine, fix, or change the boundary of any State, but left it to the courts to ascertain whether a particular State had a seaward boundary.'13 We went on to say,
34
'(W)e find a clear understanding by Congress that the question of rights beyond three miles turned on the existence of an expressly defined state boundary beyond three miles. Congress was aware that several States claimed such a boundary. Texas throughout repeatedly asserted its claim that when an independent republic its statutes established a three-league maritime boundary, and that the United States ratified that boundary when Texas was admitted to the Union * * *.
35
'It was recognized (by Congress) that if the legal existence of such boundaries could be established, they would clearly entitle the respective States to submerged land rights to that distance under an application of the Pollard rule to the marginal sea. Hence * * * the right of the Gulf States to prove boundaries in excess of three miles was preserved.'14
36
B. THE WORDS 'AS THEY EXISTED.'
37
In the first phase of this case, the problem was which, if any, of the five Gulf States had boundaries that were cognizable for purposes of the Submerged Lands Act grant. Congress had limited boundaries so cognizable to boundaries 'as they existed' at admission or 'as heretofore approved' by Congress. The Court's decision at that time therefore turned entirely on the meaning of those two terms, which were consequently subjected to exacting analysis. We at that time rejected a contention made on behalf of the States, but apparently now adopted by the Court, that the words 'as they existed' referred simply to the location of state boundaries at the time of admission;15 we held, quite to the contrary, that the purpose of these words was not to affect the location of present state boundaries but to single out those boundary claims that had at one time or another been approved by Congress as the only ones cognizable under the Act. We reasoned as follows:
38
'The earlier 'quitclaim' bills defined the grant in terms of presently existing boundaries, since such boundaries would have circumscribed the lands owned by the States under an application of Pollard to the marginal sea. * * * Some suggestions were made, however, that States might by their own action have effectively extended, or be able to extend, their boundaries subsequent to admission. To exclude the possibility that States might be able to establish present boundaries based on extravagant unilateral extensions, * * * subsequent drafts of the bill introduced the twofold test of the present Act—boundaries which existed at the time of admission and boundaries heretofore approved by Congress. It is apparent that the purpose of the change was not to alter the basic theory of the grant, but to assure that the determination of boundaries would be made in accordance with that theory—that the States should be 'restored' to the ownership of submerged lands within their present boundaries, determined, however, by the historic action taken with respect to them jointly by Congress and the State.'16 (Emphasis added.)
39
It was on this theory that we held that the words 'as they existed' should properly be read to refer to the 'moment of admission' rather than to preadmission claims, because Congress' purpose had been to allow only claims that it had approved.17
40
Having defined the term 'as they existed' to mean 'as acknowledged by Congress at the moment of admission,' the Court in the prior litigation went on to hold that the Resolution of Annexation of 184518 had, indirectly, been a congressional acknowledgment of the boundary established by the Republic of Texas Boundary Act of 1836, and that this Act therefore defines Texas' present boundary.19 The Act reads, in relevant part, as follows:
41
'beginning at the mouth of the Sabine river, and running west along the Gulf of Mexico three leagues from land, to the mouth of the Rio Grande * * *.' 1 Laws, Republic of Texas 133. (Emphasis in the Court's prior opinion.20)
42
The problem before us here—where the boundary of Texas is must be answered by determining where 'three leagues from land' now is, for Texas has no historic boundary claim at all unless it is to 'three leagues from land.' The question is one that the Court does not even reach: should the words 'from land' be taken, today, to refer to the shoreline in 1836, or 1845, or to the present shoreline, and, if to the last of these, should 'land' include artificial accretions built upon the land? It is to that question that I now turn.
II.
43
Texas' historic claim, by which the location of its present boundary must be determined, was to 'three leagues from land.' As the United States concedes, a boundary measured by the location of the edge of a body of water is inherently ambulatory. In its brief here, the United States put the matter this way:
44
'* * * Where a waterline is a boundary, the boundary follows the waterline through all its gradual, natural changes (Jeffries v. East Omaha Land Co., 134 U.S. 178, 189 (10 S.Ct. 518, 520, 33 L.Ed. 872); Banks v. Ogden, 2 Wall. 57, 67 (17 L.Ed. 818); Jones v. Johnston, 18 How. 150 (15 L.Ed. 320); New Orleans v. United States, 10 Pet. 662, 717 (15 L.Ed. 320)) * * *.
45
* * * The location of the boundary changes, but it is the same, not a new, boundary.'21
46
At the very least, then, the present boundary of Texas must be measured from its present shoreline, which may have suffered accretion or erosion since 1836, and not from its 1845 shoreline.
47
The next question is whether the 'land' whose present location is the base line from which to measure Texas' historic claim to 'three leagues' includes artificial extensions of land such as the jetties that are at issue in this case. There can be no doubt, as the Court's opinion recognizes, that any maritime boundary established today would be taken to incorporate existing artificial structures of the kind built on the Texas coast and to be ambulatory with any such future artificial accretions. In United States v. State of California, 381 U.S. 139, 176, 85 S.Ct. 1401, we specifically held that the three-mile boundary established by the Submerged Lands Act for States without historic boundaries would be measured from existing artificial structures and from future artificial structures as they might be built. We based our decision on the conclusion that Article 8 of the Convention on the Territorial Sea and the Contiguous Zone, quoted in the Court's opinion, ante, at 158, reflected a national and international view on this matter which should be taken to be incorporated within the three-mile-boundary section of the Submerged Lands Act.22
48
At the time of this California decision the argument was made what it would be undesirable to allow a State to extend its territory unilaterally by building onto the shoreline. We rejected that argument, finding a sufficient answer in the fact that the navigational servitude possessed by the United States gives it plenary power to forbid or regulate the construction of artificial extensions of the coast-line.23 Furthermore, under the principle of the Convention only 'permanent harbour works' forming an 'integral part of the harbour system' count as part of the shore for measuring purposes, so no trifling construction will have the effect of moving a boundary.
49
The parties here have stipulated that the jetties in question fall within the Convention's definition of 'permanent harbour works.' In other words, were these jetties on the Coast of California, they would be treated as part of the 'coast line' in determining the extent of California's statutory grant of submerged lands within three miles of its 'coast line.' The precise issue before us is whether the Convention principle should now be taken to be incorporated into the claim of 'three leagues from land' in the Republic of Texas Boundary Act as it was incorporated into the term 'coast line' used in the Submerged Lands Act.
50
The Court appears to conclude that a different result should be reached in the case of Texas because '(u)nlike the three-mile grant where this Court held that Congress left boundary definitions up to it, here Congress granted land the boundaries of which are determined by fixed historical facts.' Ante, at 159-160. This statement in itself is correct, but the result does not follow. In the case of California, we were dealing with Congress' term 'coast line' and we held that Congress had left us considerable latitude in interpreting it. In the case of Texas, to which Congress has granted land out to its 'boundaries,' the question left to this Court is narrower: we must determine whether the Texas Act defining those boundaries should be interpreted as of today to include artificial extensions of the shoreline in the base line for measuring those boundaries. That Congress referred us to an ancient boundary claim hardly justifies our assuming that that claim is self-explanatory.
51
Whether the words 'three leagues from land,' written in 1836, should now be held to mean 'three leagues from the natural shore' or 'three leagues from the coast line' as that phrase would be interpreted today is of course not an easy question. So far as we know, Texas had no artificial extensions of its coast in 1836 or 1845, and there is every reason to assume that it gave no thought to the present problem. Nor does it appear that any other sovereign in the 19th century had occasion to consider the question.
52
We are thus constrained, as one writer would have it, to guess what the Texas Legislature 'would have intended on a point not present to its mind, if the point had been present.24 Since Congress in effect left the interpretation of the Republic of Texas Boundary Act to us, that exercise involves no speculation as to how Congress interpreted or would have interpreted that Texas Act. The soundest principle of interpretation, it seems to me, is to assume that Texas would have come to the same conclusion that was reached by every nation that discussed the issue when itdid arise. That conclusion, which was not only unanimous but also obvious and natural, was that maritime boundaries move as the shoreline on the sea is extended.
53
The question apparently first arose in the 1920's. The Preparatory Committee for the League of Nations Conference for the Codification of International Law, to be held at The Hague in 1930, submitted to the various nations the question 'how the baseline for measuring the breadth of territorial waters is to be fixed in front of ports.'25 Great Britain and several other nations responded, 'In front of ports, the base line from which the territorial waters are measured passes across the entrance from the outermost point or harbour work on one side to the outermost point or harbour work on the other side.'26 The United States quickly adopted the British suggestion.27 Several nations, although not, like Great Britain, expressing the principle in the present tense as an existing rule, said that much the same principle 'should be' the rule.28 All together, of 18 responses received by the Preparatory Committee, none favored a different base line.29 The Committee then formulated the principle that 'territorial waters are measured from a line drawn between the outermost permanent harbour works,' and commented that 'agreement exists' on this principle.30
54
Because of disagreement over unrelated matters, the Hague Conference produced no treaty on territorial waters.31 The matter was raised again, however, beginning in 1952, and the International Law Commission drafted the document that became, in 1958, Article 8 of the Convention on the Territorial Sea and the Contiguous Zone, ante, at 158. The ILC's comment was 'This article is consistent with the positive law now in force.'32 The ILC draft was presented to the UN Conference on the Law of the Sea, where M. Francois, the Expert to the Secretariat of the Conference, commented that 'States had long regarded harbour works such as jetties as part of their land territory and that practice should be universally recognized as unchallengeable.'33 The principle was adopted by the Conference, after discussion and without dissent, and became Article 8.
55
The United States here contends that because the outermost harbor-works principle had not been articulated in 1836 or 1845, it should not now be a basis for interpreting the Republic of Texas Boundary Act. The premise of this contention is sound: an ancient statute should ordinarily be interpreted in light of the doctrines prevailing at the time it was passed, rather than of subsequent changes in governing principles. But the conclusion drawn from this premise by no means follows in this instance. The outermost permanent harbor-works principle was not a new rule substituted for an older, conflicting one. It was simply the first answer to a problem that had not arisen before. The unanimity of nations in 1930 strongly suggests that Texas, had it considered the problem in 1836, would have reached the same conclusion.
56
The conclusion that the Texas Boundary Act should be read today in light of the outermost harbor-works principle is fortified by the fact that the result to which this reading leads is eminently sensible. Considerations of history aside, there is no good reason (and certainly there is no suggestion in the Submerged Lands Act or its legislative history) why the principles governing measurement of the present-day boundary of the State of Texas should be different from those that govern both the measurement of the boundary of California and the measurement of the boundary of the United States in the Gulf of Mexico opposite Texas. Furthermore, the various practical considerations that led the nations of the world to agree unanimously on the principle of Article 8 should surely have considerable force here. The Court's rule, maintaining the boundary of Texas immobile at its 1845 location, seems highly unworkable even if it now proves possible to determine that location at all;34 for the result of such a rule is that at some future time not only artificial but natural extensions of the land mass might prove to be outside of 'Texas.' The alternative, suggested by the United States here but rejected by the United States for international purposes, would be to make the boundary mobile with respect to natural, but immobile with respect to artificial, changes. Such a rule involves obvious difficulties: the construction of harbor works may affect the configuration of the entire shoreline, making it soon impossible to determine where the 'natural change ends and the 'artificial' change begins. The outermost permanent harbor-works principle, then, seems almost inevitable.
57
Believing that the limit of Texas' submerged land grant is its present boundary, that that boundary is defined by the Republic of Texas Boundary Act of 1836, and that that Act defines a boundary that should now be measured from the outermost points of the jetties in question. I respectfully dissent from the Court's determination of the issue before us.
1
Louisiana was the only State to raise the question and our answer was as follows: 'We decide now only that Louisiana is entitled to submerged-land rights to a distance no greater than three geographical miles from its coastlines, wherever those lines may ultimately be shown to be.' 363 U.S., at 79, 80 S.Ct., at 1005. (Emphasis added.)
2
In United States v. State of Louisiana, Texas, Mississippi, Alabama and Florida, 363 U.S. 1, 121, 80 S.Ct. 961, 1026, 4 L.Ed.2d 1025, 1096 (1960), we held that Florida also was entitled to the historical three-league grant. Since historical claims by the other Gulf States of Louisiana, Mississippi, and Alabama were rejected in United States v. States of Louisiana, Texas, Mississippi, Alabama and Florida, 363 U.S. 1, 80 S.Ct. 961, 4 L.Ed.2d 1025 (1960), Texas and Florida are the only two States which qualify for the expansive grant of three marine leagues instead of the grant of three miles.
1
A proviso to § 2(b) establishes a maximum for any of the three boundary definitions: '(I)n no event shall the term 'boundaries' * * * be interpreted as extending from the coast line more than three geographical miles into the Atlantic Ocean or the Pacific Ocean, or more than three marine leagues into the Gulf of Mexico * * *.'
2
Presumably the construction there adopted would also apply to the term 'coast line' in the maximum proviso of § 2(b), n. 1, supra, but the United States does not contend that Texas' claim exceeds the § 2(b) maximum.
1
See infra, at 171.
2
,67 Stat. 30, 43 U.S.C. § 1311(a).
3
67 Stat. 31, 43 U.S.C. § 1312.
4
67 Stat. 29, 43 U.S.C. § 1301(b).
5
363 U.S., at 26—28, 80 S.Ct. at 977—978.
6
1 Laws, Republic of Texas 133 (1836).
7
363 U.S., at 36—65, 80 S.Ct. at 982—997.
8
363 U.S., at 16—18, 80 S.Ct. at 971—972.
9
See 363 U.S., at 16, 80 S.Ct. at 971.
10
United States v. State of California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889; United States v. State of Louisiana, 339 U.S. 699, 70 S.Ct. 914, 94 L.Ed. 1216; United States v. State of Texas, 339 U.S. 707, 70 S.Ct. 918, 94 L.Ed. 1221.
11
The quotation is from the opinion of MR. JUSTICE DOUGLAS, for the Court, in United States v. State of Louisiana, 339 U.S. 699, at 704, 705, 70 S.Ct. at 916 (1950). The quoted statement is then explicitly relied upon in the subsequent case involving Texas, United States v. State of Texas, 339 U.S. 707, at 720, 70 S.Ct. at 724. In these cases, the two States had asserted that they had historic boundaries in the sea and were therefore not subject to the rule of the first California case that the United States had paramount rights in the marginal sea. This Court rulesd against the state claims, holding that the existence and location of state boundaries were irrelevant.
12
363 U.S., at 17—20, 24—29, 80 S.Ct. at 976—978.
13
363 U.S., at 11, 80 S.Ct. at 969.
14
363 U.S., at 24—25, 80 S.Ct. at 976.
15
The argument of the States was that the words 'as they existed' included boundaries unilaterally declared prior to admission. 363 U.S., at 13, 15, 80 S.Ct. at 970, 971. The theory appears to have been that the words had merely a 'locating' function. Finding that the purpose of these words was not clearly revealed by the Act on its face, 363 U.S., at 16, 80 S.Ct. at 971, we turned to the legislative history and concluded that the words were instead meant to require congressional approval of the State's boundary claim at the time of admission or later. 363 U.S., at 16—30, 80 S.Ct. at 971—979. Our view was that the Act granted land out to whatever present boundaries should prove to be valid, subject to the three-league limitation in the Gulf, but that only those that had been approved by Congress at or after admission could be considered valid for purposes of this grant.
16
363 U.S., at 26—28, 80 S.Ct. at 977—978.
17
My Brother BLACK partially dissented from that opinion; it was his view that the words 'as they existed' could not be read, as the Court read them, to refer simply to a 'legally accepted' boundary. 363 U.S., at 85, 89, 80 S.Ct., at 1009.
18
9 Stat. 108.
19
363 U.S., at 46—65, 80 S.Ct. at 487—1003.
20
The passage is quoted at 363 U.S., at 36, 80 S.Ct., at 982.
21
Brief for the United States in Support of Motion for Injunctive Relief and Supplemental Decree as to the State of Texas 17, 16 (filed July 13, 1967).
22
We reached this result despite the fact that the Act preceded by five years the adoption of the international Convention, which consequently was not in any literal sense incorporated by the Act. We found, rather, that the Convention afforded the 'best and most workable definition' of the statutory term 'inland waters' and, derivatively, the statutory term 'coast line.' 381 U.S., at 161—165, 85 S.Ct. at 1414—1415.
23
381 U.S., at 177, 85 S.Ct., at 1422.
24
Gray, The Nature and Sources of the Law 173 (1963 ed.).
25
League of Nations Doc. No. C.74,M.-39,1929.V, League of Nations Conference for the Codification of International Law: Bases of Discussion: Vol. II—Territorial Waters, p. 45 (hereinafter cited as 'Bases of Discussion').
26
Id., at 46.
27
See League of Nations Doc. No. C.351(b).M.145(b).1930.V, Acts of the Conference for the Codification of International Law: Meetings of the Committees; Vol. III—Minutes of the Second Committee: Territorial Waters, p. 200 (hereinafter cited as 'Acts of Conference').
28
Bases of Discussion 46.
29
Id., at 45—47.
30
Id., at 47.
31
See Acts of Conference 211.
32
1954 I.L.C. Yearbook 155.
33
U.N.Doc.No. A/Conf. 13/39, United Nations Conference on the Law of the Sea, Official Records, Volume III: First Committee (Territorial Sea and Contiguous Zone) 142.
34
No geodetic survey indicating the 1845 location of Texas' shoreline exists. At oral argument, both sides were at a loss to suggest any means by which the 1845 location of the boundary could be ascertained, except by agreement between the United States and Texas. This problem is, of course, typical of the difficulties that dictate the principle that maritime boundaries are inherently mobile.
| 910
|
389 U.S. 191
88 S.Ct. 379
19 L.Ed.2d 407
WYANDOTTE TRANSPORTATION COMPANY et al., Petitioners,v.UNITED STATES.
No. 31.
Argued Oct. 16 and 17, 1967.
Decided Dec. 4, 1967.
[Syllabus from pages 191-192 intentionally omitted]
Lucian Y. Ray, Cleveland, Ohio, for petitioners.
Alan S. Rosenthal, Dept. of Justice, Washington, D.C., for respondent.
Mr. Justice FORTAS delivered the opinion of the Court.
1
Two cases, consolidated by the trial court and raising related issues, are here involved. In United States v. Cargill, Inc., the Government asked that parties responsible for the allegedly negligent sinking of a vessel in an inland waterway be declared responsible for removing the impediment to navigation thus created. In United States v. Wyandotte Transportation Co. the United States had itself removed a sunken vessel; claiming that the vessel had been negligently sunk, it sought reimbursement for the costs of removal. The question now before us for decision is whether the relief requested in these cases is available to the United States.
2
The United States District Court for the Eastern District of Louisiana concluded that such relief is not available. After the cases were consolidated, that court granted summary judgment against the United States in each instance. The court decided that the Government has no in personam rights against those responsible for having negligently sunk a vessel. In its view, the United States is limited to an in rem right against the cargo of the negligently sunk vessel and against the vessel itself. United States v. Cargill, Inc., 1964 A.M.C. 1742.
3
The Court of Appeals for the Fifth Circuit reversed. It held that under the Rivers and Harbors Act of 1899, 30 Stat. 1151 et seq., as amended, 33 U.S.C. § 401 et seq., the United States may assert in personam rights—to injunctive or declaratory relief or damages—against those responsible for the negligent sinking of a vessel. United States v. Cargill, Inc., 367 F.2d 971 (1966). Because of a conflict among the circuits and because of the important question regarding interpretation of a statute of the United States, we granted certiorari. 386 U.S. 906, 87 S.Ct. 854, 17 L.Ed.2d 781 (1967). We affirm the judgment below.
4
The crucial facts of both cases occurred in March 1961. The Cargill libel alleges that, at that time, a supertanker bound up the Mississippi for Baton Rouge, Louisiana, collided with two barges moored by a tug. The barges were owned by petitioner Cargo Carriers, Inc., and petitioner Jeffersonville Boat and Machine Co., respectively. The Government was notified immediately after the accident that the two barges had sunk. A few days later, it was served with notice that the barges were being abandoned. The United States refused, however, to accept abandonment or to assume responsibility for removing the wrecks. In Docember 1962, it brought suit against the owners, managers, charterers, and insurers of the two barges, seeking a decree that the respondents were responsible for removing the sunken vessels. The Government charged that negligence in the equipping, manning, and mooring of the barges had caused the sinking. To this date, the barges involved in this case remain in the Mississippi.
5
The Wyandotte libel is founded on facts more dramatic. A barge loaded with 2,200,000 pounds of liquid chlorine sank while being pushed in the Mississippi near Vidalia, Louisiana. Wyandotte, the owner of the barge, at first made some attempts to locate and raise the wreck. But then, in November 1961, Wyandotte informed the Army Corps of Engineers that it believed further efforts to raise the barge would be unsuccessful. Wyandotte stated that it was abandoning the vessel. The Government began a study of the danger posed by such a substantial load of chlorine at the bottom of the Mississippi. It was feared that if any chlorine escaped, it would be in the form of lethal chlorine gas, which might cause a large number of casualties. The Government demanded that Wyandotte remove the barge. Wyandotte refused to do this.'1
6
The United States then moved to avert a catastrophe by locating and raising the barge and its deadly cargo. In October 1962, the President proclaimed the presence of the barge to be a major disaster under the Disaster Relief Act, 64 Stat. 1109, 42 U.S.C. §§ 1855—1855g. Safety precautions on a grand scale were taken, and a team of experienced divers sought gingerly to raise Wyandotte's barge. These operations, coating the United States some $3,081,000, proved successful.
7
The United States demanded that the owners and operators of the barge reimburse the Government for its expenses. This demand was rejected. In January 1963, the Government brought suit, in rem against the barge and her cargo,2 and in personam against the owner of the barge, the owner of the boat that had been pushing the barge when it sank, and the owner of the chlorine cargo.3 The libel charged these parties with negligence and fault in the design, towing, manning, mooring, and equipping of the barge. The Government sought a decree for the costs it incurred in removing the wreck.4
I.
8
Although the Government has advanced several discrete grounds for affirmance, we do not pause to examine each of them.5 We agree that § 15 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 409, read in light of our decision in United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960), controls the issues here presented. Section 15 reads in relevant part as follows:
9
'It shall not be lawful * * * to voluntarily or carelessly sink, or permit or cause to be sunk, vessels or other craft in navigable channels * * *. And whenever a vessel, raft or other craft is wrecked and sunk in a navigable channel, accidentally or otherwise, it shall be the duty of the owner of such sunken craft to immediately mark it with a buoy or beacon during the day and a lighted lantern at night, and to maintain such marks until the sunken craft is removed or abandoned, and the neglect or failure of the said owner so to do shall be unlawful; and it shall be the duty of the owner of such sunken craft to commence the immediate removal of the same, and prosecute such removal diligently, and failure to do so shall be considered as an abandonment of such craft, and subject the same to removal by the United States as provided for in sections 411—416, 418, and 502 of this title.' 33 U.S.C. § 409.
10
Petitioners do not dispute, as indeed they could not, that the negligent sinking of a vessel falls within the prohibition of the first above-quoted clause of § 15.6 They contend, however, that the Act contains specific remedies for such a violation of § 15, and that those remedies were meant by Congress to be exclusive of all others. Petitioners point to the § 15 duty of the owner to mark and remove a sunken craft. They note that failure to remove 'shall be considered as an abandonment of such craft, and subject the same to removal by the United States.' And petitioners call our attention to §§ 19 and 20 of the Act, 33 U.S.C. §§ 414, 415, which set forth the procedure whereby the United States may remove a sunken craft that 'shall be considered as' abandoned under § 15. Section 19 provides that whenever a sunken vessel exists as an obstruction to any navigable waters of the United States for a period longer than 30 days, or whenever the abandonment of such obstruction can be legally established in a shorter time, the sunken vessel 'shall be subject to be broken up, removed, sold, or otherwise disposed of by the Secretary of the Army at his discretion, without liability for any damage to the owners of the same.' That section further contemplates '(t)hat any money received from the sale of any such wreck * * * shall be covered into the Treasury of the United States.' 33 U.S.C. § 414. Section 20, an emergency provision applicable only when a sunken vessel obstructs a waterway 'in such manner as to stop, seriously interfere with, or specially endanger navigation,' 33 U.S.C. § 415, is similar in structure to § 19.7
11
Finally, petitioners emphasize that § 16 of the Act provides criminal penalties for '(e)very person and every corporation that shall violate, or that shall knowingly aid, abet, authorize, or instigate a violation of the provisions (of § 15).' 33 U.S.C. § 411.8 They point out that § 12 of the Act, 33 U.S.C. § 406, which provides penalties for violations of § 10, 33 U.S.C. § 403,9 expressly authorizes the injunctive remedy. They argue that the lack of such an authorization in § 16 should be taken to mean that Congress did not intend the United States to be able to obtain what is, in effect, injunctive relief as a remedy for a violation of § 15.10
12
The position of petitioners is, therefore, that in the case of a negligently sunk vessel, the Government may require the owner to mark it; it may expect him to remove it or forfeit his interest in the vessel; and if the Government proceeds to remove the vessel, it possesses the right to sell vessel and cargo and retain the proceeds of these sales.11 Moreover, the Government may proceed criminally, under § 16, against those responsible for the negligent sinking. But, petitioners argue, the Government may do no more. Under their view, the very detail of the Rivers and Harbors Act negates the possibility that Congress intended the Government to be able to recover removal expenses exceeding the value of the vessel and its cargo. Petitioners would apply the same analysis to a government action for declaratory or injunctive relief. Indeed, petitioners believe that authorization of the injunction remedy in another, analogous, section of the Act indicates congressional intent to withhold declaratory or injunctive relief as a means of enforcing § 15.12
13
We do not agree. Petitioners' interpretation of the Rivers and Harbors Act of 1899 would ascribe to Congress an intent at variance with the purpose of that statute. Petitioners' proposal is, moreover, in disharmony with our own prior construction of the Act, with our decisions on analogous issues of statutory construction, and with a major maritime statute of the United States. If there were no other reasonable interpretation of the statute, or if petitioners could adduce some persuasive indication that their interpretation accords with the congressional intent, we might be more disposed to accept that interpretation. But our reading of the Act does not lead us to the conclusion that Congress must have intended the statutory remedies and procedures to be exclusive of all others. There is no indication anywhere else—in the legislative history of the Act, in the predecessor statutes, or in nonstatutory law—that Congress might have intended that a party who negligently sinks a vessel should be shielded from personal responsibility. We therefore hold that the remedies and procedures specified by the Act for the enforcement of § 15 were not intended to be exclusive. Applying the principles of our decision in Republic Steel, we conclude that other remedies, including those here sought, are available to the Government.
II.
14
Article I, § 8, of the Constitution grants to Congress the power to regulate commerce. For the exercise of this power, the navigable waters of the United States are to be deemed the 'public property of the nation, and subject to all the requisite legislation by Congress.' Gilman v. City of Philadelphia, 3 Wall. 713, 725, 18 L.Ed. 96 (1966). The Federal Government is charged with ensuring that navigable waterways, like any other routes of commerce over which it has assumed control, remain free of obstruction. Cf. In re Debs, 158 U.S. 564, 586, 15 S.Ct. 900, 907, 39 L.Ed. 1092 (1895). The Rivers and Harbors Act of 1899, an assertion of the sovereign power of the United States, Sanitary District of Chicago v. United States, 266 U.S. 405, 45 S.Ct. 176, 69 L.Ed. 352 (1925), was obviously intended to prevent obstructions in the Nation's waterways. Despite some difficulties with the wording of the Act, we have consistently found its coverage to be broad. See, e.g., Sanitary District of Chicago v. United States, supra; United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960).13 And we have found that a principal beneficiary of the Act, if not the principal beneficiary, is the Government itself. United States v. Republic Steel Corp., supra, at 492, 80 S.Ct. at 890.
15
Our decisions have established, too, the general rule that the United States may sue to protect its interests. Cotton v. United States, 11 How. 229, 13 L.Ed. 675 (1851); United States v. San Jacinto Tin Co., 125 U.S. 273, 8 S.Ct. 850, 31 L.Ed. 747 (1888); Sanitary District of Chicago v. United States, supra. This rule is not necessarily inapplicable when the particular governmental interest sought to be protected is expressed in a statute carrying criminal penalties for its violation. United States v. Republic Steel Corp., supra. Our decisions in cases involving civil actions of private parties based on the violation of a penal statute so indicate. Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 36 S.Ct. 482, 60 L.Ed. 874 (1916); J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964).14 In those cases we concluded that criminal liability was inadequate to ensure the full effectiveness of the statute which Congress had intended. Because the interest of the plaintiffs in those cases fell within the class that the statute was intended to protect, and because the harm that had occurred was of the type that the statute was intended to forestall, we held that civil actions were proper. That conclusion was in accordance with a general rule of the law of torts. See Restatement (Second) of Torts § 286. We see no reason to distinguish the Government, and to deprive the United States of the benefit of that rule.
16
The inadequacy of the criminal penalties explicitly provided by § 16 of the Rivers and Harbors Act is beyond dispute. That section contains only meager monetary penalties. In many cases, as here, the combination of these fines and the Government's in rem rights would not serve to reimburse the United States for removal expenses. It is true that § 16 also provides for prison terms, but this punishment is hardly a satisfactory remedy for the pecuniary injury which the negligent shipowner may inflict upon the sovereign. Cf. United States v. Acme Process Equipment Co., 385 U.S. 138, 87 S.Ct. 350, 17 L.Ed.2d 249 (1966).
17
It was a similar process of reasoning that underlay our decision in United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960). That case concerned the deposit of industrial solids which, we believed, created an 'obstruction * * * to the navigable capacity' of a waterway of the United States, within the meaning of § 10 of the Act. We decided that the Government might seek injunctive relief to compel removal of such an obstruction, even though such relief was nowhere specifically authorized in the Act. We concluded that the authorization of injunctive relief in § 12, which is applicable only to a limited category of § 10 obstructions (structures), should not be read to exclude injunctions to compel removal of other types of § 10 obstructions. In referring to the Act, we noted that 'Congress has legislated and made its purpose clear; it has provided enough federal law in § 10 from which appropriate remedies may be fashioned even though they rest on inferences. Otherwise we impute to Congress a futility inconsistent with the great design of this legislation.' 362 U.S., at 492, 80 S.Ct., at 890.
18
Although we do not approach the instant cases in the context of § 10, we believe the principles of Republic Steel apply, by analogy, to the issues now before us.15 The Government may, in our view, seek an order that a negligent party is responsible for rectifying the wrong done to maritime commerce by a § 15 violation. Denial of such a remedy to the United States would permit the result, extraordinary in our jurisprudence, of a wrongdoer shifting responsibility for the consequences of his negligence onto his victim. It might in some cases permit the negligent party to benefit from commission of a criminal act. We do not believe that Congress intended to withhold from the Government a remedy that ensures the full effectiveness of the Act. We think we correctly divine the congressional intent in inferring the availability of that remedy from the prohibition of § 15.
19
It is but a small step from declaratory relief to a civil action for the Government's expenses incurred in removing a negligently sunk vessel. See United States v. Perma Paving Co., 332 F.2d 754 (C.A.2d Cir. 1964). Having properly chosen to remove such a vessel, the United States should not lose the right to place responsibility for removal upon those who negligently sank the vessel. See Restatement of Restitution § 115; United States v. Moran Towing & Transportation Co., 374 F.2d 656, 667 (C.A.4th Cir. 1967). No issue regarding the propriety of the Government's removal of Wyandotte's barge is now raised. Indeed, the facts surrounding that sinking constitute a classic case in which rapid removal by someone was essential. Wyandotte was unwilling to effectuate removal itself. It would be surprising if Congress intended that, in such a situation, the Government's commendable performance of Wyandotte's duty must be at Government expense. Indeed, in any case in which the Act provides a right of removal in the United States, the exercise of that right should not relieve negligent parties of the responsibility for removal. Otherwise, the Government would be subject to a financial penalty for the correct performance of its duty to prevent impediments in inland waterways.16 See United States v. Perma Paving Co., supra, 332 F.2d at 758.
20
We note, moreover, that under the Limitation of Shipowners' Liability Act of 1851, 9 Stat. 635, as amended, 46 U.S.C. § 181 et seq., the liability of a shipowner 'for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture' may be limited to 'the interest of such owner in such vessel, and her freight then pending'; but this limitation is available only if the act or damage occurred 'without the privity or knowledge of such owner.' 46 U.S.C. § 183. 'For his own fault, neglect and contracts the owner remains liable.' American Car & Foundry Co. v. Brassert, 289 U.S. 261, 264, 53 S.Ct. 618, 619, 77 L.Ed. 1162 (1933). The reading that petitioners would place on the Rivers and Harbors Act of 1899 would create an additional right of limitation, applicable in the special case of a sinking even though the owner is himself negligent. Yet Congress gave no indication, in passing the Rivers and Harbors Act, that it intended to alter or qualify the 1851 Act.17 In the congressional failure to connect these two statutes, we find at least some evidence that petitioners' discovery of a limitation of liability in the Rivers and Harbors Act is unwarranted.18
III.
21
Petitioners contend that, despite our prior decisions and the silence of the Rivers and Harbors Act on this point, that statute authorizes them simply to abandon their negligently sunk vessels, without further responsibility for those vessels. We find in the Act no support for such an absolute right of abandonment. The provision upon which petitioners place most reliance, the final clause of § 15, creates a 'duty of the owner of (a) sunken craft to commence the immediate removal of the same, and prosecute such removal diligently.' Because 'failure to do so shall be considered as an abandonment of such craft, and subject the same to removal by the United States as provided for in sections (19 and 20),' petitioners contend that such failure in no case has other consequences. But the duty imposed by and the remedy provided in the final clause of § 15 and §§ 19 and 20 are not prescribed only for owners of negligently sunk vessels. Those provisions apply 'whenever a vessel * * * is wrecked and sunk in a navigable channel, accidentally or otherwise * * *.' Unlike a negligent sinking, a non-negligent sinking is not declared by the Act to be unlawful. It seems highly unlikely that Congress, having specified that only a negligent or intentional sinking is a crime, would then employ such indirect language to grant the culpable owner a personal civil immunity from the consequences of that crime.
22
We believe the sections noted by petitioners are intended to protect the United States against liability for removing a sunken vessel if it chooses to do so. See Zubik v. United States, 190 F.2d 278 (C.A.3d Cir. 1951); Gulf Coast Transp. Co. v. Ruddock-Orleans Cypress Co., 17 F.2d 858 (D.C.E.D.La.1927). Section 19 speaks explicitly of the discretion of the Secretary of the Army to break up, remove, sell, or otherwise dispose of a sunken vessel that has obstructed a waterway 'without liability for any damage to the owners of the same.' These sections do not negate the rights of the United States to obtain declaratory relief or to recover removal expenses. It is true that a proviso to § 19 states '(t)hat any money received from the sale of any such wreck * * * shall be covered into the Treasury of the United States.' But that proviso does not indicate that the United States, having chosen to remove a sunken vessel, shall receive no other monies. At most, the proviso establishes the proposition that, if the United States chooses to sell a wreck, the owner of the vessel has no right to any monies received.19 Section 20, the emergency section, closely parallels § 19. It adds nothing to petitioners' argument.20
23
Petitioners also claim that a substantial body of nonstatutory law establishes the rule that a shipowner who has negligently sunk a vessel may abandon it and be insulated from all but in rem liability.21 They argue that Congress must have intended to codify this rule in the Rivers and Harbors Act. We do not accept petitioners' claim. Although several modern courts have assumed the existence of such a common-law rule, see, e.g., United States v. Moran Towing & Transportation Co., 374 F.2d 656, 667 (C.A.4th Cir. 1967); United States v. Bethlehem Steel Corp., 319 F.2d 512, 518—519 (C.A.9th Cir. 1963), the rule evaporates upon close analysis.22 We do not believe Congress intended the Rivers and Harbors Act to embody this illusory nonstatutory law.
IV.
24
These cases were decided in the District Court on petitioners' motions for summary judgment. The Court of Appeals reversed and remanded for further proceedings. As we have noted, the Government's libels were based on a theory of negligence, and the award of the Court of Appeals called for a determination whether the acts of the various petitioners constituted negligence. We agree with that disposition.
25
Affirmed.
26
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
27
Mr. Justice HARLAN, concurring.
28
I concur in the Court's holding that under § 15 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 409, the United States may recover the costs of removing a vessel negligently sunk in navigable waters from those responsible for the sinking. I further agree with the holding that the United States is entitled to the declaratory relief sought in the Cargill action. In affording this latter relief it is my understanding that the Court does not purport to decide whether the United States may also obtain an injunction compelling removal, but has left that question to be answered in light of a full development of the facts, and in accordance with normal standards of equity.
29
In reaching these conclusions, I have not been unmindful of the view stated by me in dictum in my dissenting opinion in United States v. Republic Steel Corp., 362 U.S. 482, 493, 80 S.Ct. 884, 891, 4 L.Ed.2d 903, to the effect that the courts are precluded from supplying relief not expressly found in the Rivers and Harbors Act. Insofar as that dictum might be taken to encompass the present case, where, contrary to my view in Republic Steel, I do believe that the relief afforded by this Court is fairly to be implied from the statute, candor would compel me to say that the dictum was ill-founded.
30
On these premises I join the opinion of the Court.
1
There is some dispute as to whether the United States ever agreed to remove the owner's barge. The Court of Appeals was cognizant of this issue but concluded that its resolution of the cases made a decision on this point unnecessary. We agree. We therefore do not pass on the question whether the United States asserted the right to remove Wyandotte's barge or whether the Government, once it has asserted such a right, is precluded from seeking declaratory relief.
2
Upon motion of the United States, the District Court ordered that the chlorine and its containers be sold and that the proceeds be paid into court pending final disposition of the litigation. The proceeds of this sale were $85,000. Petitioners do not dispute the right of the United States to this sum. See n. 12, infra.
3
On petition for rehearing, the Court of Appeals affirmed the summary judgment entered in favor of Union Carbide Co., the owner of the chlorine, on the ground that there was no allegation or proof of negligence on its part. That decision is not now before us.
4
Of the expenses incurred by the United States, approximately $1,565,000 was for engineering costs; the remainder, some $1,516,000, was for public health and safety measures, including allegedly necessary precautions against a possible rupture of the chlorine containers during salvage operations. We do not, of course, pass on the questions whether all of these expenses were necessary to remove the barge or whether the Government may recover all of them.
5
Thus, we intimate no view as to whether a negligently sunk vessel may be an 'obstruction * * * to the navigable capacity of any of the waters of the United States,' prohibited by § 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403. This was the ground upon which the Court of Appeals rested its decision. We do not assess any of the Court of Appeals' conclusions, nor do we decide whether petitioners may be subject to the criminal and other remedies of § 12 of the Act, 33 U.S.C. § 406, which applies to violations of § 10.
Nor, finally, do we decide whether nonstatutory public nuisance law may form a basis for the relief here sought by the Government. See, e.g., Mayor, etc. of Georgetown v. Alexandria Canal Co., 12 Pet. 91, 97, 9 L.Ed. 1012 (1838); United States v. Hall, 63 F. 472, 474 (C.A.1st Cir. 1894); The Ella, (1915) P. 111 (1914); Comment, Substantive and Remedial Problems in Preventing Interferences with Navigation: The Republic Steel Case, 59 Col.L.Rev. 1065, 1067 (1959); Wisdom, Obstructions in Rivers, 119 Just. P. 846 (1955). We therefore do not pass either on the question whether such a nonstatutory right of the sovereign has ever existed in the United States, cf. Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 8, 8 S.Ct. 811, 814, 31 L.Ed. 629 (1888); United States v. Republic Steel Corp., 362 U.S. 482, 486, 80 S.Ct. 884, 887, 4 L.Ed.2d 903 (1960); or on whether such a right, if it ever did exist, survived the series of enactments beginning with the Rivers and Harbors Act of 1890, 26 Stat. 426, 454, in which Congress asserted the general interest of the United States in the removal of sunken vessels obstructing navigable waters. Cf. In re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092 (1895).
6
It bears emphasis that we are here concerned with the careless or negligent sinking of a vessel, which is specifically declared not to be lawful by the first above-quoted clause of § 15. Negligence is the sole theory of recovery in the Government's libels. Questions involving a non-negligent sinking, which is not forbidden by § 15, are not before us and we do not mean to indicate what relief, if any, may be available to the Government in that situation.
7
The determination of the applicability of § 20 is left by that section to 'the opinion of the Secretary of the Army, or any agent of the United States to whom the Secretary may delegate proper authority.' Once the determination is made, the Secretary or his agent may 'take immediate possession' of a sunken vessel 'so far as to remove or to destroy it and to clear immediately' the obstructed waterway. See n. 20, infra.
8
Violation is a misdemeanor, punishable by 'a fine not exceeding $2,500 nor less than $500, or by imprisonment (in the case of a natural person) for not less than thirty days nor more than one year, or by both such fine and imprisonment, in the discretion of the court * * *.'
9
See n. 5, supra.
10
As noted, the United States sought declaratory relief in the Cargill action.
11
The Government notes, in regard to petitioners' contention that these remedies are exclusive, that they apply only to the owner of a vessel. The Government argues that the position of those allegedly negligent petitioners who are not owners is substantially weaker. But see United States v. Bethlehem Steel Corp., 319 F.2d 512, 521 (C.A.9th Cir. 1963). We note that the prohibition of § 15 against the negligent sinking of a vessel and the criminal penalties of § 16 are not limited to owners. Our disposition of these cases makes it unnecessary for us to pass on the Government's contention.
12
Petitioners concede the in rem right of the United States against a negligently sunk vessel and its cargo, see Brief for Petitioners, p. 12, despite the fact that the right of the Government to proceed against cargo is by no means clearly granted by the statute. See § 19, 33 U.S.C. § 414; United States v. Cargo Salvage Corp., 228 F.Supp. 145 (D.C.S.D.N.Y.1964). See also § 16, 33 U.S.C. § 412.
13
In this conclusion we have been supported by similarly broad readings of similar statutes predating this one. See, e.g., United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 19 S.Ct. 770, 43 L.Ed. 1136 (1899).
14
See North Bloomfield Gravel Min. Co. v. United States, 88 F. 664, 678—679 (C.A.9th Cir. 1898). See also Dann v. Studebaker-Packard Corp., 288 F.2d 201, 208—209 (C.A.6th Cir. 1961); Reitmeister v. Reitmeister, 162 F.2d 691, 694 (C.A.2d Cir. 1947).
15
Petitioners would distinguish Republic Steel on the ground that, in that case, 'if * * * injunctive relief * * * was not available, the free navigability of the channel would be seriously impaired and Republic Steel Corp., by repeatedly paying the fine imposed (by § 12), would, in effect, be operating under a license.' See Brief for Petitioners, p. 29; United States v. Bethlehem Steel Corp., 319 F.2d 512, 518 (C.A.9th Cir. 1963). This ground of distinction will not do, for at least three reasons. First, the criminal provisions of § 12 include not only a fine but a prison term. See United States v. Bethlehem Steel Corp., 319 F.2d 512, 523 (C.A.9th Cir. 1963) (dissenting opinion). Second, if fines were in practice the only deterrent in § 12 and § 16, it might well be worthwhile to risk fines rather than take necessary safety measure for tows. Third, the proposed ground of distinction concentrates upon the injunction in Republic Steel against future violations of the Act; it does not explain the mandatory injunction in that case to compel removal of the obstruction that had already been created at the time of the Government's suit.
Indeed, the argument for exclusivity was stronger in Republic Steel than it is here. In that case, we decided that injunctive relief was a proper enforcement measure against a violation of the very section to which § 12 (but not the statutory provision of injunctive process) applies.
16
Wyandotte, noting that Government funds spent in removal operations were provided under the Disaster Relief Act, 42 U.S.C. §§ 1855—1855g, argues that nothing in that Act authorizes the United States to recover disaster relief expenditures from private parties. We agree, but the argument misses the point. We believe the United States may recover its expenses under the Rivers and Harbors Act of 1899. We see nothing in the Disaster Relief Act to the contrary.
17
We do not, of course, pass on the applicability of the Limitation Act, before or after passage of the Rivers and Harbors Act, to the facts of the case now before us. We only note that the principle for which petitioners are contending is very much like the principle of limitation of liability, known to the statutory maritime law of the United States almost 50 years prior to passage of the Rivers and Harbors Act.
18
Petitioners' theory is, moreover, in conflict with the administrative interpretation of the statute. A regulation promulgated by the Department of the Army provides that 'a person who * * * negligently permits a vessel to sink in navigable waters of the United States * * * may * * * be compelled to remove the wreck as a public nuisance or to pay for its removal.' 33 CFR § 209.410. The origins of this regulation go back to 1901. Letter from William Cary Sanger, Acting Secretary of War, to William L. Hughes, July 31, 1901. See United States v. Republic Steel Corp., 362 U.S. 482, 490, n. 5, 80 S.Ct. 884, 889, 4 L.Ed.2d 903 (1960).
19
This rule is not unfair. See 41 Tulane L.Rev. 459, 464, n. 29 (1967). The shipowner should know the value of his vessel and cargo. If he believes that value is greater than the cost of removal, he may, within 30 days after the obstruction is created, raise the vessel himself. See § 19, 33 U.S.C. § 414.
20
Thus, § 20 concludes with the proviso '(t)hat the expense of removing any such obstruction as aforesaid shall be a charge against such craft and cargo; and if the owners thereof fail or refuse to reimburse the United States for such expense within thirty days after notification, then the officer or agent aforesaid may sell the craft or cargo, or any part thereof that may not have been destroyed in removal, and the proceeds of such sale shall be covered into the Treasury of the United States.' Petitioners rely heavily on the phrase 'shall be a charge against such craft and cargo.' But that phrase does not lead to the conclusion that the Government possesses no other right to recover. The phrase merely describes the lien interest of the United States. See United States v. Moran Towing & Transportation Co., 374 F.2d 656, 671 (C.A.4th Cir. 1967) (dissenting opinion). Such a provision is necessary in a § 20 case because, under the terms of that section, the owner is not given a statutory period in which to decide whether the value of his vessel and cargo exceeds the cost of removal and to effectuate removal himself.
21
Petitioners do not appear to claim that the legislative history of the Rivers and Harbors Act of 1899 clearly indicates the intent of Congress to create or codify this rule. To the extent that any intent appears in the legislative history of the 1899 Act, it is the intent not to alter pre-existing statutory law. Thus, the House conferees said of the statute that it was a 'codification of existing laws pertaining to rivers and harbors, though containing no essential changes in the existing law.' 32 Cong.Rec. 2923 (1899); see United States v. Republic Steel Corp., 362 U.S., at 486, 80 S.Ct., at 887. The legislative history of prior statutes in scant. And the prior Acts themselves lend no support to petitioners. See Rivers and Harbors Act of 1880, 21 Stat. 180; Rivers and Harbors Act of 1882, 22 Stat. 191; Rivers and Harbors Act of 1890, 26 Stat. 426.
22
The American decisions speaking of a nonstatutory right of abandonment all trace back to a dictum in Winpenny & Chedester v. City of Philadelphia, 65 Pa. 135 (1870). See, e.g., The Manhattan, 10 F.Supp. 45 (D.C.E.D.Pa.1935); Gulf Coast Transp. Co. v. Ruddock-Orleans Cypress Co., 17 F.2d 858 (D.C.E.D.La.1927). In Winpenny the Pennsylvania Supreme Court stated in dictum that the 'owner (of a sunken vessel) is absolutely not liable to raise or remove the hulk.' 65 Pa., at 138. For this proposition, the Pennsylvania court cited three treatises and five English cases. The cases are not good authority. The only one close to the point, King v. Watts, 2 Esp. 675, 170 Eng.Rep. 493 (1798), held that an indictment for having sunk a vessel in the Thames could not be maintained because the owner had not been negligent and 'it would be adding to the calamity to subject the party to an indictment * * * against which he could not guard, or which he could not prevent.' Of the two treatises cited, one, Shearman & Redfield on Negligence 3d ed. 1869), states at § 583 that '(i)t is well settled that the owner of a vessel which has been sunk in navigable waters, and abandoned by him, is under no obligation to remove the vessel * * *.' But the only case cited for this 'well-settled' rule is King v. Watts.
Moreover, it seems clear that the Winpenny court was not speaking of the 'rule' that petitioners propose. That court, after the above quoted passage, went on as follows:
'There seem to be good reasons for this rule. When a vessel is lost by the act of God, or by accident, the owner suffers oftentimes great damage, and when she becomes a total loss, it seems to be a great hardship to add to his misfortune the duty of removing the wreck. It would discourage commerce to hold him to so severe a duty; for who would engage in trade, if, when he has lost his vessel, he might be forced to incur an expense of more than her original cost in removing the wreck from some difficult position? If compelled by the accident to abandon his property, the duty of removal should rather fall on the public, who are interested in the navigation, than on him.'
Cases cited for petitioners that do not rely on Winpenny either do not support petitioners' claim of a nonstatutory rule, see, e.g., In re Highland Nav. Corp., 24 F.2d 582 (D.C.S.D.N.Y.1957), affirmed, 29 F.2d 37 (C.A.2d Cir. 1928); Zubik v. United States, 190 F.2d 278 (C.A.3d Cir. 1951); United States v. Bridgeport Towing Line, Inc., 15 F.2d 240 D.C.D.Conn.1926), or support it only with unsupported dicta of their own, see, e.g., Barraclough v. Brown, (1897) A.C. 615 (construing the Aire and Calder Navigation Act, 1889 (52 & 53 Vict., c. 32).
| 78
|
389 U.S. 212
88 S.Ct. 416
19 L.Ed.2d 423
Charles P. LUCAS et al.v.James A. RHODES et al.
No. 568.
Supreme Court of the United States
October Term, 1967.
December 4, 1967
Jack G. Day, Russell T. Adrine, Richard Gunn and Kenneth G. Weinberg, for appellants.
William B. Saxbe, Atty. Gen. of Ohio, and J. Philip Redick, Asst. Atty. Gen., for appellees.
PER CURIAM.
1
The judgment is reversed and the cause is remanded to the United States District Court for the Northern District of Ohio. Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964).
2
Mr. Justice HARLAN, with whom Mr. Justice STEWART joins, dissenting.
3
Because of the uninformative nature of the Court's reversal, some exposition of the issue in this case is necessary as a predicate for my view that the judgment of the District Court should be affirmed. My point of departure is, of course, Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481, a decision with which I am in continuing disagreement, see 376 U.S., at 20 et seq., 50-51, 84 S.Ct., at 536 et seq., 552-553, but by which I consider myself bound.
4
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
5
The appellants, Ohio voters, challenge the constitutionality of Ohio's 1964 congressional redistricting statute. They assert that the redistricting plan does not satisfy the standard of population equality laid down in Wesberry v. Sanders, supra, because some of the resulting districts vary as much as 13% above and 18% below the population average, according to the 1960 census. In the District Court, the appellees, state officials, defended on the ground that the Ohio Legislature had properly taken into account unofficial, post-1960 population figures which were available for some counties, and which seemed to bring the 1964 redistricting into line with Wesberry.
6
The majority below apparently held that these unofficial population statistics were insufficient to justify the disparity among districts because they were too unreliable and not available for all areas. However, the majority went on to uphold the districting plan because
7
'although the varied sources of population information used by the Ohio legislature may lack uniformity of the federal census and the percentage deviation between seleted Ohio districts may exceed that generally found acceptable in other states, we are unable to find that resort to the 1960 federal census in 1967 will achieve a population disparity of any lesser degree.'
8
Given these circumstances, I believe that the Ohio plan has not been shown to be unconstitutional, even prima facie. This Court held in Wesberry, supra, at 7-8, 84 S.Ct. at 530, that 'as nearly as is practicable one man's vote in a congressional election [must] be worth as much as another's.' However, mathematical exactness was not required of a redistricting plan, 376 U.S., at 18, 84 S.Ct., at 535, and what is marginally allowable in one State may be unacceptable in another, cf. Reynolds v. Sims, 377 U.S. 533, 578, 84 S.Ct. 1362, 12 L.Ed.2d 506. It seems to me that by failing to heed the District Court's evident recognition that substantial shifts in population among Ohio's congressional districts had taken place since the federal census of 1960, this Court has now given to Wesberry a Procrustean tenor which the opinion in that case does not evince.
9
I would affirm the judgment of the District Court.
| 12
|
389 U.S. 179
88 S.Ct. 401
19 L.Ed.2d 398
FEDERAL TRADE COMMISSION, Petitioner,v.FLOTILL PRODUCTS, INC., eta l.
No. 20.
Argued Oct. 16, 1967.
Decided Dec. 4, 1967.
Howard E. Shapiro, Washington, D.C., for petitioner.
William Simon, Washington, D.C., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The question in this case is whether an enforceable cease-and-desist order of the Federal Trade Commission requires the concurrence of a majority of the full Commission, or only of a majority of the quorum that participated in the decision to issue the order.
2
The Commission has five Commissioners, 15 U.S.C. § 41.1 A full Commission heard oral argument in this case involving a complaint that respondent made payments in lieu of brokerage in violation of § 2(c) of the Robinson-Patman Act and granted promotional allowances in violation of § 2(d) of that Act. 15 U.S.C. §§ 13(c) and (d). Two Commissioners retired before the Commission rendered its decision. Although one vacancy was filled in the interim, only three Commissioners participated in the decision because the new Commissioner, not having heard the oral argument, declined to participate. All three participating Commissioners concurred that respondent granted promotional allowances in violation of § 2(d). However, only two of the three concurred that respondent also made payments in lieu of brokerage in violation of § 2(c). On petition for review under 15 U.S.C. §§ 21(c) and 45(c), a three-judge panel of the Court of Appeals for the Ninth Circuit enforced the Commission's cease-and-desist order as it related to the § 2(d) violation but refused to enforce the order, one judge dissenting, as it related to the § 2(c) violation. In refusing to enforce the § 2(c) part of the order, the Court of Appeals held that 'absent statutory authority or instruction to the contrary, three members of a five member commission must concur in order to enter a binding order on behalf of the commission.' 358 F.2d 224, 228.2 On rehearing en banc the full court sustained the panel decision five to four. 358 F.2d, at 234. Because of a conflict with decisions of other courts of appeals, see Atlantic Refining Co. v. FTC, 344 F.2d 599 (C.A.6th Cir.), LaPeyre v. FTC, 366 F.2d 117 (C.A.5th Cir.), we granted certiorari, Federal Trade Commission v. Flotill Products, 386 U.S. 1003, 87 S.Ct. 1343, 18 L.Ed.2d 431. We reverse.
3
The Federal Trade Commission Act does not specify the number of Commissioners who may constitute a quorum.3 A quorum of three Commissioners is provided for by a rule of the Commission first promulgated in 1915; in its current version it is Rule 1.7.4 No challenge to the authority of FTC to promulgate Rule 1.7 is made in this case; indeed, the Court of Appeals expressly disclaimed any '* * * doubt as to the validity of the Commission's practice of conducting hearings before less than the full membership,' 358 F.2d, at 230. Before us for review, therefore, is only the holding of the Court of Appeals which follows that disclaimer: 'We say only that an order of the Commission must be supported by three members in order to constitute an enforceable order of the FTC. Two of five is too few.' Ibid.
4
The rationale of the Court of Appeals was that the FTC could act only on the concurrence of a majority of the full Commission 'absent statutory authority or instruction to the contrary.' 358 F.2d, at 228. The court cited no authority affirmatively supporting that proposition; the court simply rejected—on the ground that it is inapplicable to 'a statutorily created administrative tribunal like the Federal Trade Commission,' 358 F.2d, at 229—the rule stated by the Court of Customs and Patent Appeals in Frischer & Co. v. Bakelite Corp., 39 F.2d 247, 255, that '* * * in collective bodies other than courts, even though they may exercise judicial authority, a majority of a quorum is sufficient to perform the function of the body.'5 Further, the court rejected as 'a bare conclusion' the holding of the Court of Appeals for the Sixth Circuit in Atlantic Refining Co. v. FTC, supra, that a majority of a panel of three Commissioners could act for the Commission.
5
Insofar as the Court of Appeals' holding implies that the proposition state by it is the common-law rule, the court was manifestly in error. The almost universally accepted common-law rule is the precise converse—that is, in the absence of a contrary statutory provision, a majority of a quorum constituted of a simple majority of a collective body is empowered to act for the body.6 Where the enabling statute is silent on the question, the body is justified in adhearing to that common-law rule.
6
Respondent does not undertake to support the Court of Appeals' proposition as stated. Rather respondent concedes that the common-law rule is as we have stated it to be but argues that an exception allegedly recognized at common law in the case of courts should be applied to an agency like the FTC exercising quasijudicial functions; respondent cites the statement in Frischer, supra, at 255, that '(w)here courts are concerned, it has been uniformly held, so far as we can ascertain, that a clear majority of all the legally constituted members thereof shall concur or no valid judgment may be entered except such as may follow no decision.' But even on the doubtful premise that there is an exception in the case of courts,7 Frischer itself recognized, as we have seen, that the exception does not apply to administrative agencies with quasi-judicial functions. Ibid.8 It follows that the FTC is not inhibited from following the common-law rule unless Congress has declared otherwise. Since that declaration is not expressed in the Trade Commission Act, our task is narrowed to determining whether it may be read in by implication.
7
The Court of Appeals' opinion may be read as having found an implicit contrary declaration because Congress wrote the common-law rule into later statutes creating other agencies: '* * * when Congress wanted to authorize the exercise of the powers of an administrative body by less than the full body in other situations, it did not lack the words to do so expressly. Cf. National Labor Relations Board, 29 U.S.C. § 153(b); Interstate Commerce Commission, 49 U.S.C. § 17(1) (sic); Federal Power Commission, 16 U.S.C. § 792,' 358 F.2d, at 229.9 However, in another statute, reorganizing the Federal Maritime Commission, Congress enacted not the common-law rule but a unanimous concurrence provision, Reorganization Plan No. 7 of 1961, 75 Stat. 840; the reasoning of the Court of Appeals thus would equally justify an inference that Congress sanctioned the FTC's adherence to the common-law rule, since Congress has not lacked the words to abrogate such a practice expressly. This diversity in congressional treatment of the problem clearly forecloses reliance upon a particular choice in one statute as the basis for an inference of a contrary choice in another which says nothing on the matter.
8
The Court of Appeals seems also to have been of the view that there is a basis for inferring a contrary declaration from within the four corners of the Trade Commission Act itself. '(I)t is difficult to believe that Congress conceived of the five-member FTC with its politically balanced make-up, permitting two of its members to speak for the Commission, and failed to specifically provide enabling legislation.' 358 F.2d, at 229. This argument stresses the structural characteristics of the Commission—that it is a multi-membered body whose members serve long, staggered terms, and no more than three of whom may belong to the same political party. But the argument fails to take into account the fact that these features are common to almost all federal regulatory agencies, whose enabling acts, where they deal at all with the question of how many of a quorum may act for the agency, deal with it diversely. Nothing in the structure of the FTC, therefore, commands the inference that Congress intended to restrict the Commission to voting requirements not normally imposed on or adhered to by similarly structured agencies.
9
Respondent's final argument is that there is a basis for the inference in the action of Congress in 1961 in not disapproving the Reorganization Plan for the Commission submitted by President Kennedy.10 Under this plan the FTC was granted 'authority to delegate, by published order or rule, any of its functions to a division of the Commission, an individual Commissioner, a hearing examiner, or an employee or employee board, including functions with respect to hearing, determining, ordering, certifying, reporting or otherwise acting as to any work, business, or matter * * *.' The plan further provided that 'the Commission shall retain a discretionary right to review the action of any such division of the Commission, individual Commissioner * * *' and that 'the vote of a majority of the Commission less one member thereof shall be sufficient to bring any such action before the Commission for review.' Reorganization Plan No. 4, § 1(a), (b). The Commission did not purport to act pursuant to Plan No. 4 in this proceeding. Nevertheless, respondent argues that the provision assuring a minority of the Commission a means to compel review by the full Commission is a congressional expression that Commission action shall be valid only when concurred in by a majority of the full membership. This argument is not persuasive, however. The provisions of Plan No. 4 were common to most of the reorganization plans submitted for other agencies at or about the same time.11 As we have noted, the enabling acts creating those agencies treat differently the problem of the number of a quorum authorized to act for the agency, which makes it highly improbable that the similarly phrased review procedures set forth in the plans manifest the implicit principle for which respondent contends. Indeed, it is quite clear—both from the language of the plans and the discussions in Congress—that Plan No. 4 and those like it were concerned with establishing the authority and procedure for delegation of functions so as to enable the respective agencies to operate more efficiently.12 There can be little question of the desirability of the FTC's judicious use of this authority, but the case before us is not one in which there was a delegation. This was a proceeding originally heard by a full Commission and the problem of a quorum decision arose only when fortuitous circumstances reduced to three the number of Commissioners available to render a decision. Clearly, it is not a decision covered by the 1961 Plan.
10
The inconsistency in congressional treatment of quorum voting sometimes allowing agency action on the concurrence of a majority of the quorum, in other cases requiring unanimous concurrence, and in several statutes saying nothing at all—refutes any suggestion that Congress has regarded the problem to be such as to justify a single rule for federal regulatory agencies. Surely, if Congress at any time has regarded the case of the FTC as specially calling for unanimity in quorum voting, we might expect that Congress would have at some time addressed itself to the question during the more than half century of the Commission's existence.13 Thus, if any conclusion is to be drawn, it is that Congress has been and is content to acquiesce in the Commission's practice of following the long-established common-law rule.
11
We therefore reverse the judgment of the Court of Appeals insofar as the matter of the Commission's § 2(c) order was 'remanded to the FTC for further proceedings to determine whether a majority of the Commission join in the section 2(c) findings,' and remand to that court with direction to proceed to judgment on the merits of respondent's petition to review and set aside that order. It is so ordered.
12
Reversed in part and remanded with direction.
13
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
1
The FTC is one of the oldest federal regulatory agencies. Act of September 26, 1914, c. 311, § 1, 38 Stat. 717, as amended, 15 U.S.C. § 41. See generally Cushman, The Independent Regulatory Commissions 177—228 (1941); Henderson, The Federal Trade Commission (1924).
2
The FTC had denied a petition for reconsideration filed by respondent urging, among other things, the invalidity of the § 2(c) order on this ground. See 1963—1965 CCH Trade Reg.Rep.Transfer Binder 17,046.
3
We do not regard the provision in 15 U.S.C. § 41 for the exercise of powers by 'the remaining commissioners' in the case of 'a vacancy' as regulating the matter of a quorum. In contrast, except for the 1934 Act creating the Securities and Exchange Commission, 15 U.S.C. § 78d, which is also silent, the acts creating other major federal regulatory agencies expressly provided how many members shall constitute a quorum. See, e.g., 42 U.S.C. § 2031 (Atomic Energy Commission); 49 U.S.C. § 1321(c) (Civil Aeronautics Board); 47 U.S.C. § 154(h) (Federal Communications Commission); 16 U.S.C. § 792 (Federal Power Commission); 46 U.S.C. § 1111, as amended (Federal Maritime Commission); 49 U.S.C. § 17(3) (Interstate Commerce Commission); 29 U.S.C. § 153(b) (National Labor Relations Board); 50 U.S.C.App. § 1217(b) (Renegotiation Board); 19 U.S.C. § 1330(c) (United States Tariff Commission).
4
'A majority of the members of the Commission constitutes a quorum for the transaction of business.' Rule 1.7, Procedures and Rules of Practice for the Federal Trade Commission, as amended, 16 CFR § 1.7 (1967) (now § 6 of Statement of Organization of the FTC, 32 Fed.Reg. 8442). Although § 6 superseded Rule 1.7 as of July 1, 1967, it is identical in wording; we shall refer to the ruling as Rule 1.7, as it was cited in the proceedings to date.
In its original version the quorum provision was stated: 'Three members of the Commission shall constitute a quorum for the transaction of business.' 1 F.T.C. 595 (Rule adopted June 17, 1915). See also Henderson, supra, n. 1, at 71: 'The case is then set for oral argument before the full Commission (or at least a quorum of three members) * * *.'
Three courts of appeals have expressed appeal of the rule. See Drath v. FTC, 99 U.S.App.D.C. 289, 239 F.2d 452; Atlantic Refining Co. v. FTC, 344 F.2d 599 (C.A.6th Cir.); LaPeyre v. FTC, 366 F.2d 117 (C.A.5th Cir.). However, both the Fifth and Sixth Circuit decisions erroneously read the rule as providing, of itself, 'for decision by the majority of panels of three members.' 366 F.2d, at 122; 344 F.2d, at 607.
5
The question in Frischer was whether the United States Tariff Commission might act on majority vote of a quorum. The enabling act contained nothing on the subject of a quorum. 39 Stat. 795—798. The present statute provides that a majority of the Commissioners constitutes a quorum. 19 U.S.C. § 1330(c).
6
See, e.g., Missouri Pac. R. Co. v. Kansas, 248 U.S. 276, 39 S.Ct. 93, 63 L.Ed. 239 (1919); United States v. Ballin, 144 U.S. 1, 12 S.Ct. 507, 36 L.Ed. 321 (1892); Brown v. District of Columbia, 127 U.S. 579, 8 S.Ct. 1314, 32 L.Ed. 262 (1888); Mountain States Tel. & Tel. Co. v. People ex rel., 68 Colo. 487, 499—500, 190 P. 513, 517—518 (1920); Martin v. Lemon, 26 Conn. 192 (1857); Kaiser v. Real Estate Comm'n, 155 A.2d 715 (D.C.Mun.App.1959); Davidson v. State, 221 N.E.2d 814 (Ind.1966); Louisville & Jefferson County Planning & Zoning Comm'n v. Ogden, 307 Ky. 362, 210 S.W.2d 771 (1948); Codman v. Crocker, 203 Mass. 146, 89 N.E. 177, 25 L.R.A.,N.S., 9 (1909); Oakland v. Board of Conservation & Dev., 98 N.J.L. 806, 122 A. 311, 126 A. 534 (1923); Hill v. Ponder, 221 N.C. 58, 62, 19 S.E.2d 5, 8 (1942); Slavens v. State Bd. of Real Estate Examiners, 166 Ohio St. 285, 141 N.E.2d 887 (1957); State ex rel. Green v. Edmondson, 23 Ohio Dec. 85 (Common Pleas 912); Bray v. Barry, 91 R.I. 34, 41—42, 160 A.2d 577, 581 (1960); E. C. Olsen Co. v. State Tax Comm'n, 109 Utah 563, 570—571, 168 P.2d 324, 328 (1946); 80 Harv.L.Rev. 1589—1590 (1967); 42 N.Y.U.L.Rev. 135, 136—138 (1967). See also Snider v. Rinehart, 18 Colo. 18, 23—24, 31 P. 716, 718 (1892); Constitution, Jefferson's Manual and Rules of the House of Representatives, H.R.Doc. No. 529, 89th Cong., 2d Sess., §§ 52—57, 409, 508—510.
7
The authorities cited in Frischer as supporting the exception fail with one exception to do so. Four of the decisions cited dealt simply with the rule in cases where a court is equally divided in its vote. Madlem's Appeal, 103 Pa. 584 (1883); Putnam v. Rees, 12 Ohio 21 (1843); Northern R. Co. v. Concord R. Co., 50 N.H. 166 (1870); Ayres v. Bensley, 32 Cal. 632 (1867). Another, in addition to dealing with the question of an equally divided court, involved a constitutional provision for the concurrence of a majority of the judges sitting. Mugge v. Tate, Jones & Co., 51 Fla. 255, 41 So. 603 (1906). The others are likewise not in point. Deglow v. Kruse, 57 Ohio St. 434, 49 N.E. 477 (1898) (two of three constitutes quorum, both must concur); Denver & R.G.R. Co. v. Burchard. 35 Colo. 539, 558, 86 P. 749, 755 (1906) (constitutional requirement that three of seven judges concur). The whole of the court's discussion in the only decision in point, Johnson v. State ex rel. Brannon, 1 Ga. 271 (1846), was '(t)he law, organizing the Inferior Court, constitutes five justices the court. We hold the concurrence of a majority of the whole number necessary to the validity of their action.' Id., at 274. No authority was cited for this holding.
In addition, respondent cites Paine v. Foster, 9 Okl. 213, 53 P. 109 1896), 9 Okl. 257, 59 P. 252 (1899). Its holding was, however, predicated on a statutory requirement that three judges of a
five-judge court must concur in order to reverse a lower court judgment. See 9 Okl. 257, 259, 260, 60 P. 24 (dissenting opinion).
Congress has prescribed a quorum of six Justices for this Court but has not provided how many of the quorum can act for the Court. 28 U.S.C. § 1. Congress has, however, dealt expressly with the latter matter in the statutes concerning the courts of appeals, 28 U.S.C. § 46(d); the Court of Claims, 28 U.S.C. § 175(f) (1964 ed., Supp. II); and the Court of Customs and Patent Appeals, 28 U.S.C. § 215.
8
Accord, Martin v. Lemon; Kaiser v. Real Estate Comm'n; Louisville & Jefferson County Planning & Zoning Comm'n v. Ogden; Oakland v. Board of Conservation & Dev.; Slavens v. State Bd. of Real Estate Examiners; Bray v. Barry; E. C. Olsen Co. v. State Tax Comm'n, all supra, n. 6.
9
In fact, of the three agencies cited only the ICC and NLRB have express authority to act through a majority of a quorum; the FPC statute simply stipulates that three of five commissioners constitute a quorum, a statutory equivalent of the FTC rule sanctioned by the Court of Appeals.
The Atomic Energy Commission, 42 U.S.C. § 2031, and the Renegotiation Board, 50 U.S.C.App. § 1217(b), also are expressly
authorized to act on the majority vote of a quorum. The Federal Maritime Commission, 46 U.S.C. § 1111, as amended by Reorganization Plan No. 7 of 1961, on the other hand may act only on the unanimous vote of a quorum. Like the act creating the FTC, the acts creating the Civil Aeronautics Board, 49 U.S.C. § 1321(c), the Federal Communications Commission, 47 U.S.C. § 154(h), the Federal Power Commission, 16 U.S.C. § 792, the Securities and Exchange Commission, 15 U.S.C. § 78d, and the Tariff Commission, 19 U.S.C. § 1330(c), say nothing on the subject. These latter agencies nonetheless act on the majority vote of a quorum and in the cases of the CAB, the FCC, the SEC, and the Tariff Commission, the practice has been judicially approved. Braniff Airways, Inc. v. CAB, 126 U.S.App.D.C. 399, 406, 379 F.2d 453, 460 (dictum); WIBC, Inc. v. FCC, 104 U.S.App.D.C. 126, 128, 259 F.2d 941, 943 (dictum); Gearhart & Otis, Inc. v. SEC, 121 U.S.App.D.C. 186, 189, 348 F.2d 798, 801 (dictum); Frischer & Co. v. Bakelite Corp., supra (Tariff Commission). In the case of the FTC, the practice has been judicially approved in Atlantic Refining Co. v. FTC, supra, and LaPeyre v. FTC, supra. The earliest FTC decision noting the practice is apparently Luria Bros., 62 F.T.C. 243, 646, 655, decided in 1963. The first court challenge to the practice seems to have been that in 1965 in Atlantic Refining Co. v. FTC, supra. Cf. Forster Mfg. Co. v. FTC, 361 F.2d 340 (C.A.1st Cir.). See generally 35 Geo.Wash.L.Rev. 398 (1966); 80 Harv.L.Rev. 1589 (1967).
10
Reorganization Plan No. 4 of 1961, 75 Stat. 837, 15 U.S.C. § 41. Under the Reorganization Act, 5 U.S.C. §§ 133z—1 to 133z—15, the plan became operative when not disapproved by Congress within 60 days of its submission by the President. Resolutions to disapprove Plan No. 4 failed to pass in both the House and the Senate. 107 Cong.Rec. 10844—10856 (House); id., at 11721—11740 (Senate).
11
See Plan No. 1, H.R.Doc. No. 146, 87th Cong., 1st Sess. (1961) (SEC); Plan No. 2, H.R.Doc. No. 147 (FCC); Plan No. 3, H.R.Doc. No. 152 (CAB); Plan No. 4 H.R.Doc. No. 159 (FTC); Plan No. 5, H.R.Doc. No. 172 (NLRB); Plan No. 7, H.R.Doc. No. 187 (FMC). Plans 1, 2, and 5 were disapproved by Congress, 107 Cong.Rec. 10463 (No. 2); id., at 11003 (No. 1); id., at 13078 (No. 5). Plans 3, 4, and 7 became effective. See 75 Stat. 837, 840.
12
See nn. 10—11, supra.
13
It is true that the Commission's first 'official' acknowledgment of its practice of rendering tow-to-one decisions apparently did not come until 1963. See Luria Bros., supra, n. 9. Nevertheless, from the beginning the Commission has periodically had unfilled vacancies for significant lengths of time, vacancies which Congress of course had to know about. Thus between June 1, 1918, and January 16, 1919, there were two simultaneous vacancies; and there have been several single vacancies of some duration e.g., September 1921 to June 1922, July 1934 to August 1935, October 1949 to October 1950. If, as respondent suggests, the prospect of the Commission acting through the split decision of three Commissioners should be so inconsistent with the nature of the Commission, it is indeed strange that Congressmen conversant with rules of parliamentary procedure governing voting, see Jefferson's Manual, supra, n. 6, as well as the methodology of judicial decision making should not in all these years have taken steps to prevent a Commission—reduced to three by a double vacancy or by a single vacancy plus an abstention—from rending such a decision.
| 89
|
389 U.S. 241
88 S.Ct. 391
19 L.Ed.2d 444
Sanford ZWICKLER, Appellant,v.Aaron E. KOOTA, as District Attorney of the County of Kings.
No. 29.
Argued Oct. 12, 1967.
Decided Dec. 5, 1967.
Emanuel Redfield, New York City, for appellant.
Samuel A. Hirshowitz, New York City, for appellee.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Section 781—b of the New York Penal Law makes it a crime to distribute in quantity, among other things, any handbill for another which contains any statement concerning any candidate in connection with any election of public officers, without also printing thereon the name and post office address of the printer thereof and of the person at whose instance such handbill is so distributed.1 Appellant was convicted of violating the statute by distributing anonymous handbills critical of the record of a United States Congressman seeking re-election at the 1964 elections. The conviction was reversed, on state law grounds, by the New York Supreme Court, Appellate Term,2 and the New York Court of Appeals affirmed without opinion, People v. Zwickler, 16 N.Y.2d 1069, 266 N.Y.S.2d 140, 213 N.E.2d 467. Thereafter appellant, invoking the District Court's jurisdiction under the Civil Rights Act, 28 U.S.C. § 1343, and the Declaratory Judgment Act, 28 U.S.C. § 2201,3 sought declaratory and injunctive relief in the District Court for the Eastern District of New York on the ground that, on its face, the statute was repugnant to the guarantees of free expression secured by the Federal Constitution. His contention, below and in this Court, is that the statute suffers from impermissible 'overbreadth' in that its sweep embraces anonymous handbills both within and outside the protection of the First Amendment. Cf. Talley v. State of California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559. A three-judge court, one judge dissenting, applied the doctrine of abstention and dismissed the complaint,4 remitting appellant to the New York courts to assert his constitutional challenge in defense of any criminal prosecution for any future violations of the statute or, short of this, to the institution of 'an action in the state court for a declaratory judgment.'5 261 F.Supp. 985, 993. Because appellant's appeal presents an important question of the scope of the discretion of the district courts to abstain from deciding the merits of a challenge that a state statute on its face violates the Federal Constitution, we noted probable jurisdiction. 386 U.S. 906, 87 S.Ct. 854, 17 L.Ed.2d 781. We reverse.
2
We shall consider first whether abstention from the declaratory judgment sought by appellant would have been appropriate in the absence of his request for injunctive relief, and second, if not, whether abstention was nevertheless justified because appellant also sought an injunction against future criminal prosecutions for violation of § 781—b.
I.
3
During most of the Nation's first century, Congress relied on the state courts to vindicate essential rights arising under the Constitution and federal laws. The only exception was the 25th section of the Judiciary Act of 1789, 1 Stat. 85, providing for review in this Court when a claim of federal right was denied by a state court.6 But that policy was completely altered after the Civil War when nationalism dominated political thought7 and brought with it congressional investiture of the federal judiciary with enormously increased powers. The Act of March 3, 1875,8 was the principal '* * * measure of the broadening federal domain in the area of individual rights,' McNeese v. Board of Education, etc., 373 U.S. 668, 673, 83 S.Ct. 1433, 1436, 10 L.Ed.2d 622. By that statute '* * * Congress gave the federal courts the vast range of power which had lain dormant in the Constitution since 1789. These courts ceased to be restricted tribunals of fair dealing between citizens of different states and became the primary and powerful reliances for vindicating every right given by the Constitution, the laws, and treaties of the United States.' (Emphasis added.) Frankfurter & Landis, The Business of the Supreme Court: A Study in the Federal Judicial System, 65. Indeed, even before the 1875 Act, Congress, in the Civil Rights Act of 1871,9 subjected to suit, '(e)very person who, under color of any statute * * * subjects, or causes to be subjected, any citizen of the United States or other person * * * to the deprivation of any rights * * * secured by the Constitution and laws * * *,' 42 U.S.C. § 1983; and gave the district courts 'original jurisdiction' of actions '(t)o redress the deprivation, under color of any State law * * * of any right * * * secured by the Constitution * * *.' 28 U.S.C. § 1343(3).
4
In thus expanding federal judicial power, Congress imposed the duty upon all levels of the federal judiciary to give due respect to a suitor's choice of a federal forum for the hearing and decision of his federal constitutional claims. Plainly, escape from that duty is not permissible merely because state courts also have the solemn responsibility, equally with the federal courts, '* * * to guard, enforce, and protect every right granted or secured by the constitution of the United States * * *.' Robb v. Connolly, 111 U.S. 624, 637, 4 S.Ct. 544, 551, 28 L.Ed. 542. 'We yet like to believe that wherever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction simply because the rights asserted may be adjudicated in some other forum.' Stapleton v. Mitchell, D.C., 60 F.Supp. 51, 55; see McNeese v. Board of Education, etc., 373 U.S. at 674, 83 S.Ct., at 1437, n. 6. Cf. Cohens v. Commonwealth of Virginia, 6 Wheat. 264, 404, 5 L.Ed. 257. The judge-made doctrine of abstention, first fashioned in 1941 in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971, sanctions such escape only in narrowly limited 'special circumstances.' Propper v. Clark, 337 U.S. 472, 492, 69 S.Ct. 1333, 1344, 93 L.Ed. 1480.10 One of the 'special circumstances'—that thought by the District Court to be present in this case—is the susceptibility of a state statute of a construction by the state courts that would avoid or modify the constitutional question. Harrison v. NAACP, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152. Compare Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377.11
5
But we have here no question of a construction of § 781—b that would 'avoid or modify the constitutional question.' Appellant's challenge is not that the statute is void for 'vagueness,' that is, that it is a statute 'which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application * * *.' Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322.12 Rather his constitutional attack is that the statute, although lacking neither clarity nor precision, is void for 'overbreadth,' that is, that it offends the constitutional principle that 'a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.' NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 307, 84 S.Ct. 1302, 1314, 12 L.Ed.2d 325. See Aptheker v. Secretary of State, 378 U.S. 500, 508 509, 84 S.Ct. 1659, 1665, 12 L.Ed.2d 992; NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405; Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 81 S.Ct. 1333, 6 L.Ed.2d 301; Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231; Schware v. Board of Bar Examiners, 353 U.S. 232, 246, 77 S.Ct. 752, 760, 1 L.Ed.2d 796; Martin v. City of Struthers, 319 U.S. 141, 146—149, 63 S.Ct. 862, 864—866, 87 L.Ed. 1313; Cantwell v. State of Connecticut, 310 U.S. 296, 304—307, 60 S.Ct. 900, 904, 84 L.Ed. 1213; Schneider v. State of New Jersey, 308 U.S. 147, 161, 165, 60 S.Ct. 146, 152, 84 L.Ed. 155.13 Appellee does not contest appellant's suggestion that § 781—b is both clear and precise; indeed, appellee concedes that state court construction cannot narrow its allegedly indiscriminate cast and render unnecessary a decision of appellant's constitutional challenge. See Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659.
6
The analysis in United States v. Livingston, D.C., 179 F.Supp. 9, 12—13, aff'd, Livingston v. United States, 364 U.S. 281, 80 S.Ct. 1611, 4 L.Ed.2d 1719, is the guide to decision here:
7
'Regard for the interest and sovereignty of the state and reluctance needlessly to adjudicate constitutional issues may require a federal District Court to abstain from adjudication if the parties may avail themselves of an appropriate procedure to obtain state interpretation of state laws requiring construction. Harrison v. N.A.A.C.P., 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152. The decision in Harrison, however, is not a broad encyclical commanding automatic remission to the state courts of all federal constitutional questions arising in the application of state statutes. N.A.A.C.P. v. Bennett, 360 U.S. 471, 79 S.Ct. 1192, 3 L.Ed.2d 1375. Though never interpreted by a state court, if a state statute is not fairly subject to an interpretation which will avoid or modify the federal constitutional question, it is the duty of a federal court to decide the federal question when presented to it. Any other course would impose expense and long delay upon the litigants without hope of its bearing fruit.'
8
In Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762, (per curiam), we vacated an abstention order which had been granted on the sole ground that a declaratory judgment action ought to have been brought in the state court before the federal court was called upon to consider the constitutionality of a statute alleged to be violative of the Fourteenth Amendment. In McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622, we again emphasized that abstention cannot be ordered simply to give state courts the first opportunity to vindicate the federal claim.14 After examining the purposes of the Civil Rights Act, under which that action was brought, we concluded that '(w)e would defeat those purposes if we held that assertion of a federal claim in a federal court must await an attempt to vindicate the same claim in a state court.' 373 U.S., at 672, 83 S.Ct., at 1436. For the 'recognition of the role of state courts as the final expositors of state law implies no disregard for the primacy of the federal judiciary in deciding questions of federal law.' England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 415—416, 84 S.Ct. 461, 465, 11 L.Ed.2d 440.
9
These principles have particular significance when, as in this case, the attack upon the statute on its face is for repugnancy to the First Amendment. In such case to force the plaintiff who has commenced a federal action to suffer the delay of state court proceedings might itself effect the impermissible chilling of the very constitutional right he seeks to protect. See Dombrowski v. Pfister, 380 U.S. 479, 486—487, 85 S.Ct. 1116, 1120 1121, 14 L.Ed.2d 22; Baggett v. Bullitt, supra, 377 U.S. at 378 379, 84 S.Ct., at 1326; NAACP v. Button, supra, 371 U.S. at 433, 83 S.Ct. at 338; cf. Garrison v. State of Louisiana, 379 U.S 64, 74—75, 85 S.Ct. 209, 215—216, 13 L.Ed.2d 125; Smith v. People of State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205.
10
It follows that unless appellant's addition of a prayer for injunctive relief supplies one, no 'special circumstance' prerequisite to application of the doctrine of abstention is present here, Baggett v. Bullitt, 377 U.S. 360, 375—379, 84 S.Ct. 1316, 1324—1326, and it was error to refuse to pass on appellant's claim for a declaratory judgment.15
II.
11
In support of his prayer for an injunction against further prosecutions for violation of § 781—b, appellant's amended complaint alleges that he desires to continue to distribute anonymous handbills in quantity 'in connection with any election of party officials, nomination for public office and party position that may occur subsequent to said election compaign of 1966.'16 He further alleges that '(b)ecause of the previous prosecution of plaintiff for making the distribution of the leaflet * * * plaintiff is in fear of exercising his right to make distribution as aforesaid and is in danger of again being prosecuted therefor, unless his right of expression is declared by this court, without submitting himself to the penalties of the statute.'
12
The majority below was of the view that, in light of this prayer, abstention from deciding the declaratory judgment issue was justified because appellant had made no showing of 'special circumstances' entitling him to an injunction against criminal prosecution. Appellee supports this holding by reliance upon the maxim that a federal district court should be slow to act 'where its powers are invoked to interfere by injunction with threatened criminal prosecutions in a state court.' Douglas v. City of Jeannette, 319 U.S. 157, 162, 63 S.Ct. 877, 880. We have recently recognized the continuing validity of that pronouncement. Dombrowski v. Pfister, 380 U.S. 479, 483—485, 85 S.Ct. 1116, 1119 1120. However, appellant here did not, as did the plaintiffs in Douglas, 319 U.S., at 159, 63 S.Ct., at 879, seek solely to 'restrain threatened criminal prosecution of (him) in the state courts * * *.' Rather, he also requested a declaratory judgment that the state statute underlying the apprehended criminal prosecution was unconstitutional.
13
The majority below, although recognizing that Douglas might be inapposite to this case, 261 F.Supp., at 990, read Dombrowski v. Pfister as requiring abstention from considering appellant's request for a declaratory judgment in the absence of a showing by appellant of 'special circumstances to justify the exercise of federal court jurisdiction * * *' to grant injunctive relief. 261 F.Supp., at 991. Since the majority found no 'special circumstances' justifying that relief, the majority concluded that it was also required to abstain from considering the request for declaratory relief.
14
This conclusion was error. Dombrowski teaches that the questions of abstention and of injunctive relief are not the same.17 The question of the propriety of the action of the District Court in abstaining was discussed as an independent issue governed by different considerations. We squarely held that 'the abstention doctrine is inappropriate for cases such as the present one where * * * statutes are justifiably attached on their face as abridging free expression * * *.' 380 U.S., at 489—490, 85 S.Ct., at 1122. This view was reaffirmed in Keyishian v. Board of Regents, 385 U.S. 589, 601, 87 S.Ct. 675, 682, n. 9, when a statute was attacked as unconstitutional on its face and we said, citing Dombrowski and Baggett v. Bullitt, supra, '(t)his is not a case where abstention pending state court interpretation would be appropriate * * *.'
15
It follows that the District Court's views on the question of injunctive relief are irrelevant to the question of abstention here. For a request for a declaratory judgment that a state statute is overbroad on its face must be considered independently of any request for injunctive relief against the enforcement of that statute. We hold that a federal district court has the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunction. Douglas v. City of Jeannette, supra, is not contrary. That case involved only the request for injunctive relief. The Court refused to enjoin prosecution under an ordinance declared unconstitutional the same day in Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292. Comity between the federal and Pennsylvania courts was deemed sufficient reason to justify the holding that 'in view of the decision rendered today in Murdock * * * we find no ground for supposing that the intervention of a federal court, in order to secure petitioners' constitutional rights, will be either necessary or appropriate.' 319 U.S., at 165, 63 S.Ct., at 882. It will be the task of the District Court on the remand to decide whether an injunction will be 'necessary or appropriate' should appellant's prayer for declaratory relief prevail. We express no view whatever with respect to the appropriateness of declaratory relief in the circumstances of this case or the constitutional validity of the law.
16
The judgment of the District Court is reversed and the case is remanded for further proceedings consistent with this opinion. It is so ordered.
17
Reversed and remanded.
18
Mr. Justice HARLAN, concurring in the judgment.
19
I agree that, in the circumstances of this case, the District Court should not have declined to adjudicate appellant's constitutional claims. I am, however, constrained by my uncertainty as to the implications of certain portions of the Court's opinion to state my views separately.
20
This Court has repeatedly indicated that 'abstention' is appropriate 'where the order to the parties to repair to the state court would clearly serve one of two important countervailing interests: either the avoidance of a premature and perhaps unnecessary decision of a serious federal constitutional question, or the avoidance of the hazard of unsettling some delicate balance in the area of federal-state relationships.' Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 32, 79 S.Ct. 1070, 1074, dissenting opinion). See generally Harrison v. NAACP, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152; Allegheny County v. Frank Mashuda Co., 360 U.S. 185, 188—189, 79 S.Ct. 1060, 1062—1063, 3 L.Ed.2d 1163. The first of these interests has been found in cases in which the federal constitutional issue might be mooted or 'presented in a different posture'1 by a state court determination of pertinent state law. See, e.g., Chicago v. Fieldcrest Dairies, Inc., 316 U.S. 168, 62 S.Ct. 986, 86 L.Ed. 1355; Spector Motor Service, Inc., v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101; Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725. The second of these interests has been found, for example, in situations in which the exercise of jurisdiction by a federal court would disrupt a state administrative process, Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424; interfere with the collection of state taxes, Toomer v. Witsell, 334 U.S. 385, 392, 68 S.Ct. 1156, 1160, 92 L.Ed. 1460, or otherwise create 'needless friction' between the enforcement of state and federal policies. Louisiana Power & Light Co. v. City of Thibodaux, supra, 360 U.S., at 33, 79 S.Ct., at 1075. See also Harrison v. NAACP, supra.
21
I agree that the present situation is within none of these categories, and that the District Court should therefore not have dismissed, but proceeded to judgment on the issues in the case.2 In particular, I can find in this statute no room for a state construction which might obviate the need for a decision on the constitutional issue. If, however, the opinion of the Court is intended to suggest that the central, or even a principal, issue in deciding the propriety of abstention is whether the complaint has alleged 'overbreadth,' or only 'vagueness,' with respect to the New York statute in question, I cannot agree. My reasons are three. First, neither principle has ever been definitively delimited by this Court; a doctrine built upon their supposed differences would be likely to founder for lack of a foundation. See generally, Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67. Second, there is no reason to suppose that a case involving allegations of overbreadth would inevitably be inappropriate for abstention; the federal court might nonetheless reasonably consider that its exercise of jurisdiction would create 'needless friction' with state officials, Louisiana Power & Light Co. v. City of Thibodaux, supra, 360 U.S., at 33, 79 S.Ct., at 1075, or it might reasonably conclude that a state court determination would present the federal issues 'in a different posture.' County of Allegheny v. Frank Mashuda Co., supra, 360 U.S., at 189, 79 S.Ct., at 1063. Third, such a standard might in effect reduce the abstention doctrine to a pleader's option; the fundamental interests served by the doctrine would be jettisoned whenever a complainant had sufficient foresight to insert into his pleading an allegation of overbreadth. I can see no proper alternative to a careful examination, in light of the interests served by abstention, of the circumstances of each case.
22
I agree with the Court, substantially for the reasons given in its opinion, that whether or not injunctive relief might ultimately prove appropriate in this instance is not a pertinent question at this stage of the matter.
23
I accordingly concur in the judgment of the Court, but in doing so wish to emphasize that, like the Court, I intimate no view whatever upon the merits of the constitutional challenge to this statute.
1
N.Y. Penal Law § 781—b, McKinney's Consol.Laws, c. 40 (now superseded in identical language by N.Y. Election Law § 457, McKinney's Consol.Laws, c. 17, see Laws 1965, c. 1031, at 1782 1783):
'No person shall print, publish, reproduce or distribute in quantity, nor order to be printed, published, reproduced or distributed
by any method any handbill, pamphlet, circular, post card, placard or letter for another, which contains any statement, notice, information, allegation or other material concerning any political party, candidate, committee, person, proposition or amendment to the state constitution, whether in favor of or against a political party, candidate, committee, person, proposition or amendment to the state constitution, in connection with any election of public officers, party officials, candidates for nomination for public office, party position, proposition or amendment to the state constitution without also printing or reproducing thereon legibly and in the English language the name and post-office address of the printer thereof and of the person or committee at whose instance or request such handbill, pamphlet, circular, post card, placard or letter is so printed, published, reproduced or distributed, and of the person who ordered such printing, publishing, reproduction or distribution, and no person nor committee shall so print, publish, reproduce or distribute or order to be printed, published, reproduced or distributed any such handbill, pamphlet, circular, post card, placard or letter without also printing, publishing, or reproducing his or its name and post-office address thereon. A violation of the provisions of this section shall constitute a misdemeanor.
'The term 'printer' as used in this section means the principal who or which by independent contractual relationship is responsible directly to the person or committee at whose instance or request a handbill, pamphlet, circular, post card, placard or letter is printed, published, reproduced or distributed by such principal, and does not include a person working for or employed by such a principal.'
2
'In our opinion, the People failed to establish that defendant distributed anonymous literature 'in quantity' in violation of the provisions of Section 781(b) (sic) of the Penal Law. We do not reach the question of the constitutionality of the statute involved.' People v. Zwickler, Sup.Ct., App.Term, Kings County, April 23, 1965 (unreported), as quoted by Zwickler v. Koota, 261 F.Supp. 985, 987.
3
Appellee questions the statement of the majority below that '(t)he complaint * * * alleges a case or controversy which is within the adjudicatory power of this court. Douglas v. City of Jeannette, 319 U.S. 157, 162, 63 S.Ct. 877, 87 L.Ed. 1324.' 361 F.Supp., at 989. Notwithstanding this statement, we are not persuaded, in light of its decision to abstain, that the majority below considered the prerequisites to a declaratory judgment or that these issues were in fact adjudicated. 'Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.' Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826. It will be for the District Court on the remand to decide whether appellant's allegations entitle him to a declaratory judgment on the constitutional question.
4
It is better practice, in a case raising a federal constitutional or statutory claim, to retain jurisdiction, rather than to dismiss, see Note, Federal-Question Abstention: Justice Frankfurter's Doctrine in an Activist Era, 80 Harv.L.Rev. 604 (1967), but other courts have also ordered dismissal. Compare Government 3 Civic Employees Organizing Committee, CIO v. Windsor, 353 U.S. 364, 77 S.Ct. 838, 1 L.Ed.2d 894; Shipman v. DuPre, 339 U.S. 321, 70 S.Ct. 640, 94 L.Ed. 877, with Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 69 S.Ct. 606, 93 L.Ed. 741; Local 333B, United Marine Div., Int'l Longshoremen's Ass'n (AFL) v. Battle, 101 F.Supp. 650 (D.C.E.D.Va.), aff'd per curiam, 342 U.S. 880, 72 S.Ct. 178, 96 L.Ed. 661. See generally Note, Judicial Abstention From the Exercise of Federal Jurisdiction, 59 Col.L.Rev. 749, 772 774 (1959).
5
New York provides a Declaratory Judgment remedy, N.Y.Civ.Prac. § 3001. See De Veau v. Braisted, 5 A.D.2d 603, 174 N.Y.S.2d 596 (2d Dept.), aff'd, 5 N.Y.2d 236, 183 N.Y.S.2d 793, 157 N.E.2d 165, aff'd, 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 1109.
6
Thus Congress did not exercise the grant under Art. III, § 2, cl. 1, of the Constitution: 'The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority * * *.' Original 'arising under' jurisdiction was vested in the federal courts by § 11 of the Act of February 13, 1801, c. 4, 2 Stat. 92, but it was repealed only a year later by § 1 of the Act of March 8, 1802, c. 8, 2 Stat. 132. An earlier version of the Judiciary Act of 1789, which died in committee, provided for jurisdiction in the federal courts "of all cases of federal jurisdiction, whether in law or equity above the value of five hundred dollars'. * * *' Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv.L.Rev. 49, 61 (1923). See generally Frankfurter & Landis, The Business of the Supreme Court: A Study in the Federal Judicial System, c. 1.
7
'The history of the federal courts is woven into the history of the times. The factors in our national life which came in with reconstruction are the same factors which increased the business of the federal courts, enlarged their jurisdiction, modified and expanded their structure.' Frankfurter & Landis, supra, at 59; see also Frankfurter, Distribution of Judicial Power Between United States and State Courts, 13 Cornell L.Q. 499, 507 511 (1928).
8
The statute granted the district courts 'original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority * * *.' Act of March 3, 1875, § 1, 18 Stat. 470. See generally Hart &Wechsler, The Federal Courts and the Federal System 727—733; Wright, Federal Courts § 17; Chadbourn & Levin, Original Jurisdiction of Federal Questions, 90 U.Pa.L.Rev. 639 (1942); Forrester, Federal Question, Jurisdiction and Section 5, 18 Tulane L.Rev. 263 (1943); Forrester, The Nature of a 'Federal Question,' 16 Tulane L.Rev. 362 (1942); Mishkin, The Federal 'Question' in the District Courts, 53 Col.L.Rev. 157 (1953).
'This development in the federal judiciary, which in the retrospect seems revolutionary, received hardly a contemporary comment.' Frankfurter & Landis, supra, at 65. While there is practically no legislative history of the Act, see id., at 65—69, for a summary of what history is available, commentators are generally agreed that a broad grant of jurisdiction was intended. See, e.g., Forrester, The Nature of a 'Federal Question,' 16 Tulane L.Rev. 362, 374—385 (1942); Mishkin, The Federal 'Question' in the District Courts, 53 Col.L.Rev. 157, 160 (1953). This is not to say that this Court has read the congressional grant of power in the Act of 1875 as equated with the potential for federal jurisdiction found in Article III of the Constitution. See, e.g., National Mut. Ins. Co. of Dist. of Col. v. Tidewater Transfer Co., 337 U.S. 582, 613—615, 69 S.Ct. 1173, 1188—1189, 93 L.Ed. 1556 (opinion of Rutledge, J.); Shoshone Mining Co. v. Rutter, 177 U.S. 505, 20 S.Ct. 726, 44 L.Ed. 864.
9
Five Civil Rights Acts were passed between 1866 and 1875. See 14 Stat. 27 (1866), 16 Stat. 140 (1870), 16 Stat. 433 (1871), 17 Stat. 13 (1871), 18 Stat. 335 (1875). Only § 1 of the Act of April 20, 1871, 17 Stat. 13, presently codified as 42 U.S.C. § 1983, achieved measurable success in later years. See generally Note, The Civil Rights Act of 1871: Continuing Vitality, 40 Notre Dame Law 70 (1964).
10
See, e.g., City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U.S. 639, 79 S.Ct. 455, 3 L.Ed.2d 562; Government & Civic Employees Organizing Committee, CIO v. Windsor, 353 U.S. 364, 77 S.Ct. 838; Leiter Minerals, Inc. v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267; Albertson v. Millard, 345 U.S. 242, 73 S.Ct. 600, 97 L.Ed. 983; Shipman v. DuPre, 339 U.S. 321, 70 S.Ct. 640; Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 69 S.Ct. 606; American Federation of Labor v. Watson, 327 U.S. 582, 66 S.Ct. 761, 90 L.Ed. 873; Alabama State Federation of Labor, Local Union No. 103, United Broth. of Carpenters and Joiners of America v. McAdory, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725; Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101; City of Chicago v. Fieldcrest Dairies, Inc., 316 U.S. 168, 62 S.Ct. 986, 86 L.Ed. 1355. See general Wright, The Abstention Doctrine Reconsidered, 37 Tex.L.Rev. 815 (1959); Note, Judicial Abstention From the Exercise of Federal Jurisdiction, 59 Col.L.Rev. 749 (1959); Note, Federal-Question Abstention: Justice Frankfurter's Doctrine in an Activist Era, 80 Harv.L.Rev. 604 (1967); Note, Doctrine of Abstention: Need of Reappraisal, 40 Notre Dame Law, 101 (1964). Even when parties are sent to state court for clarification of state law, the federal question may be reserved for decision by the district court. England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440.
11
Other 'special circumstances' have been found in diversity cases, see, e.g., Clay v. Sun Insurance Ltd., 363 U.S. 207, 80 S.Ct. 1222, 4 L.Ed.2d 1170; Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058; Meredith v. City of Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9 but see County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 79 S.Ct. 1060, 3 L.Ed.2d 1163; cf. Note, Abstention and Certification in Diversity Suits: 'Perfection of Means and Confusion of Goals,' 73 Yale L.J. 850, and cases cited therein; and in cases involving possible disruption of complex state administrative processes, see, e.g., Alabama Public Serv. Comm'n v. Southern R. Co., 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002; Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424; cf. County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 79 S.Ct. 1060, 3 L.Ed.2d 1163; Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058. See generally Wright, Federal Courts § 52; Note, 59 Col.L.Rev., supra, at 757—762.
12
A lower court held 'void for indefiniteness' a predecessor statute of § 781—b. People v. Clampitt, 34 Misc.2d 766, 222 N.Y.S.2d 23 (Ct.Spec.Sess., N.Y. City, 1961). Thereupon the legislature amended the statute to its present form, providing that an offense could not be made out under it until whatever literature might be 'printed' or 'reproduced' might also be 'distributed.' The constitutionality of the amended statute has not been determined in the New York courts.
13
For the different constitutional considerations involved in attacks for 'vagueness' and for 'overbreadth' see Keyishian v. Board of Regents, 385 U.S. 589, 603—604, 608—610, 87 S.Ct. 675, 683, 684, 686—687, 17 L.Ed.2d 629.
14
We have frequently emphasized that abstention is not to be ordered unless the state statute is of an uncertain nature, and is obviously susceptible of a limiting construction. Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 1181, 14 L.Ed.2d 50; Davis v. Mann, 377 U.S. 678, 690, 84 S.Ct. 1441, 1447, 12 L.Ed.2d 609; Baggett v. Bullitt, 377 U.S. 360, 375—379, 84 S.Ct. 1316, 1324—1326; England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 415—416, 84 S.Ct. 461; McNeese v. Board of Education, 373 U.S. 668, 673, 674, 83 S.Ct. 1433, 1436; NAACP v. Bennett, 360 U.S. 471, 79 S.Ct. 1192; City of Chicago v. Atchison, T. & S.F.R. Co., 357 U.S. 77, 84, 78 S.Ct. 1063, 1067, 2 L.Ed.2d 1174; Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101. Note, 80 Harv.L.Rev., supra, at 605; Note, 40 Notre Dame Law, supra, n. 10, at 102.
15
Of course appellant must establish the elements governing the issuance of a declaratory judgment. See n. 3, supra.
16
Appellant urges that these allegations refute appellee's suggestion in his Motion to Dismiss that '(s)ince the political literature appellant intended to distribute all related to the 1966 congressional candidacy of Abraham Multer * * *, this matter now might be properly dismissed for mootness.' This dispute will be part of the issues to be decided by the District Court on the remand. See n. 3, supra. Multer has since been elected to the Supreme Court of New York and will take office on January 1, 1968. New York Times, p. 31, col. 2, November 8, 1967.
17
Our discussion of the issue of injunctive relief in Dombrowski is at 380 U.S., at 483—489, 85 S.Ct., at 1119—1122, and our discussion of the issue of abstention is at 489—492, 85 S.Ct. 1122—1124.
1
County of Allegheny v. Frank Mashuda Co., supra, 360 U.S., at 189, 79 S.Ct., at 1063.
2
Unlike the Court, I obtain no assistance for this conclusion from the ubiquitous and slippery 'chilling effect' doctrine. Appellant might have sought in the state courts the declaratory relief he now asks. N.Y.Civ.Prac. § 3001. Given the state courts' disposition of appellant's earlier prosecution, he can scarcely maintain that those courts would not promptly provide any relief to which he is entitled. Absent such allegations, it is difficult to see how that doctrine can have the slightest relevance. See Dombrowski v. Pfister, 380 U.S. 479, 499, 85 S.Ct. 1116, 1127, 14 L.Ed.2d 22 (dissenting opinion). In these circumstances, to apply the amorphous chilling-effect doctrine would serve only to chill the interests sought to be maintained by abstention.
| 89
|
389 U.S. 235
88 S.Ct. 362
19 L.Ed.2d 438
Minnie E. NASH, Petitioner,v.FLORIDA INDUSTRIAL COMMISSION et al.
No. 48.
Argued Nov. 9, 1967.
Decided Dec. 5, 1967.
Michael H. Gottesman, Washington, D.C., for petitioner.
Glenn L. Greene, Jr. for respondents.
Mr. Justice BLACK delivered the opinion of the Court.
1
Section 10 of the National Labor Relations Act, 49 Stat. 453, as amended, lations Board to initiate unfair labor 29 U.S.C. § 160, authorizes the National Labor Relations Board to initiate unfair labor practice proceedings whenever some person charges that another person has committed such practices. The Board cannot start a proceeding without such a charge being filed with it. See e.g., National Labor Relations Board v. National Licorice Co., 104 F.2d 655 (C.A.2d Cir.), modified on other grounds 309 U.S. 350, 60 S.Ct. 569, 84 L.Ed. 799; Local 138, Operating Engineers (Skura), 148 N.L.R.B. 679, 681. The crucial question presented here is whether a State can refuse to pay its unemployment insurance to persons solely because they have preferred unfair labor practice charges against their former employer.
2
The facts are stipulated and need not be stated at length. The petitioner, Mrs. Nash, who previously had been out on strike against her employer, the Stanley Works and Stanley Building Specialties, was, pursuant to union-management agreement, reinstated to her former job on April 14, 1965. Approximately five weeks later, on May 16, 1965, she was laid off by the company because of alleged 'slow production,' meaning that the company had insufficient work to warrant her retention. Mrs. Nash was unemployed from this time until October 5, 1965, when the company voluntarily called her back to work. She has been allowed unemployment compensation, under Florida Statutes, chapter 443, F.S.A., from the time of her discharge on May 16, up to June 17, but denied any compensation from June 17 to October 5. The reason given for this denial was that on June 17 she filed an unfair labor practice charge against her employer seeking reinstatement and back pay on the ground that the employer had actually laid her off because of her union activities in violation of the National Labor Relations Act, and that this charge was still pending on October 5, when she resumed work. In making this ruling the Florida Industrial Commission relied on § 443.06 of the Florida Unemployment Compensation Law, F.S.A. which provides:
3
'An individual shall be disqualified for (unemployment) benefits * * * (4) For any week with respect to which the commission finds that his total or partial unemployment is due to a labor dispute in active progress which exists at the factory, establishment or other premises at which he is or was last employed * * *.'
4
The Commission held that the filing of the unfair labor practice charge brought petitioner within the wording of the Act in that her 'unemployment' then became 'due to a labor dispute.' Thus the sole reason that petitioner was disqualified from compensation was that she filed an unfair labor practice charge. According to the Commission, the act of filing was the determinative factor under Florida law which rendered petitioner ineligible for unemployment compensation. The District Court of Appeal of Florida, Third District, denied per curiam petitioner's application for writ of certiorari to review the determinations of the Florida Industrial Commission Unemployment Compensation Board of Review. Since such denial by the Florida District Court of Appeal apparently precludes further state review,1 we granted certiorari because of the important constitutional question involved, specifically whether the Commission's ruling violates the Supremacy Clause of the Constitution (Art. VI. cl. 2) because it allegedly 'frustrates' enforcement of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C. § 151 et seq.2
5
The National Labor Relations Act is a comprehensive code passed by Congress to regulate labor relations in activities affecting interstate and foreign commerce. As such it is of course the law of the land which no state law can modify or repeal. Implementation of the Act is dependent upon the initiative of individual persons who must, as petitioner has done here, invoke its sanctions through filing an unfair labor practice charge.3 Congress has made it clear that it wishes all persons with information about such practices to be completely free from coercion against reporting them to the Board. This is shown by its adoption of § 8(a)(4) which makes it an unfair labor practice for an employer to discriminate against an employee because he has filed charges. See John Hancock Mutual Life Insurance Co. v. National Labor Relations Board, 89 U.S.App.D.C. 261, 263—264, 191 F.2d 483, 485—486; National Labor Relations Board v. Lamar Creamery Co., 246 F.2d 8, 9—10 (C.A.5th Cir.); National Labor Relations Board v. Syracuse Stamping Co., 208 F.2d 77, 80 (C.A.2d Cir.). And it has been held that it is unlawful for an employer to seek to restrain an employee in the exercise of his right to file charges. National Labor Relations Board v. Clearfield Cheese Co., 213 F.2d 70 (C.A.3d Cir.); National Labor Relations Board v. Gibbs Corp., 308 F.2d 247 (C.A.5th Cir.); Roberts v. National Labor Relations Board, 121 U.S.App.D.C. 297, 350 F.2d 427.
6
We have no doubt that coercive actions which the Act forbids employers and unions to take against persons making charges are likewise prohibited from being taken by the States. The action of Florida here, like the coercive actions which employers and unions are forbidden to engage in, has a direct tendency to frustrate the purpose of Congress to leave people free to make charges of unfair labor practices to the Board. Florida has applied its Unemployment Compensation Law so that an employee who believes he has been wrongly discharged has two choices: (1) he may keep quiet and receive unemployment compensation until he finds a new job or (2) he may file an unfair labor practice charge, thus under Florida procedure surrendering his right to unemployment compensation, and risk financial ruin if the litigation is protracted. Even the hope of a future award of back pay may mean little to a man of modest means and heavy responsibilities faced with the immediate severance of sustaining funds. It appears obvious to us that this financial burden which Florida imposes will impede resort to the Act and thwart congressional reliance on individual action. A national system for the implementation of this country's labor policies is not so dependent on state law. Florida should not be permitted to defeat or handicap a valid national objective by threatening to withdraw state benefits from persons simply because they cooperate with the Government's constitutional plan.4
7
In holding that this Florida law as applied in this case conflicts with the Supremacy Clause of the Constitution we but follow the unbroken rule that has come down through the years.
8
In McCulloch v. Maryland, 4 Wheat. 316, 436, decided in 1819, this Court declared the States devoid of power 'to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government.' In Davis v. Elmira Savings Bank, 161 U.S. 275, 16 S.Ct. 502, 40 L.Ed. 700 decided in 1896, this Court declared that a state law cannot stand that 'either frustrates the purpose of the national legislation or impairs the efficiency of those agencies of the Federal government to discharge the duties, for the performance of which they were created.' 161 U.S., at 283, 16 s.Ct., at 503. And again in Hill v. State of Florida ex rel. Watson, 325 U.S. 538, 542—543, 65 S.Ct. 1373, 1375, 89 L.Ed. 1782, decided in 1945, this Court struck down a labor regulation saying it stood "as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. * * *" 325 U.S., at 542, 65 S.Ct., at 1375.
9
All of the cases just cited and many more support our invalidation under the Supremacy Clause of the Florida Unemployment Compensation Law as here applied.
10
Reversed.
11
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
1
The Florida Supreme Court seems to have decided that it lacks jurisdiction by appeal to consider per curiam denials of certiorari by the Florida District Court of Appeal. Callendar v. State, Fla., 181 So.2d 529. While it is true that a district court of appeal may certify a question 'of great public interest' to the Florida Supreme Court, this is done upon the district court of appeal's own motion, and although litigants may file a suggestion that a particular question be certified, such suggestion has been declared to have 'no legal effect.' See Whitaker v. Jacksonville Expressway Authority, 131 So.2d 22 (1st D.C.App.Fla. 1961). Thus, it is impossible for us to say that under Florida law petitioner here had any right to call upon the State Supreme Court for review. In these circumstances, we therefore are unable to say that the District Court of Appeal was not the highest court in Florida wherein a decision could be had as required by 28 U.S.C. § 1257(3).
2
Because of our disposition of the case on Supremacy Clause grounds, we need not consider petitioner's alternative argument that such ruling violates her privileges and immunities of United States citizenship in contravention of the Fourteenth Amendment.
3
Although § 10(a) of the Act empowers the Board to prevent unfair labor practices, and thus to protect the employees' § 7 rights, § 10(b) conditions the exercise of that power on the filing of charges; the Board cannot initiate its own processes.
4
Respondents suggest that petitioner might enjoy a windfall if she was paid compensation and was subsequently awarded back pay by the Labor Board. This argument is unresponsive to the issue in dispute, however, since a State is free to recoup compensation payments made during any period covered by a back-pay award. See National Labor Relations Board v. Gullett Gin Co., 340 U.S. 361, 365, n. 1, 71 S.Ct. 337, 340, 95 L.Ed. 337.
| 910
|
389 U.S. 217
88 S.Ct. 353
19 L.Ed.2d 426
UNITED MINE WORKERS OF AMERICA, DISTRICT 12, Petitioner,v.ILLINOIS STATE BAR ASSOCIATION et al.
No. 33.
Argued Oct. 17, 1967.
Decided Dec. 5, 1967.
Harrison Combs, Washington, D.C., for petitioner.
Bernard H. Bertrand, East St. Louis, Ill., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
The Illinois State Bar Association and others filed this complaint to enjoin the United Mine Workers of America, District 12, from engaging in certain practices alleged to constitute the unauthorized practice of law. The essence of the complaint was that the Union had employed a licensed attorney on a salary basis to represent any of its members who wished his services to prosecute workmen's compensation claims before the Illinois Industrial Commission. The trial court found from facts that were not in dispute that employment of an attorney by the association for this purpose did constitute unauthorized practice and permanently enjoined the Union from '(e)mploying attorneys on salary or retainer basis to represent its members with respect to Workmen's Compensation claims and any and all other claims which they may have under the statutes and laws of Illinois.'1 The Illinois Supreme Court rejected the Mine Workers' contention that this decree abridged their freedom of speech, petition, and assembly under the First and Fourteenth Amendments and affirmed. We granted certiorari, 386 U.S. 941, 87 S.Ct. 973, 17 L.Ed.2d 872 (1967), to consider whether this holding conflicts with our decisions in Broth. of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964), and NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).
2
As in the Trainmen case, we deal here with a program that has been in successful operation for the Union members for decades. Shortly after enactment of the Illinois Workmen's Compensation Statute2 in 1911, the Mine Workers realized that some form of mutual protection was necessary to enable them to enjoy in practice the many benefits that the statute promised in theory. At the Union's 1913 convention the secretary-treasurer reported that abuses had already developed: 'the interests of the members were being juggled and even when not, they were required to pay forty or fifty per cent of the amounts recovered in damage suits, for attorney fees.' In response to this situation the convention instructed the Union's incoming executive board to establish the 'legal department' which is now attacked for engaging in the unauthorized practice of law.
3
The undisputed facts concerning the operation of the Union's legal department are these. The Union employs one attorney on a salary basis to represent members and their dependents in connection with claims for personal injury and death under the Illinois Workmen's Compensation Act. The terms of the attorney's employment, as outlined in a letter from the acting president of the Union to the present attorney, include the following specific provision: 'You will receive no further instructions or directions and have no interference from the District, nor from any officer, and your obligations and relations will be to and with only the several persons you represent.' The record shows no departure from this agreement. The Union provides injured members with forms entitled 'Report to Attorney on Accidents' and advises them to fill out these forms and send them to the Union's legal department. There is no language on the form which specifically requests the attorney to file with the Industrial Commission an application for adjustment of claim on behalf of the injured member, but when one of these forms is received, the attorney presumes that it does constitute such a request. The members may employ other counsel if they desire, and in fact the Union attorney frequently suggests to members that they can do so. In that event the attorney is under instructions to turn the member's file over to the new lawyer immediately.
4
The applications for adjustment of claim are prepared by secretaries in the Union offices, and are then forwarded by the Secretaries to the Industrial Commission.3 After the claim is sent to the Commission, the attorney prepares his case from the file, usually without discussing the calim with the member involved. The attorney determines what he believes the claim to be worth, presents his views to the attorney for the respondent coal company during prehearing negotiations, and attempts to reach a settlement. If an agreement between opposing counsel is reached, the Union attorney will notify the injured member, who then decides, in light of his attorney's advice, whether or not to accept the offer. If no settlement is reached, a hearing is held before the Industrial Commission, and unless the attorney has had occasion to discuss a settlement proposal with the member, this hearing will normally be the first time the attorney and his client come into personal contact with each other. It is understood by the Union membership, however, that the attorney is available for conferences on certain days at particular locations. The full amount of any settlement or award is paid directly to the injured member. The attorney receives no part of it, his entire compensation being his annual salary paid by the Union.
5
The Illinois Supreme Court rejected petitioner's contention that its members had a right, protected by the First and Fourteenth Amendments, to join together and assist one another in the assertion of their legal rights by collectively hiring an attorney to handle their claims. That court held that our decision in Railroad Trainmen v. Virginia Bar, supra, protected plans under which workers were advised to consult specific attorneys, but did not extend to protect plans involving an explicit hiring of such attorneys by the union. The Illinois court recognized that in NAACP v. Button, supra, we also held protected a plan under which the attorneys recommended to members were actually paid by the association, but the Illinois court viewed the Button case as concerned chiefly with litigation that can be characterized as a form of political expression. We do not think our decisions in Trainmen and Button can be so narrowly limited. We hold that the freedom of speech, assembly, and petition guaranteed by the First and Fourteenth4 Amendments gives petitioner the right to hire attorneys on a salary basis to assist its members in the assertion of their legal rights.
6
We start with the premise that the rights to assemble peaceably and to petition for a redress or grievances are among the most precious of the liberties safeguarded by the Bill of Rights. These rights, moreover, are intimately connected both in origin and in purpose, with the other First Amendment rights of free speech and free press. 'All these, though not identical, are inseparable.' Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 323, 89 L.Ed. 430 (1945). See De Jonge v. State of Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 259, 81 L.Ed. 278 (1937). The First Amendment would, however, be a hollow promise if it left government free to destroy or erode its guarantees by indirect restraints so long as no law is passed that prohibits free speech, press, petition, or assembly as such. We have therefore repeatedly held that laws which actually affect the exercise of these vital rights cannot be sustained merely because they were enacted for the purpose of dealing with some evil within the State's legislative competence, or even because the laws do in fact provide a helpful means of dealing with such an evil. Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939); Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).
7
The foregoing were the principles we invoked when we dealt in the Button and Trainmen cases with the right of an association to provide legal services for its members. That the States have broad power to regulate the practice of law is, of course, beyond question. See Trainmen, supra, at 6, 84 S.Ct. at 1116. But it is equally apparent that broad rules framed to protect the public and to preserve respect for the administration of justice can in their actual operation significantly impair the value of associational freedoms. Thus in Button, supra, we dealt with a plan under which the NAACP not only advised prospective litigants to seek the assistance of particular attorneys but in many instances actually paid the attorneys itself. We held that dangers of baseless litigation and conflicting interests between the association and individual litigants far too speculative to justify the broad remedy invoked by the State, a remedy that would have seriously crippled the efforts of the NAACP to vindicate the rights of its members in court. Likewise in the Trainmen case there was a theoretical possibility that the union's interests would diverge from that of the individual litigant members, and there was a further possibility that if this divergence ever occurred, the union's power to cut off the attorney's referral business could induce the attorney to sacrifice the interests of his client. Again we ruled that this very distant possibility of harm could not justify a complete prohibition of the Trainmen's efforts to aid one another in assuring that each injured member would be justly compensated for his injuries.
8
We think that both the Button and Trainmen cases are controlling here. The litigation in question is, of course, not bound up with political matters of acute social moment, as in Button, but the First Amendment does not protect speech and assembly only to the extent it can be characterized as political. 'Great secular causes, with small ones, are guarded. The grievances for redress of which the right of petition was insured, and with it the right of assembly, are not solely religious or political ones. And the rights of free speech and a free press are not confined to any field of human interest.' Thomas v. Collins, supra, 323 U.S. at 531, 65 S.Ct. at 323. And of course in Trainmen, where the litigation in question was, as here, solely designed to compensate the victims of industrial accidents, we rejected the contention made in dissent, see 377 U.S., at 10, 84 S.Ct. at 1118 (Clark, J.), that the principles announced in Button were applicable only to litigation for political purposes. See 377 U.S., at 8, 84 S.Ct. at 1117.
9
Nor can the case at bar be distinguished from the Trainmen case in any persuasive way.5 Here, to be sure, the attorney is actually paid by the Union, not merely the beneficiary of its recommendations. But in both situations the attorney's economic welfare is dependent to a considerable extent on the good will of the union, and if the temptation to sacrifice the client's best interests is stronger in the present situation, it is stronger to a virtually imperceptible degree. In both cases, there was absolutely no indication that the theoretically imaginable divergence between the interests of union and member ever actually arose in the context of a particular lawsuit; indeed in the present case the Illinois Supreme Court itself described the possibility of conflicting interests as, at most, 'conceivabl(e).'
10
It has been suggested that the Union could achieve its goals by referring members to a specific lawyer or lawyers and then reimbursing the members out of a common fund for legal fees paid. Although a committee of the American Bar Association, in an informal opinion, may have approved such an arrangement,6 we think the view of the Illinois Supreme Court is more relevant on this point. In the present case itself the Illinois court stressed that where a union recommends attorneys to its members, 'any 'financial connection of any kind" between the union and such attorneys is illegal.7 It cannot seriously be argued, therefore, that this alternative arrangement would be held proper under the laws of Illinois.
11
The decree at issue here thus substantially impairs the associational rights of the Mine Workers and is not needed to protect the State's interest in high standards of legal ethics. In the many years the program has been in operation, there has come to light, so far as we are aware, not one single instance of abuse, of harm to clients, of any actual disadvantage to the public or to the profession, resulting from the mere fact of the financial connection between the Union and the attorney who represents its members. Since the operative portion of the decree prohibits any financial connection between the attorney and the Union, the decree cannot stand; and to the extent any other part of the decree forbids this arrangement it too must fall.
12
The judgment and decree are vacated and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered.
13
Judgment and decree vacated and case remanded.
14
Mr. Justice STEWART concurs in the result upon the sole ground that the disposition of this case is controlled by Brotherhood of Railroad Trainmen v. Virginia State Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89.
15
Mr. Justice HARLAN, dissenting.
16
This decision cuts deeply into one of the most traditional of state concerns, the maintenance of high standards within the state legal profession. I find myself unable to subscribe to it.
17
The Canons of Professional Ethics of the Illinois State Bar Association forbid the unauthorized practice of law by any lay agency.1 The Illinois Supreme Court, acting in light of these canons and in exercise of its common-law power of supervision over the Bar,2 prohibited the United Mine Workers of America, District 12, from employing a salaried lawyer to represent its members in workmen's compensation actions before the Illinois Industrial Commission. I do not believe that this regulation of the legal profession infringes upon the rights of speech, petition, or assembly of the Union's members, assured by the Fourteenth Amendment.
I.
18
As I stated at greater length in my dissenting opinion in NAACP v. Button, 371 U.S. 415, 448, 452—455, 83 S.Ct. 328, 345, 347, 349, 9 L.Ed.2d 405, the freedom of expression guaranteed against state interference by the Fourteenth Amendment includes the liberty of individuals not only to speak but also to unite to make their speech effective. The latter right encompasses the right to join together to obtain judicial redress. However, litigation is more than speech; it is conduct. And the States may reasonably regulate conduct even though it is related to expression. The pivotal point is how these competing interests should be resolved in this instance.
19
My brethren are apparently in accord. The majority begins by noting that this activity of the Union is related to expression and therefore is of a type which may be sheltered from state regulation by the Constitution. But the majority's inquiry does not stop there; it goes on to examine the state concerns and concludes that the decree 'is not needed to protect the State's interest in high standards of legal ethics.' See ante, at 357.3 I agree, of course, with this 'balancing' approach. See, e.g., NAACP v. Button, supra, 371 U.S. at 452—455, 83 S.Ct. at 347—349 (dissenting opinion); Konigsberg v. California Bar, 366 U.S. 36, 49—51, 81 S.Ct. 997, 1005—1007, 6 L.Ed.2d 105; Talley v. State of California, 362 U.S. 60, 66, 80 S.Ct. 536, 539, 4 L.Ed.2d 559 (concurring opinion). Indeed, I cannot conceive of any other sound method of attacking this type of problem. For if an 'absolute' approach were adopted, as some members of this Court have from time to time insisted should be so with 'First Amendment' cases,4 and the state interest in regulation given no weight, there would be no apparent reason why, for example, a group might not employ a layman to represent its members in court or before an agency because it felt that his low fee made up for his deficiencies in legal knowledge. Cf. Hackin v. Arizona, 389 U.S. 143, 88 S.Ct. 325, 19 L.Ed.2d 347 (Douglas, J., dissenting).
II.
20
Although I agree with the balancing approach employed by the majority, I find the scales tip differently. I believe that the majority has weighed the competing interests badly, according too much force to the claims of the Union and too little to those of the public interest at stake. As indicated previously, the interest of the Union stems from its members' constitutionally protected right to seek redress in the courts or, as here, before an agency. By the plan at issue, the Union has sought to make it easier for members to obtain benefits under the Illinois Workmen's Compensation Act.5 The plan is evidently designed to help injured union members in three ways: (1) by assuring that they will have knowledge of and access to an attorney capable of handling their claims; (2) by guaranteeing that they will not be charged excessive legal fees; and (3) by protecting them from crippling, even though reasonable, fees by making legal costs payable collectively through union dues. These are legitimate and laudable goals. However, the union plan is by no means necessary for their achievement. They all may be realized by methods which are proper under the laws of Illinois.
21
The Illinois Supreme Court in this case repeated its statement in a prior case that a union may properly make known to its members the names of attorneys it deems capable of handling particular types of claims.6 Such union notification would serve to assure union members of access to competent lawyers.
22
As regards the protection of union members against the charging of unreasonable fees, a fully efficient safeguard would seem to be found in the Illinois Workmen's Compensation Act itself. An amendment to the Act in 1915, shortly after its initial passage,7 provided that the Industrial Commission.
23
'shall have the power to determine the reasonableness and fix the amount of any fee or compensation charged by any person for any service performed in connection with this Act, or for which payment is to be made under this Act or rendered in securing any right under this Act.'8
24
In 1927, the words 'including attorneys, physicians, surgeons and hospitals' were added following the phrase 'or compensation charged by any person.'9 Thus, there would now appear to be no reasonable grounds for fearing that union members will be subjected to excessive legal fees.
25
The final interest sought to be promoted by the present plan is in the collective payment of legal fees. That objective could presumably be realized by imposing assessments on union members for the establishment of a fund out of which injured members would be reimbursed for their legal expenses.10 There is no reason to believe that this arrangement would be improper under Illinois law, since the union's obligation would run only to the member and there would be no financial connection between union and attorney.
26
The regulatory interest of the State in this instance is found in the potential for abuse inherent in the union plan. The plan operates as follows. The Union employs a licensed lawyer on a salary basis11 to represent members and their dependents in connection with their claims under the Workmen's Compensation Act. Members are told that they may employ other attorneys if they wish. The attorney is selected by the Executive Board of District 12, and the terms of employment specify that the attorney's sole obligation is to the person represented and that there will be no interference by the Union. Injured union members are furnished by the Union with a form which advises them to send the form to the Union's legal department. Upon receipt of the form, the attorney assumes it to constitute a request that he file on behalf of the injured member a claim with the Industrial Commission, though no such explicit request is contained in the form. The application for compensation is prepared by secretaries in the union offices, and when complete it is sent directly to the Industrial Commission. In most instances, the attorney has neither seen nor talked with the union member at this stage, though the attorney is available for consultation at specified times. After the filing of the claim and prior to the hearing before the Commission, the attorney prepares for its presentation by resorting to his file and to the application, usually without conferring with the injured member. Ordinarily the member and this attorney first meet at the time of the hearing before the Commission.
27
The attorney determines what he thinks the claim to be worth and attempts to settle with the employer's attorney during prehearing negotiations. If agreement is reached, the attorney recommends to the injured member that he accept the result. If no settlement occurs, a hearing on the merits is held before the Industrial Commission. The full amount of the settlement or award is paid to the injured member. The attorney retains for himself no part of the amount received, his sole compensation being his annual salary paid by the Union.
28
This union plan contains features which, in my opinion, Illinois may reasonably consider to present the danger of lowering the quality of representation furnished by the attorney to union members in the handling of their claims. The union lawyer has little contact with his client. He processes the applications of injured members on a mass basis. Evidently, he negotiates with the employer's counsel about many claims at the same time. The State was entitled to conclude that, removed from ready contact with his client, insulated from interference by his actual employer, paid a salary independent of the results achieved, faced with a heavy caseload,12 and very possibly with other activities competing for his time,13 the attorney will be tempted to place undue emphasis upon quick disposition of each case. Conceivably, the desire to process forms rapidly might influence the lawyer not to check with his client regarding ambiguities or omissions in the form, or to miss facts and circumstances which face-to-face consultation with his client would have brought to light. He might be led, so the State might consider, to compromise cases for reasons unrelated to their own intrinsic merits, such as the need to 'get on' with negotiations or a promise by the employer's attorney of concessions relating to other cases. The desire for quick disposition also might cause the attorney to forgo appeals in some cases in which the amount awarded seemed unusually low.14
III.
29
Thus, there is solid support for the Illinois Supreme Court's conclusion that the union plan presents a danger of harm to the public interest in a regulated bar. The reasonableness of this result is further buttressed by the numerous prior decisions, both in Illinois and elsewhere, in which courts have prohibited the employment of salaried attorneys by groups for the benefit of their members.15
30
The majority dismisses the State's interest in regulation by pointing out that there have been no proven instances of abuse or actual disadvantage to union members resulting from the operation of the union plan. See ante, at 225. But the proper question is not whether this particular plan has in fact caused any harm.16 It is, instead, settled that in the absence of any dominant opposing interest a State may enforce prophylactic measures reasonably calculated to ward off foreseeable abuses, and that the fact that a specific activity has not yet produced any undesirable consequences will not exempt it from regulation. See, e.g., Hoopeston Canning Co. v. Cullen, 318 U.S. 313, 321—322, 63 S.Ct. 602, 607, 87 L.Ed. 777; Daniel v. Family Sec. Life Ins. Co., 336 U.S. 220, 222—225, 69 S.Ct. 550, 551—553, 93 L.Ed. 632.
31
It is also irrelevant whether we would proscribe the union plan were we sitting as state judges or state legislators. The sole issue before us is whether the Illinois Supreme Court is forbidden to do so because the plan unduly impinges upon rights guaranteed to the Union's members by the Fourteenth Amendment. Since the finding that the union plan presents dangers to the public and legal profession is not an arbitrary one, and since the limitation upon union members is so slight, in view of the permissible alternatives still open to them, I would hold that there has been no denial of constitutional rights occasioned by Illinois' prohibition of the plan.
IV.
32
This decision, which again manifests the peculiar insensitivity to the need for seeking an appropriate constitutional balance between federal and state authority that in recent years has characterized so many of the Court's decisions under the Fourteenth Amendment, puts this Court more deeply than ever in the business of supervising the practice of law in the various States. From my standpoint, what is done today is unnecessary, undesirable, and constitutionally all wrong. In the absence of demonstrated arbitrary or discriminatory regulation, state courts and legislatures should be left to govern their own Bars, free from interference by this Court.17 Nothing different accords with longstanding and unquestioned tradition and with the most elementary demands of our federal system.
33
I would affirm.
1
In addition to the portion just quoted, the court's decree enjoins the Union from:
'1. Giving legal counsel and advice
'2. Rendering legal opinions
'3. Representing its members with respect to Workmen's Compensation claims and any and all other claims which they may have under the laws and statutes of the State of Illinois
'4. (Quoted above)
'5. Practicing law in any form either directly or indirectly.'
It is conceded that the Union's employment of an attorney was the basis for these other provisions of the injunction, and it was not claimed that the Union was otherwise engaged in the practice of law. Our opinion and holding is therefore limited to this one aspect of the Union's activities.
2
Ill.Rev.Stat. c. 48, § 138.1 et seq. (1963).
3
The Union's present attorney, who was the only witness on this matter, testified that the application to be filed with the Industrial Commission was dictated by him to the secretaries, who prepared this form under his direction. R. 18, 40. See also R. 58 (Union's answers to interrogatories).
4
The freedoms protected against federal encroachment by the First Amendment are entitled under the Fourteenth Amendment to the same protection from infringement by the States. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 276—277, 84 S.Ct. 710, 723—724, 11 L.Ed.2d 686 (1964), and cases there cited.
5
It is irrelevant that the litigation in Trainmen involved statutory rights created by Congress, while the litigation in the present case involved state-created rights. Our holding in Trainmen was based not on State interference with a federal program in violation of the Supremacy Clause but rather on petitioner's freedom of speech, petition, and assembly under the First and Fourteenth Amendments, and this freedom is, of course, as extensive with respect to assembly and discussion related to matters of local as to matters of federal concern.
6
American Bar Association, Standing Committee on Professional Ethics, Informal Opinion No. 469 (December 26, 1961). The ABA committee did not in fact consider the problem presented where the union not only pays the fee but also recommends the specific attorney, and it strongly implied that it would reach a different result in such a situation: 'there is nothing unethical in the situations which you describe so long as the participation of the employer, association or union is confined to payment of or reimbursement for legal expenses only.'
7
35 Ill.2d 112, 118, 219 N.E.2d 503, 506 (1966), quoting In re Brotherhood of R.R. Trainmen, 13 Ill.2d 391, 150 N.E.2d 163 (1958).
1
Canons 35, 47, Canons of Ethics of the Illinois State Bar Association. These canons are identical to the corresponding canons of the American Bar Association.
2
Even in the absence of applicable statutes, state courts have held themselves empowered to promulgate and enforce standards of professional conduct drawn from the common law and the closely related prohibitions of the Canons of Ethics. See, e.g., In re Maclub of America, Inc., 295 Mass. 45, 3 N.E.2d 272, 105 A.L.R. 1360, and cases therein cited. See generally Drinker, Legal Ethics 26—30, 35—48.
3
This weighing of the competing interests involved is the same approach as that used in NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405, and in Railroad Trainmen v. Virginia State Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89. However, since a new balance must be struck whenever the competing interests are significantly different, this decision is not controlled by those cases. The union members in this case are not asserting legal rights which stem either from the Constitution or from a federal statute, sources of origin stressed respectively in Button, see 371 U.S., at 429—431, 441—444, 83 S.Ct. at 335—337, 342—343 and in Railroad Trainmen, see 377 U.S., at 3—6, 84 S.Ct. at 1115—1116. Furthermore, the union plan at issue here differs from the referral practice involved in Railroad Trainmen because it involves the services of a union-salaried lawyer.
Similarly, the interests in this case are very different from those in cases involving legal aid to the indigent. The situation of a salaried lawyer representing indigent clients was expressly distinguished by the court below. See 35 Ill.2d 112, 121, 219 N.E.2d 503, 508.
4
See, e.g., Lathrop v. Donohue, 367 U.S. 820, 865, 871—874, 81 S.Ct. 1826, 1849, 1852—1854, 6 L.Ed.2d 1191 (dissenting opinion); Konigsberg v. California Bar, 366 U.S. 36, 56, 60—71, 81 S.Ct. 997, 1009, 1011—1017, 6 L.Ed.2d 105 (dissenting opinion).
5
Ill.Rev.Stat. c. 48, § 138.1 et seq. (1963).
6
See 35 Ill.2d, at 118—119, 219 N.E.2d, at 506-507. The earlier Illinois decision referred to was In re Brotherhood of R. R. Trainmen, 13 Ill.2d 391, 150 N.E.2d 163.
7
It may be significant that the union plan was instituted in 1913, prior to this amendment of the Act. See ante, at 219.
8
Ill.Laws, 1915, p. 408.
9
Ill.Laws, 1927, p. 511.
10
Cf. American Bar Association, Committee on Professional Ethics, Informal Opinion No. 469 (December 26, 1961) (union may reimburse member client for legal expenses).
11
The salary paid at the time of this action was $12,400 per annum.
12
The attorney employed by the Union in this case handled more than 400 workmen's compensation claims a year.
13
The attorney employed by the Mine Workers was also an Illinois state senator and had a private practice other than the Mine Workers' representation.
14
Of 351 workmen's compensation cases, from all sources, which were appealed to the Illinois courts during the period 1936 1967, only one was appealed by a miner affiliated with District 12. No such miner has appealed since 1942. See Respondents' Brief, at 17—18.
15
See, e.g., People ex rel. Courtney v. Association of Real Estate Tax-payers' 354 Ill. 102, 187 N.E. 823; In re Maclub of America, Inc., 295 Mass. 45, 3 N.E.2d 272, 150 A.L.R. 1360, and cases therein cited; Richmond Assn. of Credit Men, Inc. v. Bar Assn. of Richmond, 167 Va. 327, 189 S.E. 153. The Canons of Ethics of the American Bar Association have also been interpreted as forbidding arrangements of the kind at issue here. See American Bar Association, Committee on Unauthorized Practice of the Law, Informative Opinion No. A of 1950, 36 A.B.A.J. 677.
16
It is possible that the operation of the plan did result in union members receiving a lower quality of legal representation than they otherwise would have had. For example, the Mine Workers' present attorney recovered an average of $1,160 per case, while his predecessor secured an average of $1,350, even though the permissible rates of recovery were lower during the predecessor's tenure. See Record, at 53—54, 58—60; Brief for Respondents 18. See also n. 14, supra.
17
It has been suggested both in this case and elsewhere, cf. Hackin v. Arizona, 389 U.S. 143, 88 S.Ct. 325, 19 L.Ed.2d 347 (Douglas, J., dissenting), that prevailing Canons of Ethics and traditional customs in the legal profession will have to be modified to keep pace with the needs of new social developments, such as the Federal Poverty Program. That may well be true, but such considerations furnish no justification for today's heavyhanded action by the Court. The American Bar Association and other bodies throughout the country already have such matters under consideration. See, e.g., 1964 ABA Reports 381—383 (establishment of Special Committee on Ethical Standards); 1966 ABA Reports 589—594 (Report of Special Committee on Availability of Legal Services); 39 Calif.State Bar Journal 639—742 (Report of Committee on Group Legal Services). Moreover, the complexity of these matters makes them especially suitable for experimentation at the local level. And, all else failing, the Congress undoubtedly has the power to implement federal programs by establishing overriding rules governing legal representation in connection therewith.
| 23
|
389 U.S. 329
88 S.Ct. 503
19 L.Ed.2d 559
Walter GERMANNv.UNITED STATES.
No. 384.
Supreme Court of the United States
October Term, 1967.
December 11, 1967
Louis Bender, Lloyd A. Hale, New York City, of counsel, for petitioner.
Solicitor General Griswold, Assistant Attorney General Vinson, Ralph S. Spritzer, Beatrice Rosenberg and Paul C. Summitt, for the United States.
On petition for writ of certiorari to the United States Court of Appeals for the Second Circuit.
PER CURIAM.
1
The petition for certiorari is granted.
2
The judgment of the United States Court of Appeals for the Second Circuit is vacated, and the case is remanded to the United States District Court for the Southern District of New York in order to give that court an opportunity to consider the motion to substitute the Konkursamt Basel-Stadt (the Bankruptcy Office of Basel, Switzerland) as party petitioner, and to reconsider that court's former adjudication of contempt and the accompanying fine in light of the original petitioner's death.
3
It is so ordered.
| 01
|
389 U.S. 320
88 S.Ct. 443.
19 L.Ed.2d 554
Kenneth A. BURKE et al.v.Clarence FORD and Kunc et al.
No. 632.
Decided Dec. 11, 1967.
Robert S. Rizley, for petitioners.
Irvine E. Ungerman, for respondents.
PER CURIAM.
1
Petitioners, Oklahoma liquor retailers, brought this action under § 1 of the Sherman Act, 26 Stat. 209, 15 U.S.C. § 1, to enjoin an alleged state-wide market division by all Oklahoma liquor wholesalers. The trial judge, sitting without a jury, found that there had in fact been a division of markets—both by territories and by brands. The court nevertheless entered judgment for the wholesalers because, among other reasons, it found that the interstate commerce prerequisite of the Sherman Act was not satisfied. The Court of Appeals affirmed upon the sole ground that 'the proof was entirely insufficient to show that the activities complained of were in or adversely affected interstate commerce.' 10 Cir., 377 F.2d 901, 903.
2
There are no liquor distilleries in Oklahoma. Liquor is shipped in from other States to the warehouses of the wholesalers, where it is inventoried and held until purchased by retailers. The District Court and the Court of Appeals found that the liquor 'came to rest' in the wholesalers' warehouses and that interstate commerce ceased at that point. Hence, they concluded that the wholesalers' division of the Oklahoma market did not take place 'in interstate commerce.' But whatever the validity of that conclusion, it does not end the matter. For it is well established that an activity which does not itself occur in interstate commerce comes within the scope of the Sherman Act if it substantially affects interstate commerce. United States v. Employing Plasterers Association of Chicago, 347 U.S. 186, 74 S.Ct. 452, 456, 98 L.Ed. 618; Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 333 U.S. 219, 996, 92 L.Ed. 1328.
3
Recognizing this, the District Court went on to find that the wholesalers' market division had no effect on interstate commerce, and the Court of Appeals agreed. The Court of Appeals held that proof of a state-wide wholesalers' market division in the distribution of goods retailed in substantial volume1 within the State but produced entirely out of the State was not by itself sufficient proof of an effect on interstate commerce. We disagree. Horizontal territorial divisions almost invariably reduce competition among the participants. Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136; United States v. Sealy, Inc., 388 U.S. 350, 87 S.Ct. 1847, 18 L.Ed.2d 1238. When competition is reduced, prices increase and unit sales decrease. The wholesalers' territorial division here almost surely resulted in fewer sales to retailers—hence fewer purchases from out-of-state distillers—than would have occurred had free competition prevailed among the wholesalers.2 In addition the wholesalers' division of brands meant fewer wholesale outlets available to any one out-of-state distiller. Thus the statewide wholesalers' market division inevitably affected interstate commerce.
4
The petition for certiorari is granted and the judgment of the Court of Appeals is reversed. The case is remanded to that court for further proceedings consistent with this opinion.
5
Judgment of Court of Appeals reversed and case remanded.
6
Mr. Justice HARLAN concurs in the result.
1
Between $55 and $45 million in wholesale purchases in 1964.
2
The Court of Appeals stressed the fact that unit sales to the wholesalers increased (885,976 cases to 891,176 cases) from 1963 to 1964 while the market division was in effect. But if there had been free competition among the wholesalers—all other things being equal—presumably sales to them would have increased even more.
The increase in liquor sales noted by the Court of Appeals was 0.6%; during the same period total personal income in Oklahoma increased from $4,880 million to $5,220 million, an increase of 7.0%. Table 1, Survey of Current Business, p. 30, Office of Business Economics, Department of Commerce (August 1967). Adjusting for concurrent price inflation (see Table 8.1, Survey of Current Business, p. 42 (July 1967)), the increase in real personal income was approximately 5.7%.
| 78
|
389 U.S. 327
88 S.Ct. 437
19 L.Ed.2d 560
BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN et al.v.BANGOR & AROOSTOOK RAILROAD CO. et al.
No. 353.
Dec. 11, 1967.
Joseph L. Rauh, Jr., John Silard, Harriett R. Taylor, Isaac N. Groner, Harold C. Heiss, Donald W. Bennett, Alex Elson, Willard J. Lassers and Aaron S. Wolff, for petitioners.
Francis M. Shea, Richard T. Conway, James R. Wolfe and Charles I. Hopkins, Jr., for respondents.
The order of December 4, 1967, 389 U.S. 970, 88 S.Ct. 463, denying the petition for a writ of certiorari is vacated and the following order is entered:
PER CURIAM.
1
This case is a consequence of a dispute with respect to the scope of an arbitration award governing the manning of trains and engines in freight service. The union took the position that the award had no effect after 12:01 a.m., March 31, 1966. On March 28, the District Court for the District of Columbia issued a temporary restraining order forbidding a strike. On March 31, the union struck against a number of railroads. The District Court entered contempt orders, imposing substantial fines for alleged violation of its restraining order. The Court of Appeals ruled on various legal issues presented to it but remanded to the District Court to consider whether there had in fact been a contempt, and, also, if there was a contempt, whether it was 'of such magnitude as to warrant retention, in part or to any extent, of the coercive fine originally provided for in contemplation of an outright refusal to obey.'
2
Petitioners seek certiorari to review the adverse rulings made by the Court of Appeals. However, because the Court of Appeals remanded the case, it is not yet ripe for review by this Court. The petition for a writ of certiorari is denied. See Hamilton-Brown Shoe Co. v. Wolf Brothers & Company, 240 U.S. 251, 257—258, 36 S.Ct. 269, 271, 60 L.Ed. 629 (1916).
3
Petition for writ of certiorari denied.
4
Mr. Justice BLACK would grant the petition and set the case for argument.
| 89
|
389 U.S. 323
88 S.Ct. 503
19 L.Ed.2d 557
Stephen R. EAGAR et al.v.MAGMA COPPER CO.
No. 659.
Supreme Court of the United States
October Term, 1967.
December 11, 1967
Rehearing Denied Jan. 15, 1968.
See 389 U.S. 1060, 88 S.Ct. 767.
Acting Solicitor General Spritzer, Acting Assistant Attorney General Eardley, Alan S. Rosenthal and Richard S. Salzman, for petitioners.
Howard A. Twitty, for respondent.
On petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit.
PER CURIAM.
1
The petition for a writ of certiorari is granted and the judgment is reversed. Accardi v. Pennsylvania R. Co., 383 U.S. 225, 86 S.Ct. 768, 15 L.Ed.2d 717.
2
Mr. Justice DOUGLAS, with whom Mr. Justice HARLAN and Mr. Justice STEWART, concur, dissenting.
3
Petitioner Eagar1 began working for Magma Copper Company March 12, 1958, and left to enter military service just shy of one year later, March 6, 1959. After being honorably discharged, Eagar promptly resumed his employment with Magma, May 2, 1962. He seeks vacation pay for the work year following March 12, 1958, and for the Memorial Day and Independence Day holidays in 1962, which followed his re-employment.
4
Under Magma's collective bargaining agreement with petitioners' union, paid vacations are provided at the end of a work year if the employee works 75% of the shifts available to him in that year and is employed with Magma on the one-year anniversary date. Employees who get paid holidays must have worked the shift before and the shift after the holiday and have been on Magma's payroll continuously for three months before the holiday.
5
Although Eagar had worked 75% of the shifts for the year March 12, 1958, to March 12, 1959, and had worked the shifts before and after Memorial Day and Independence Day in 1962, Magma denied him benefits. Eagar was not, Magma claims, in its employ on March 12, 1959, nor had he been on the payroll three straight months prior to Memorial and Independence days in 1962.
6
The majority hold that Magma has violated § 9(c) of the Universal Military Training and Service Act, 62 Stat. 615, as amended, 50 U.S.C.App. § 459, which provides, inter alia, that a returning serviceman such as Eagar who is re-employed 'shall be considered as having been on furlough or leave of absence during his period of training and service in the armed forces, shall be so restored without loss of seniority, [and] shall be entitled to participate in insurance or other benefits offered by the employer pursuant to establish rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was inducted into such forces * * *.'2 (Italics added.)
7
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
8
Section 9(c) speaks both of 'seniority' and of 'insurance or other benefits.' In dealing with seniority problems under a like statutory provision, we held that the employee is to be treated as if he had kept his position continuously during his stint in the Army. Accardi v. Pennsylvania R. Co., 383 U.S. 225, 228, 86 S.Ct. 768, 15 L.Ed.2d 717; Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 284-285, 66 S.Ct. 1105, 90 L.Ed. 1230.
9
But this case does not concern 'seniority.' No employee of Magma, it appears, regardless of how long he has been with the firm, gets paid vacation if he is not on the payroll on his work-year anniversary date. No employee gets a paid holiday unless he has been with Magma for the three preceding months. The length of vacation and the amount of vacation and holiday pay Magma gives do turn on seniority. But petitioners do not contest Magma's assertion that it does figure the length of vacation for returning servicemen as though they had been constantly on the payroll during their tour of duty in the military. In considering the employee's eligibility for vacation and holiday pay, since seniority is not involved, the courts must apply the 'other benefits' clause of § 9(c). See Borges v. Art Steel Co., 246 F.2d 735, 738 (2d Cir.). As noted, these benefits are accorded as if the employee were on 'furlough or leave of absence' while in service. That is precisely what Magma has done.
10
Accardi admonishes the courts to give the term 'seniority' a broad interpretation, 383 U.S., at 229, 86 S.Ct. 768, 15 L.Ed.2d 717. But Accardi did not involve the 'other benefits' clause, which must be applicable in this clear fringebenefits case if at all.3 As Judge Learned Hand said, '[O]bviously the considerations which might make it proper that service in the Army should not affect a man's seniority are utterly different from those which should count in computing vacations.' Dwyer v. Crosby Co., 167 F.2d 567, 570 (2d Cir.). I would affirm the judgment below.
1
There are three other employees of respondent Magma Copper in addition to Eagar on whose behalf the Department of Justice has sought review. The Solicitor General and respondent agree that the facts in Eagar's case are representative of the other petitioners' cases, and this Court is asked to resolve the legal dispute on the basis of these facts.
2
Section 9(c) also provides:
'It is declared to be the sense of the Congress that any person who is restored to a position in accordance with * * * this section should be so restored in such manner as to give him such status in his employment as he would have enjoyed if he had continued in such employment continuously from the time of his entering the armed forces until the time of his restoration to such employment.'
3
The 'sense of Congress' proviso in § 9(c) does not indicate a different result. The language was added in 1948 when the 'seniority' and 'other benefits' provisions were re-enacted upon the expiration of § 8 of the Selective Training and Service Act of 1940, 54 Stat. 890. The 'sense of Congress' is concerned with employee 'status,' see n. 2, supra. But if 'status' were meant to include eligibility for fringe benefits, Congress would not have left unchanged the explicit provision that 'other benefits' are to be dispensed as if the returning serviceman had been on leave of absence.
| 12
|
389 U.S. 258
88 S.Ct. 419
19 L.Ed.2d 508
UNITED STATES, Appellant,v.Eugene Frank ROBEL.
No. 8.
Reargued Oct. 9, 1967.
Decided Dec. 11, 1967.
Kevin T. Maroney, Washington, D.C., for appellant.
John J. Abt, New York City, for appellee.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
This appeal draws into question the constitutionality of § 5(a)(1)(D) of the Subversive Activities Control Act of 1950, 64 Stat. 992, 50 U.S.C. § 784(a) (1) (D),1 which provides that, when a Communist-action organization2 is under a final order to register, it shall be unlawful for any member of the organization 'to engage in any employment in any defense facility.' In Communist Party of U.S. v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961), this Court sustained an order of the SACB requiring the Communist Party of the United States to register as a Communist-action organization under the Act. The Board's order became final on October 20, 1961. At that time appellee, a member of the Communist Party, was employed as a machinist at the Seattle, Washington, shipyard of Todd Shipyards Corporation. On August 20, 1962, the Secretary of Defense, acting under authority delegated by § 5(b) of the Act, designated that shipyard a 'defense facility.' Appellee's continued employment at the shipyard after that date subjected him to prosecution under § 5(a)(1)(D), and on May 21, 1963, an indictment was filed charging him with a violation of that section. The indictment alleged in substance that appellee had 'unlawfully and willfully engage(d) in employment' at the shipyard with knowledge of the outstanding order against the Party and with knowledge and notice of the shipyard's designation as a defense facility by the Secretary of Defense. The United States District Court for the Western District of Washington granted appellee's motion to dismiss the indictment on October 4, 1965. To overcome what it viewed as a 'likely constitutional infirmity' in § 5(a)(1)(D), the District Court read into that section 'the requirements of active membership and specific intent.' Because the indictment failed to allege that appellee's Communist Party membership was of that quality, the indictment was dismissed. The Government, unwilling to accept that narrow construction of § 5(a)(1)(D) and insisting on the broadest possible application of the statute,3 initially took its appeal to the Court of Appeals for the Ninth Circuit. On the Government's motion, the case was certified here as properly a direct appeal to this Court under 18 U.S.C. § 3731. We noted probable jurisdiction. 384 U.S. 937, 86 S.Ct. 1458, 16 L.Ed.2d 537.4 We affirm the judgment of the District Court, but on the ground that § 5(a)(1)(D) is an unconstitutional abridgment of the right of association protected by the First Amendment.5
2
We cannot agree with the District Court that § 5(a)(1)(D) can be saved from constitutional infirmity by limiting its application to active members of Communist-action organizations who have the specific intent of furthering the unlawful goals of such organizations. The District Court relied on Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961), in placing its limiting construction on § 5(a)(1)(D). It is true that in Scales we read the elements of active membership and specific intent into the membership clause of the Smith Act.6 However, in Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964), we noted that the Smith Act's membership clause required a defendant to have knowledge of the organization's illegal advocacy, a requirement that 'was intimately connected with the construction limiting membership to 'active' members.' Id., at 511, n. 9, 84 S.Ct. at 1666. Aptheker involved a challenge to § 6 of the Subversive Activities Control Act, 50 U.S.C. § 785, which provides that, when a Communist organization is registered or under a final order to register, it shall be unlawful for any member thereof with knowledge or notice thereof to apply for a passport. We held that '(t)he clarity and preciseness of the provision in question make it impossible to narrow its indiscriminately cast and overly broad scope without substantial rewriting.' Id., at 515, 84 S.Ct., at 1669. We take the same view of § 5(a)(1)(D). It is precisely because that statute sweeps indiscriminately across all types of association with Communist-action groups, without regard to the quality and degree of membership, that it runs afoul of the First Amendment.
3
In Aptheker, we held § 6 unconstitutional because it too broadly and indiscriminately infringed upon constitutionally protected rights. The Government has argued that, despite the overbreadth which is obvious on the face of § 5(a)(1)(D), Aptheker is not controlling in this case because the right to travel is a more basic freedom than the right to be employed in a defense facility. We agree that Aptheker is not controlling since it was decided under the Fifth Amendment. But we cannot agree with the Government's characterization of the essential issue in this case. It is true that the specific disability imposed by § 5(a)(1)(D) is to limit the employment opportunities of those who fall within its coverage, and such a limitation is not without serious constitutional implications. See Greene v. McElroy, 360 U.S. 474, 492, 79 S.Ct. 1400, 1411, 3 L.Ed.2d 1377 (1959). But the operative fact upon which the job disability depends is the exercise of an individual's right of association, which is protected by the provisions of the First Amendment.7 Whereever one would place the right to travel on a scale of constitutional values, it is clear that those rights protected by the First Amendment are no less basic in our democratic scheme.
4
The Government seeks to defend the statute on the ground that it was passed pursuant to Congress' war power. The Government argues that this Court has given broad deference to the exercise of that constitutional power by the national legislature. That argument finds support in a number of decisions of this Court.8 However, the phrase 'war power' cannot be invoked as a talismanic incantation to support any exercise of congressional power which can be brought within its ambit. '(E)ven the war power does not remove constitutional limitations safeguarding essential liberties.' Home Bldg. & Loan Assn. v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 235, 78 L.Ed. 413 (1934). More specifically in this case, the Government asserts that § 5(a)(1) (D) is an expression 'of the growing concern shown by the executive and legislative branches of government over the risks of internal subversion in plants on which the national defense depend(s).'9 Yet, this concept of 'national defense' cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. Implicit in the term 'national defense' is the notion of defending those values and ideals which set this Nation apart. For almost two centuries, our country has taken singular pride in the democratic ideals enshrined in its Constitution, and the most cherished of those ideals have found expression in the First Amendment. It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties—the freedom of association—which makes the defense of the Nation worthwhile.
5
When Congress' exercise of one of its enumerated powers clashes with those individual liberties protected by the Bill of Rights, it is our 'delicate and difficult task' to determine whether the resulting restriction on freedom can be tolerated. See Schneider v. State of New Jersey, 308 U.S. 147, 161, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939). The Government emphasizes that the purpose of § 5(a)(1)(D) is to reduce the threat of sabotage and espionage in the Nation's defense plants. The Government's interest in such a prophylactic measure is not insubstantial. But it cannot be doubted that the means chosen to implement that governmental purpose in this instance cut deeply into the right of association. Section 5(a)(1)(D) put appellee to the choice of surrendering his organizational affiliation, regardless of whether his membership threatenened the security of a defense facility,10 or giving up his job.11 When appellee refused to make that choice, he became subject to a possible criminal penalty of five years' imprisonment and a $10,000 fine.12 The statute quite literally establishes guilt by association alone, without any need to establish that an individual's association poses the threat feared by the Government in proscribing it.13 The inhibiting effect on the exercise of First Amendment rights is clear.
6
It has become axiomatic that '(p)recision of regulation must be the touchstone in an area so closely touching our most precious freedoms.' NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963); see Aptheker v. Secretary of State, 378 U.S. 500, 512—513, 84 S.Ct. 1659, 1667, 12 L.Ed.2d 992; Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960). Such precision is notably lacking in § 5(a)(1)(D). That statute casts its net across a broad range of associational activities, indiscriminately trapping membership which can be constitutionally punished14 and membership which cannot be so proscribed.15 It is made irrelevant to the statute's operation that an individual may be a passive or inactive member of a designated organization, that he may be unaware of the organization's unlawful airms, or that he may disagree with those unlawful aims.16 It is also made irrelevant that an individual who is subject to the penalties of § 5(a)(1)(D) may occupy a nonsensitive position in a defense facility.17 Thus, § 5(a) (1)(D) contains the fatal defect of overbreadth because it seeks to bar employment both for association which may be proscribed and for association which may not be proscribed consistently with First Amendment rights. See Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321; Aptheker v. Secretary of State, supra; NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964); NAACP v. Button, supra. This the Constitution will not tolerate.
7
We are not unmindful of the congressional concern over the danger of sabotage and espionage in national defense industries, and nothing we hold today should be read to deny Congress the power under narrowly drawn legislation to keep from sensitive positions in defense facilities those who would use their positions to disrupt the Nation's production facilities. We have recognized that, while the Constitution protects against invasions of individual rights, it does not withdraw from the Government the power to safeguard its vital interests. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160, 83 S.Ct. 554, 563, 9 L.Ed.2d 644 (1963). Spies and saboteurs do exist, and Congress can, of course, prescribe criminal penalties for those who engage in espionage and sabotage.18 The government can deny access to its secrets to those who would use such information to harm the Nation.19 And Congress can declare sensitive positions in national defense industries off limits to those who would use such positions to disrupt the production of defense materials. The Government has told us that Congress, in passing § 5(a)(1)(D), made a considered judgment that one possible alternative to that statute—an industrial security screening program—would be inadequate and ineffective to protect against sabotage in defense facilities. It is not our function to examine the validity of that congressional judgment. Neither is it our function to determine whether an industrial security screening program exhausts the possible alternatives to the statute under review. We are concerned solely with determining whether the statute before us has exceeded the bounds imposed by the Constitution when First Amendment rights are at stake. The task of writing legislation which will stay within those bounds has been committed to Congress. Our decision today simply recognizes that, when legitimate legislative concerns are expressed in a statute which imposes a substantial burden on protected First Amendment activities, Congress must achieve its goal by means which have a 'less drastic' impact on the continued vitality of First Amendment freedoms.20 Shelton v. Tucker, supra; cf. United States v. Brown, 381 U.S. 437, 461, 85 S.Ct. 1707, 1721, 14 L.Ed.2d 484 (1965). The Constitution and the basic position of First Amendment rights in our democratic fabric demand nothing less.
8
Affirmed.
9
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
10
Mr. Justice BRENNAN, concurring in the result.
11
I too agree that the judgment of the District Court should be affirmed but I reach that result for different reasons.
12
Like the Court, I disagree with the District Court that § 5(a)(1)(D) can be read to apply only to active members who have the specific intent to further the Party's unlawful objectives. In Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992, we rejected that reading of § 6 of the Act which provides that, when a Communist organization is registered or under final order to register, it shall be unlawful for any member thereof with knowledge or notice of the order to apply for or use a passpart. We held that '(t)he clarity and preciseness of the provision in question make it impossible to narrow its indiscriminately cast and overly broad scope without substantial rewriting.' 378 U.S., at 515, 84 S.Ct., at 1669. I take the same view of § 5(a)(1)(D).
13
Aptheker held § 6 of the Act overbroad in that it deprived Party members of the right to travel without regard to whether they were active members of the Party or intended to further the Party's unlawful objectives, and therefore invalidly abridged, on the basis of political associations, the members' constitutionally protected right to travel. Section 5(a)(1)(D) also treats as irrelevant whether or not the members are active, or know the Party's unlawful purposes, or intend to pursue those purposes. Compare Keyishian v. Board of Regents of University of State of N.Y., 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629; Elfbrandt v. Russell, 384 U.S. 11, 17, 86 S.Ct. 1238, 1241, 16 L.Ed.2d 321; Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782; Schneiderman v. United States, 320 U.S. 118, 136, 63 S.Ct. 1333, 1342, 87 L.Ed. 1796. Indeed, a member such as appellee, who has worked at the Todd Shipyards without complaint or known ground for suspicion for over 10 years, is afforded no opportunity to prove that the statute's presumption that he is a security risk is invalid as applied to him. And no importance whatever is attached to the sensitivity of the jobs held by Party members, a factor long considered relevant in security cases.1 Furthermore, like § 6, § 5(a)(1)(D) affects constitutionally protected rights. '(T)he right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within the 'liberty' and 'property' concepts of the Fifth Amendment * * *.' Greene v. McElroy, 360 U.S. 474, 492, 79 S.Ct. 1400, 1411, 3 L.Ed.2d 1377. That right is therefore also included among the '(i)ndividual liberties fundamental to American institutions (which) are not to be destroyed under pretext of preserving those institutions, even from the gravest external dangers.' Communist Party of U.S. v. Subversive Activities Control Board, 367 U.S. 1, 96, 81 S.Ct. 1357, 1410, 6 L.Ed.2d 625. Since employment opportunities are denied by § 5(a)(1)(D) simply on the basis of political associations the statute also has the potential of curtailing free expression by inhibiting persons from establishing or retaining such associations. See Wieman v. Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 218, 97 L.Ed. 216. 'Broad prophylactic rules in the area of free expression are suspect. * * * Precision of regulation must be the touchstone in * * * area(s) so closely touching our most precious freedoms.' NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405; see Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231; Cantwell v. State of Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 903, 84 L.Ed. 1213.
14
It is true, however, as the Government points out, that Congress often regulates indiscriminately, through preventive or prophylactic measures, e.g., Board of Governors of Federal Reserve System v. Agnew, 329 U.S. 441, 67 S.Ct. 411, 91 L.Ed. 408; North American Co. v. SEC, 327 U.S. 686, 66 S.Ct. 785, 90 L.Ed. 945, and that such regulation has been upheld even where fundamental freedoms are potentially affected, Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774; Cafeteria and Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230; Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547. Each regulation must be examined in terms of its potential impact upon fundamental rights, the importance of the end sought and the necessity for the means adopted. The Government argues that § 5(a)(1)(D) may be distinguished from § 6 on the basis of these factors. Section 5(a)(1)(D) limits employment only in 'any defense facility,' while § 6 deprived every Party member of the right to apply for or to hold a passport. If § 5(a)(1)(D) were in fact narrowly applied, the restrictions it would place upon employment are not as great as those placed upon the right to travel by § 6.2 The problems presented by the employment of Party members at defense facilities, moreover, may well involve greater hazards to national security than those created by allowing Party members to travel abroad. We may assume, too, that Congress may have been justified in its conclusion that alternatives to § 5(a)(1)(D) were inadequate.3 For these reasons, I am not persuaded to the Court's view that overbreadth is fatal to this statute, as I agreed it was in other contexts; see, e.g., Keyishian v. Board of Regents of University of State of N.Y., 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629; Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321; Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992; NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405.
15
However, acceptance of the validity of these distinctions and recognition of congressional power to utilize a prophylactic device such as § 5(a)(1)(D) to safeguard against espionage and sabotage at essential defense facilities, would not end inquiry in this case. Even if the statute is not overbroad on its face because there may be 'defense facilities' so essential to our national security that Congress could constitutionally exclude all Party members from employment in them—the congressional delegation of authority to the Secretary of Defense to designate 'defense facilities' creates the danger of overbroad, unauthorized, and arbitrary application of criminal sanctions in an area of protected freedoms and therefore, in my view, renders this statute invalid. Because the statute contains no meaningful standard by which the Secretary is to govern his designations, and no procedures to contest or review his designations, the 'defense facility' formulation is constitutionally insufficient to mark 'the field within which the (Secretary) is to act so that it may be known whether he has kept within it in compliance with the legislative will.' Yakus v. United States, 321 U.S. 414, 425, 64 S.Ct. 660, 668, 88 L.Ed. 834.
16
The Secretary's role in designating 'defense facilities' is fundamental to the potential breadth of the statute since the greater the number and types of facilities designated, the greater is the indiscriminate denial of job opportunities, under threat of criminal punishment, to Party members because of their political associations. A clear, manageable standard might have been a significant limitation upon the Secretary's discretion. But the standard under which Congress delegated the designating power is so indefinite as to be meaningless. The statute defines 'facility' broadly enough to include virtually every place of employment in the United States; the term includes 'any plant, factory or other manufacturing, producing or service establishment, airport, airport facility, vessel, pier, water-front facility, mine, railroad, public utility, laboratory, station, or other establishment or facility, or any part, division, or department of any of the foregoing.' 50 U.S.C. § 782(7). And § 5(b) grants the Secretary of Defense untrammelled discretion to designate as a 'defense facility' any facility 'with respect to the operation of which he finds and determines that the security of the United States requires * * *' that Party members should not be employed there. Congress could easily have been more specific.4 Instead, Congress left the Secretary completely at large in determining the relevance and weight to be accorded such factors as the importance and secrecy of the facility and of the work being done there, and the indispensability of the facility's service or product to the national security.
17
Congress ordinarily may delegate power under broad standards. E.g., Dakota Central Tel. Co. v. State of South Dakota ex rel. Payne, 250 U.S. 163, 183, 39 S.Ct. 507, 509, 63 L.Ed. 910; FPC v. Hope Natural Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333; NBC v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344. No other general rule would be feasible or desirable. Delegation of power under general directives is an inevitable consequence of our complex society, with its myriad, ever changing, highly technical problems. 'The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality * * * to perform its function * * *.' Panama Refining Co. v. Ryan, 293 U.S. 388, 421, 55 S.Ct. 241, 248, 79 L.Ed. 446; Currin v. Wallace, 306 U.S. 1, 15, 59 S.Ct. 379, 83 L.Ed. 441. It is generally enough that, in conferring power upon an appropriate authority, Congress indicates its general policy, and act in terms or within a context which limits the power conferred. See, e.g., State of Arizona v. State of California, 373 U.S. 546, 584—585, 83 S.Ct. 1468, 1489 1490, 10 L.Ed.2d 542; FCC v. RCA Communications, Inc., 346 U.S. 86, 73 S.Ct. 998, 97 L.Ed. 1470; Lichter v. United States, 334 U.S. 742, 68 S.Ct. 1294, 92 L.Ed. 1694; Yakus v. United States, supra, 321 U.S., at 424, 64 S.Ct. at 667, 88 L.Ed. 834; Bandini Petroleum Co. v. Superior Court, 284 U.S. 8, 52 S.Ct. 103, 76 L.Ed. 136; FTC v. Gratz, 253 U.S. 421, 40 S.Ct. 572, 64 L.Ed. 993; Buttfield v. Stranahan, 192 U.S. 470, 24 S.Ct. 349, 48 L.Ed. 525. Given such a situation, it is possible for affected persons, within the procedural structure usually established for the purpose, to be heard by the implementing agency and to secure meaningful review of its action in the courts, and for Congress itself to review its agent's action to correct significant departures from Congress' intention.
18
The area of permissible indefiniteness narrows, however, when the regulation invokes criminal sanctions and potentially affects fundamental rights, as does § 5(a)(1)(D). See Barenblatt v. United States, 360 U.S. 109, 140, n. 7, 79 S.Ct. 1081, 1100, 3 L.Ed.2d 1115 (Black, J., dissenting). This is because the numerous deficiencies connected with vague legislative directives whether to a legislative committee, United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770; to an executive officer, Panama Refining Co. v. Ryan, 93 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446; to a judge and jury, Cline v. Frink Dairy Co., 274 U.S. 445, 465, 47 S.Ct. 681, 687, 71 L.Ed. 1146; or to private persons, Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584; see Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570; are far more serious when liberty and the exercise of fundamental rights are at stake. See also Gojack v. United States, 384 U.S. 702, 86 S.Ct. 1689, 16 L.Ed.2d 870; Kunz v. People of State of New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280; Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840; Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066.
19
First. The failure to provide adequate standards in § 5(a)(1)(D) reflects Congress' failure to have made a 'legislative judgment.' Cantwell v. State of Connecticut, 310 U.S., at 307, 60 S.Ct., at 904, 84 L.Ed. 1213, on the extent to which the prophylactic measure should be applied. Formulation of policy is a legislature's primary responsibility, entrusted to it by the electorate, and to the extent Congress delegates authority under indefinite standards, this policy-making function is passed on to other agencies, often not answerable or responsive in the same degree to the people. '(S)tandards of permissible statutory vagueness are strict * * *' in protected areas. NAACP v. Button, 371 U.S., at 432, 83 S.Ct., at 337, 9 L.Ed.2d 405. 'Without explicit action by law-makers, decisions of great constitutional import and effect would be relegated by default to administrators who, under our system of government are not endowed with authority to decide them.' Greene v. McElroy, 360 U.S. 474, 507, 79 S.Ct. 1400, 1419, 3 L.Ed.2d 1377.
20
Congress has the resources and the power to inform itself, and is the appropriate forum where the conflicting pros and cons should have been presented and considered. But instead of a determination by Congress reflected in guiding standards of the types of facilities to which § 5(a)(1)(D) should be applied, the statute provides for a resolution by the Secretary of Defense acting on his own accord. It is true that the Secretary presumably has at his disposal the information and expertise necessary to make reasoned judgments on which facilities are important to national security. But that is not the question to be resolved under this statute. Compare Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423. Rather, the Secretary is in effect determining which facilities are so important to the national security that Party members, active or inactive, well- or ill-intentioned, should be prohibited from working within them in any capacity, sensitive or innocuous, under threat of criminal prosecution. In resolving this conflict of interests, the Secretary's judgment, colored by his overriding obligation to protect the national defense, is not a constitutionally acceptable substitute for Congress' judgment, in the absence of further, limiting guidance.5
21
The need for a legislative judgment is especially acute here, since it is imperative when liberty and the exercise of fundamental freedoms are involved that constitutional rights not be unduly infringed. Cantwell v. State of Connecticut, supra, 310 U.S., at 304, 60 S.Ct., at 903. Before we can decide whether it is an undue infringement of protected rights to send a person to prison for holding employment at a certain type of facility, it ought at least to appear that Congress authorized the proscription as warranted and necessary. Such congressional determinations will not be assumed. 'They must be made explicitly not only to assure that individuals are not deprived of cherished rights under procedures not actually authorized * * * but also because explicit action, especially in areas of doubtful constitutionality, requires careful and purposeful consideration by those responsible for enacting and implementing our laws.' Greene v. McElroy, supra, 360 U.S., at 507, 79 S.Ct., at 1419.
22
Second. We said in Watkins v. United States, 354 U.S. 178, 205, 77 S.Ct. 1173, 1188, 1 L.Ed.2d 1273, that Congress must take steps to assure 'respect for constitutional liberties' by preventing the existence of 'a wide gulf between the responsibility for the use of * * * power and the actual exercise of that power.' Procedural protections to avoid that gulf have been recognized as essential when fundamental freedoms are regulated, Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460; Marcus v. Search Warrants of Property, etc., 367 U.S. 717, 730, 81 S.Ct. 1708, 1715, 6 L.Ed.2d 1127; A Quantity of Copies of Books v. State of Kansas, 378 U.S. 205, 213, 84 S.Ct. 1723, 1727, 12 L.Ed.2d 809; even when Congress acts pursuant to its 'great powers,' Kennedy v. Mendoza-Martinez, 372 U.S. 144, 164, 83 S.Ct. 554, 565, 9 L.Ed.2d 644. Without procedural safeguards, regulatory schemes will tend through their indiscriminate application to inhibit the activity involved. See Marcus v. Search Warrants of Properties, etc., supra, 367 U.S., at 734—735, 81 S.Ct., at 1717—1718.
23
It is true that '(a) construction of the statute which would deny all opportunity for judicial determination of an asserted constitutional right is not to be favored.' Lockerty v. Phillips, 319 U.S. 182, 188, 63 S.Ct. 1019, 1023, 87 L.Ed. 1339. However, the text and history of this section compel the conclusion that Congress deliberately chose not to provide for protest either to the Secretary or the courts from any designation by the Secretary of a facility as a 'defense facility.' The absence of any provision in this regard contrasts strongly with the care that Congress took to provide for the determination by the SACB that the Party is a Communist-action organization, and for judicial review of that determination. The Act 'requires the registration only of organizations which * * * are found to be under the direction, domination, or control of certain foreign powers and to operate primarily to advance certain objectives. This finding must be made after full administrative hearing, subject to judicial review which opens the record for the reviewing court's determination whether the administrative findings as to fact are supported by the preponderance of the evidence.' Communist Party of U.S. v. Subversive Activities Control Board, supra, 367 U.S., at 86—87, 81 S.Ct., at 1405, 6 L.Ed.2d 625. In contrast, the Act nowhere provides for an administrative hearing on the Secretary's designation, either public or private, nor is his finding subject to review. A Party member charged with notice of the designation must quit the Party or his job; he cannot contest the Secretary's action on trial if he retains both and is prosecuted.6
24
This is persuasive evidence that the matter of the designation of 'defense facilities' was purposely committed by Congress entirely to the discretionary judgment of the Secretary. Unlike the opportunities for hearing and judicial review afforded the Party itself, the Party member was not to be heard by the Secretary to protest the designation of his place of employment as a 'defense facility,' nor was the member to have recourse to the courts. This pointed distinction, as in the case of the statute befor the Court in Schilling v. Rogers, 363 U.S. 666, 674, 80 S.Ct. 1288, 1294, 4 L.Ed.2d 1478, is compelling evidence 'that in this Act Congress was advertent to the role of courts, and an absence in any specific area of any kind of provision for judicial participation strongly indicates a legislative purpose that there be no such participation.' This clear indication of the congressional plan, coupled with a flexibility—as regards the boundaries of the Secretary's discretion—so unguided as to be entirely unguiding, must also mean that Congress contemplated that an affected Party member was not to be heard to contend even at his criminal trial that the Secretary acted beyond the scope of his powers, or that the designation of the particular facility was arbitrary and capricious. Cf. Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567.
25
The legislative history of the section confirms this conclusion. That history makes clear that Congress was concerned that neither the Secretary's reasons for a designation nor the fact of the designation should be publicized. This emerged after President Truman vetoed the statute. In its original form the Act required the Secretary to 'designate and proclaim, and from time to time revise, a list of facilities * * * to be promptly published in the Federal Register * * *.' § 5(b). The President commented in his veto message, '(s)pies and saboteurs would willingly spend years of effort seeking to find out the information that this bill would require the Government to hand them on a silver platter.' H.R.Doc.No. 708, 81st Cong., 2d Sess. 2 (1950). Shortly after this Court sustained the registration provisions of the Act in Communist Party of U.S. v. Subversive Activities Control Board, supra, the Act was amended at the request of the Secretary to eliminate the requirement that the list of designated facilities be published in the Federal Register. 76 Stat. 91. Instead, the list is classified information. Whether or not such classification is practically meaningful—in light of the fact that notice of a designation must be posted in the designated facility—the history is persuasive against any congressional intention to provide for hearings or judicial review that might be attended with undesired publicity. We are therefore not free to imply limitations upon the Secretary's discretion or procedural safeguards that Congress obviously chose to omit. Compare Cole v. Young, 351 U.S. 536, 76 S.Ct. 861, 100 L.Ed. 1396; United States v. Rumely, supra; Ex parte Endo, 323 U.S. 283, 299, 65 S.Ct. 208, 217, 89 L.Ed. 243; Japanese Immigrant Case (Kaoru Yamataya v. Fisher), 189 U.S. 86, 101, 23 S.Ct. 611, 614, 47 L.Ed. 721; see Greene v. McElroy, supra, 360 U.S., at 507, 79 S.Ct. at 1419.
26
Third. The indefiniteness of the delegation in this case also results in inadequate notice to affected persons. Although the form of notice provided for in § 5(b) affords affected persons reasonable opportunity to conform their behavior to avoid punishment, it is not enough that persons engaged in arguably protected activity be reasonably well advised that their actions are subject to regulation. Persons so engaged must not be compelled to conform their behavior to commands, no matter how unambiguous, from delegated agents whose authority to issue the commands is unclear. Marcus v. Search Warrants of Properties, etc., supra, 367 U.S., at 736, 81 S.Ct., at 1718. The legislative directive must delineate the scope of the agent's authority so that those affected by the agent's commands may know that his command is within his authority and is not his own arbitrary fiat. Cramp v. Board of Public Instruction of Orange County, Fla., 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285; Scull v. Commonwealth of Virginia, etc., 359 U.S. 344, 79 S.Ct. 838, 3 L.Ed.2d 865; Watkins v. United States, supra, 354 U.S., at 208—209, 77 S.Ct., at 1189 1190. There is no way for persons affected by § 5(a)(1)(D) to know whether the Secretary is acting within his authority, and therefore no fair basis upon which they may determine whether or not to risk disobedience in the exercise of activities normally protected.
27
Section 5(a)(1)(D) denies significant employment rights under threat of criminal punishment to persons simply because of their political associations. The Government makes no claim that Robel is a security risk. He has worked as a machinist at the shipyards for many years, and we are told is working there now. We are in effect invited by the Government to assume that Robel is a law abiding citizen, earning a living at his chosen trade. The justification urged for punishing him is that Congress may properly conclude that members of the Communist Party, even though nominal or inactive members and believing only in change through lawful means, are more likely than other citizens to engage in acts of espionage and sabotage harmful to our national security. This may be so. But in areas of protected freedoms, regulation based upon mere association and not upon proof of misconduct or even of intention to act unlawfully, must at least be accompanied by standards or procedural protections sufficient to sefeguard against indiscriminate application. 'If * * * 'liberty' is to be regulated, it must be pursuant to the law-making functions of the Congress * * * (a)nd if that power is delegated, the standards must be adequate to pass scrutiny by the accepted tests.' Kent v. Dulles, 357 U.S. 116, 129, 78 S.Ct. 1113, 1120, 2 L.Ed.2d 1204.
28
Mr. Justice WHITE, with whom Mr. Justice HARLAN joins, dissenting.
29
The Court holds that because of the First Amendment a member of the Communist Party who knows that the Party has been held to be a Communist-action organization may not be barred from employment in defense establishments important to the security of the Nation. It therefore refuses to enforce the contrary judgments of the Legislative and Executive Branches of the Government. Respectfully disagreeing with this view, I dissent.
30
The constitutional right found to override the public interest in national security defined by Congress is the right of association, here the right of appellee Robel to remain a member of the Communist Party after being notified of its adjudication as a Communist-action organization. Nothing in the Constitution requires this result. The right of association is not mentioned in the Constitution. It is a judicial construct appended to the First Amendment rights to speak freely, to assemble, and to petition for redress of grievances.1 While the right of association has deep roots in history and is supported by the inescapable necessity for group action in a republic as large and complex as ours, it has only recently blossomed as the controlling factor in constitutional litigation; its contours as yet lack delineation. Although official interference with First Amendment rights has drawn close scrutiny, it is now apparent that the right of association is not absolute and is subject to significant regulation by the State. The law of criminal conspiracy restricts the purposes for which men may associate and the means they may use to implement their plans. Labor unions, and membership in them, are intricately controlled by statutes, both federal and state, as are political parties and corporations.
31
The relevant cases uniformly reveal the necessity for accommodating the right of association and the public interest. NAACP v. State of Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), which contained the first substantial discussion of the right in an opinion of this Court, exemplifies the judicial approach. There, after noting the impact of official action on the right to associate, the Court inquired 'whether Alabama has demonstrated an interest in obtaining the disclosures it seeks from petitioner which is sufficient to justify the deterrent effect which we have concluded these disclosures may well have on the free exercise by petitioner's members of their constitutionally protected right of association.' 357 U.S., at 463, 78 S.Ct., at 1172. The same path to decision is evident in Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); and Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964). Only last week in United Mine Workers of America, Dist. 12 v. Illinois State Bar Assn., 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426, the Court weighed the right to associate in an organization furnishing salaried legal services to its members against the State's interest in insuring adequate and personal legal representation, and found the State's interest insufficient to justify its restrictions.
32
Nor does the Court mandate a different course in this case. Apparently 'active' members of the Communist Party who have demonstrated their commitment to the illegal aims of the Party may be barred from defense facilities. This exclusion would have the same deterrent effect upon associational rights as the statute before us, but the governmental interest in security would override that effect. Also, the Court would seem to permit barring appellee, although not an 'active' member of the Party, from employment in 'sensitive' positions in the defense establishment. Here, too, the interest in anticipating and preventing espionage or sabotage would outweigh the deterrent impact of job disqualification. If I read the Court correctly, associating with the Communist Party may at times be deterred by barring members from employment and nonmembership may at times be imposed as a condition of engaging in defense work. In the case before us the Court simply disagrees with the Congress and the Defense Department, ruling that Robel does not present a sufficient danger to the national security to require him to choose between membership in the Communist Party and his employment in a defense facility. Having less confidence than the majority in the prescience of this remote body when dealing with threats to the security of the country, I much prefer the judgment of Congress and the Executive Branch that the interest of appellee in remaining a member of the Communist Party, knowing that it has been adjudicated a Communist-action organization, is less substantial than the public interest in excluding him from employment in critical defense industries.
33
The national interest asserted by the Congress is real and substantial. After years of study, Congress prefaced the Subversive Activities Control Act of 1950, 64 Stat. 987, 50 U.S.C. §§ 781—798, with its findings that there exists an international Communist movement which by treachery, deceit, espionage, and sabotage seeks to overthrow existing governments; that the movement operates in this country through Communist-action organizations which are under foreign domination and control and which seek to overthrow the Government by any necessary means, including force and viollence; that the Communist movement in the United States is made up of thousands of adherents, rigidly disciplined, operating in secrecy, and employing espionage and sabotage tactics in form and manner evasive of existing laws. Congress therefore, among other things, defined the characteristics of Communistaction organizations, provided for their adjudication by the SACB, and decided that the security of the United States required the exclusion of Communist-action organization members from employment in certain defense facilities. After long and complex litigation, the SACB found the Communist Party to be a Communist-action organization within the meaning of the Act. That conclusion was affirmed both by the Court of Appeals, Communist Party of U.S. v. Subversive Activities Control Board, 107 U.S.App.D.C. 279, 277 F.2d 78 (1959), and this Court, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961). Also affirmed were the underlying determinations, required by the Act, that the Party is directed or controlled by a foreign government or organization, that it operates primarily to advance the aims of the world Communist movement, and that it sufficiently satisfies the criteria of Communist-action organizations specified by 50 U.S.C. § 792(e), including the finding by the Board that many Party members are subject to or recognize the discipline of the controlling foreign government or organization. This Court accepted the congressional appraisal that the Party posed a threat 'not only to existing government in the United States, but to the United States as a sovereign, independent nation * * *.' 367 U.S., at 95, 81 S.Ct., at 1410.
34
Against this background protective measures were clearly appropriate. One of them, contained in 50 U.S.C. § 784(a)(1)(D), which became activated with the affirmance of the Party's designation as a Communist-action organization, makes it unlawful '(f)or any member of such organization, with knowledge or notice * * * that such order has become final * * * to engage in any employment in any defense facility. * * *' A defense facility is any of the specified types of establishment 'with respect to the operation of which (the Secretary of Defense) finds and determines that the security of the United States requires' that members of such organizations not be employed. Given the characteristics of the Party, its foreign domination, its primary goal of government overthrow, the discipline which it exercises over its members, and its propensity for espionage and sabotage, the exclusion of members of the Party who know the Party is a Communistaction organization from certain defense plants is well within the powers of Congress.
35
Congress should be entitled to take suitable precautionary measures. Some Party members may be no threat at all, but many of them undoubtedly are, and it is exceedingly difficult to identify those in advance of the very events which Congress seeks to avoid. If Party members such as Robel may be barred from 'sensitive positions,' it is because they are potential threats to security. For the same reason they should be excludable from employment in defense plants which Congress and the Secretary of Defense consider of critical importance to the security of the country.
36
The statute does not prohibit membership in the Communist Party. Nor are appellee and other Communists excluded from all employment in the United States, or even from all defense plants. The touchstones for exclusion are the requirements of national security, and the facilities designated under this standard amount to only about one percent of all the industrial establishments in the United States.
37
It is this impact on associational rights, although specific and minimal, which the Court finds impermissible. But as the statute's dampening effect on associational rights is to be weighed against the asserted and obvious government interest in keeping members of Communist-action groups from defense facilities, it would seem important to identify what interest Robel has in joining and remaining a member of a group whose primary goals he may not share. We are unenlightened, however, by the opinion of the Court or by the record in this case, as to the purposes which Robel and others like him may have in associating with the Party. The legal aims and programs of the Party are not identified or appraised nor are Robel's activities as a member of the Party. The Court is left with a vague and formless concept of associational rights and its own notions of what constitutes an unreasonable risk to defense facilities.
38
The Court says that mere membership in an association with knowledge that the association pursues unlawful aims cannot be the basis for criminal prosecution, Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961), or for denial of a passport, Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964). But denying the opportunity to be employed in some defense plants is a much smaller deterrent to the exercise of associational rights than denial of a passport or a criminal penalty attached solely to membership, and the Government's interest in keeping potential spies and saboteurs from defense plants is much greater than its interest in keeping disloyal Americans from traveling abroad or in committing all Party members to prison. The 'delicate and difficult' judgment to which the Court refers should thus result in a different conclusion from that reached in the Scales and Aptheker cases.2
39
The Court's motives are worthy. It seeks the widest bounds for the exercise of individual liberty consistent with the security of the country. In so doing it arrogates to itself an independent judgment of the requirements of national security. These are matters about which judges should be wary. James Madison wrote:
40
'Security against foreign danger is one of the primitive objects of civil society. * * *
41
'* * * The means of security can only be regulated by the means and the danger of attack. They will in fact be ever determined by these rules, and by no others. It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions.'3
1
The Act was passed over the veto of President Truman. In his veto message, President Truman told Congress, 'The Department of Justice, the Department of Defense, the Central Intelligence Agency, and the Department of State have all advised me that the bill would seriously damage the security and the intelligence operations for which they are responsible. They have strongly expressed the hope that the bill would not become law.' H.R.Doc. No. 708, 81st Cong., 2d Sess., 1 (1950).
President Truman also observed that 'the language of the bill is so broad and vague that it might well result in penalizing the legitimate activities of people who are not Communists at all, but loyal citizens.' Id., at 3.
2
Section 3(3)(a) of the Act, 50 U.S.C. § 782(3)(a), defines a 'Communist-action organization' as:
'any organization in the United States (other than a diplomatic representative or mission of a foreign government accredited as such by the Department of State) which (i) is substantially directed, dominated, or controlled by the foreign government or foreign organization contolling the world Communist movement * * * and (ii) operates primarily to advance the objectives of such world Communist movement * * *.'
3
The Government has persisted in this view in its arguments to this Court. Brief for the Government 48—56.
4
We initially heard oral argument in this case on November 14, 1966. On June 5, 1967, we entered the following order:
'Case is restored to the calendar for reargument and counsel are directed to brief and argue, in addition to the questions presented, the question whether the delegation of authority to the Secretary of Defense to designate 'defense facilities' satisfies pertinent constitutional standards.' 387 U.S. 939, 87 S.Ct. 2071, 18 L.Ed.2d 1325.
We heard additional arguments on October 9, 1967.
5
In addition to arguing that § 5(a)(1)(D) is invalid under the First Amendment, appellee asserted the statute was also unconstitutional because (1) it offended substantive and procedural due process under the Fifth Amendment; (2) it contained an unconstitutional delegation of legislative power to the Secretary of Defense; and (3) it is a bill of attainder. Because we agree that the statute is contrary to the First Amendment, we find it unnecessary to consider the other constitutional arguments.
6
18 U.S.C. § 2385.
7
Our decisions leave little doubt that the right of association is specifically protected by the First Amendment. E.g., Aptheker v. Secretary of State, supra, 378 U.S. at 507, 84 S.Ct. at 1664; Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 543, 83 S.Ct. 889, 892, 9 L.Ed.2d 929 (1963); Bates v. City of Little Rock, 361 U.S. 516, 522—523, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); NAACP v. State of Alabama ex rel. Patterson. 357 U.S. 449, 460, 79 S.Ct. 1163, 1170, 2 L.Ed.2d 1488 (1958). See generally Emerson, Freedom of Association and Freedom of Expression, 74 Yale L.J. 1 (1964).
8
See, e.g., Lichter v. United States, 334 U.S. 742, 754 772, 68 S.Ct. 1294, 1301—1310, 92 L.Ed. 1694 (1948); Hirabayashi v. United States, 320 U.S. 81, 93, 63 S.Ct. 1375, 1382, 87 L.Ed. 1774 (1943).
9
Brief for the Government 15.
10
The appellee has worked at the shipyard, apparently without incident and apparently without concealing his Communist Party membership, for more than 10 years. And we are told that, following appellee's indictment and arrest, 'he was released on his own recognizance, and immediately returned to his job as a machinist at the Todd Shipyards, where he has worked ever since.' Brief for Appellee 6, n. 8. As far as we can determine, appellee is the only individual the Government has attempted to prosecute under § 5(a)(1)(D).
11
We recognized in Greene v. McElroy, 360 U.S., at 492, 79 S.Ct., at 1411, 3 L.Ed.2d 1377, that 'the right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within the 'liberty' and 'property' concepts of the Fifth Amendment.'
12
50 U.S.C. § 794(c).
13
The Government has insisted that Congress, in enacting § 5(a)(D), has not sought 'to punish membership in 'Communist-action' * * * organizations.' Brief for the Government 53. Rather, the Government asserts, Congress has simply sought to regulate access to employment in defense facilities. But it is clear the employment disability is imposed only because of such membership.
14
See Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961).
15
See Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966).
16
A number of complex motivations may impel an individual to align himself with a particular organization. See gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 562 565, 83 S.Ct. 889, 902—903, 9 L.Ed.2d 929 (1963) (concurring opinion). It is for that reason that the mere presence of an individual's name on an organization's membership rolls is insufficient to impute to him the organization's illegal goals.
17
See Cole v. Young, 351 U.S. 536, 546, 76 S.Ct. 861, 868, 100 L.Ed. 1396 (1956): '(I)t is difficult to justify summary suspensions and unreviewable dismissals on loyalty grounds of employees who are not in 'sensitive' positions and who are thus not situated where they could bring about any discernible adverse effects on the Nation's security.'
18
Congress has already provided stiff penalties for those who conduct espionage and sabotage against the United States. 18 U.S.C. §§ 792—798 (espionage); §§ 2151—2156 (sabotage).
19
The Department of Defense, pursuant to Executive Order 10865, as amended by Executive Order 10909, has established detailed procedures for screening those working in private industry who, because of their jobs, must have access to classified defense information. 32 CFR Part 155. The provisions of those regulations are not before the Court in this case.
20
It has been suggested that this case should be decided by 'balancing' the governmental interests expressed in § 5(a)(1)(D) against the First Amendment rights asserted by the appellee. This we decline to do. We recognize that both interests are substantial, but we deem it inappropriate for this Court to label one as being more important or more substantial than the other. Our inquiry is more circumscribed. Faced with a clear conflict between a federal statute enacted in the interests of national security and an individual's exercise of his First Amendment rights, we have confined our analysis to whether Congress has adopted a constitutional means in achieving its concededly legitimate legislative goal. In making this determination we have found it necessary to measure the validity of the means adopted by Congress against both the goal it has sought to achieve and the specific prohibitions of the First Amendment. But we have in no way 'balanced' those respective interests. We have ruled only that the Constitution requires that the conflict between congressional power and individual rights be accommodated by legislation drawn more narrowly to avoid the conflict. There is, of course, nothing novel in that analysis. Such a course of adjudication was enunciated by Chief Justice Marshall when he declared: 'Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.' M'Culloch v. State of Maryland, 4 Wheat. 316, 421, 4 L.Ed. 579 (1819) (emphasis added). In this case, the means chosen by Congress are contrary to the 'letter and spirit' of the First Amendment.
1
See Cole v. Young, 351 U.S. 536, 546, 76 S.Ct. 861, 868, 100 L.Ed. 1396: '(I)t is difficult to justify summary suspensions and unreviewable dismissals on loyalty grounds of employees who are not in 'sensitive' positions and who are thus not situated where they could bring about any discernible adverse effects on the Nation's security.'
2
The Government also points out that § 5(a)(1)(D) applies only to members of 'Communist-action' organizations, while § 6 applied also to members of 'Communist-front' organizations, groups which the Government contends are less dangerous to the national security under Congress' definitions, and whose members are therefore presumably less dangerous. This distinction is, however, open to some doubt. Even if a 'front' organization, which is defined as an organization either dominated by or primarily operated for the purpose of aiding and supporting 'action' organizations, could in some fashion be regarded as less dangerous, Aptheker held § 6 invalid because it failed to discriminate among affected persons on the bases of their activity and commitment to unlawful purposes, and nothing in the opinion indicates the result would have been different if Congress had been indiscriminate in these respects with regard only to 'Communist-action' group members.
3
The choice of a prophylactic measure 'must be viewed in the light of less drastic means for achieving the same basic purpose.' Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231. Since I would affirm on another ground, however, I put aside the question whether existing security programs were inadequate to prevent serious, possibly catastrophic consequences.
Congress rejected suggestions of the President and the Department of Justice that existing security programs were adequate with only slight modifications. See H.R.Doc.No. 679, 81st Cong., 2d Sess., 5 (1950); Hearings on Legislation to Outlaw Certain Un-American and Subversive Activities before the House Un-American Activities Committee, 81st Cong., 2d Sess., 2122—2125 (1950). Those programs cover most of the facilities within the reach of § 5(a)(1)(D) and make Party membership an important factor governing access. 32 CFR § 155.5. They provide measures to prevent and punish subversive acts. The Department of Defense, moreover, had screened some 3,000,000 defense contractor employees under these procedures by 1956, Brown, Loyalty and Security 179 180 (1958), thereby providing at least some evidence of its capacity to handle this problem in a more discriminating manner.
4
Congress, in fact, originally proposed to limit the Secretary's discretion in designating 'defense facilities.' H.R. 9490, passed by both the House and Senate, provided that the Secretary should determine and designate each 'defense plant' as defined in § 3(7) of the Act. The difference between that version and § 5(a)(1)(D) adopted at conference is commented upon in H.R.Conf.Rep. No. 3112, 81st Cong., 2d Sess., 50 (1950); U.S. Code Congressional Service, p. 3902: 'Under section 3(7) a defense plant was defined as any plant, factory, or other manufacturing or service establishment, or any part thereof, engaged in the production or furnishing, for the use of the Government, of any commodity or service determined and designated by the Secretary of Defense to be of such character as to affect the military security of the United States.
'Section 3(7), and the provisions of section 5 relating to the designation of defense plants by the Secretary of Defense, have been modified in the conference substitute so as to broaden the concept of defense plants to cover any appropriately designated plant, factory or other manufacturing, producing, or service establishment, airport, airport facility, vessel, pier, water-front facility, mine, railroad, public utility, laboratory, station, or other establishment or facility, or any part, division, or department of any of the foregoing. Because of this broader coverage, section 3(7) has been changed so as to define the two terms 'facility' and 'defense facility."
5
The Secretary has published criteria which guide him in applying the statute:
'The list of 'defense facilities' is comprised of (1) facilities engaged in important classified military projects; (2) facilities producing important weapons systems, subassemblies and their components; (3) facilities producing essential common components, intermediates, basic materials and raw materials; (4) important utility and service facilities; and (5) research laboratories whose contributions are important to the national defense. The list, which will be amended from time to time as necessary, has been classified for reasons of security.' Department of Defense Release No. 1363—62, Aug. 20, 1962. These broad standards, which might easily justify applying the statute to most of our major industries, cannot be read into the statute to limit the Secretary's discretion, since they are subject to unreviewable amendment.
6
The statute contemplates only four significant findings before criminal liability attaches: (1) that the Communist Party is a 'Communist-action organization'; (2) that defendant is a member of the Communist Party; (3) that defendant is engaged in employment at a 'defense facility'; and (4) that he had notice that his place of employment was a 'defense facility.' The first finding was made by the Subversive Activities Control Board. The third finding—that the shipyard is a 'defense facility'—was made by the Secretary of Defense. The fourth finding refers to the notice requirement which is no more than a presumption from the posting required of the employer by § 5(b). Thus the only issue which a defendant can effectively contest is whether he is a Communist Party member. In view of the result which I would reach, however, I need not consider appellee's argument that this affords defendants only the shadow of a trial, and violates due process.
1
If men may speak as individuals, they may speak in groups as well. If they may assemble and petition, they must have the right to associate to some extent. In this sense the right of association simply extends constitutional protection to First Amendment rights when exercised with others rather than by an individual alone. In NAACP v. State of Alabama ex rel. Patterson, the Court said that the freedom to associate for the advancement of beliefs and ideas is constitutionally protected and that it is 'immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters * * *.' 357 U.S. 449, 460, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488 (1958). That case involved the propagation of ideas by a group as well as litigation as a form of petition. The latter First Amendment element was also involved in NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Brotherhood of Railroad Trainmen v. Virginia State Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964); and United Mine Workers of America, Dist. 12 v. Illinois State Bar Assn., 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426. The activities in Eastern R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), although commercially motivated, were aimed at influencing legislative action. Whether the right to associate is an independent First Amendment right carrying its own credentials and will be carried beyond the implementation of other First Amendment rights awaits a definitive answer. In this connection it should be noted that the Court recently dismissed, as not presenting a substantial federal question, an appeal challenging Florida regulations which forbid a Florida accountant from associating in his work, whether as partner or employee, with any nonresident accountant; out-of-state associations are barred from the State unless every partner is a qualified Florida accountant, and in practice only Florida residents can become qualified there. Mercer v. Hemmings, 389 U.S. 46, 88 S.Ct. 236, 19 L.Ed.2d 50 (Oct. 23, 1967).
2
I cannot agree with my Brother Brennan that Congress delegated improperly when it authorized the Secretary of Defense to determine 'with respect to the operation of which (defense facilities) * * * the security of the United States requires the application of the provisions of subsection (a) of this section.' Rather I think this is precisely the sort of application of a legislative determination to specific facts within the administrator's expertise that today's complex governmental structure requires and that this Court has frequently upheld. E.g., Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944). I would reject also appellee's contention that the statute is a bill of attainder. See United States v. Brown, 381 U.S. 437, 462, 85 S.Ct. 1707, 1722, 14 L.Ed.2d 484 (1965) (White, J., dissenting).
3
The Federalist No. 41, pp. 269—270 (Cooke ed. 1961).
| 23
|
389 U.S. 290
88 S.Ct. 438
19 L.Ed.2d 530
Stella HUGHES, Petitioner,v.STATE OF WASHINGTON.
No. 15.
Argued Nov. 6, 1967.
Decided Dec. 11, 1967.
Charles B. Welsh, South Bend, Wash., for petitioner.
Edwin L. Weisl, Jr., Washington, D.C., for the United States, as amicus curiae, by special leave of Court.
Harold T. Hartinger, Olympia, Wash., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
The question for decision is whether federal or state law controls the ownership of land, called accretion, gradually deposited by the ocean on adjoining upland property conveyed by the United States prior to statehood. The circumstances that give rise to the question are these. Prior to 1889 all land in what is now the State of Washington was owned by the United States, except land that had been conveyed to private parties. At that time owners of property bordering the ocean, such as the predecessor in title of Mrs. Stella Hughes, the petitioner here, had under the common law a right of include within their lands any accretion gradually built up by the ocean.1 Washington became a State in 1889, and Article 17 of the State's new constitution, as interpreted by its Supreme Court, denies the owners of ocean-front property in the State any further rights in accretion that might in the future be formed between their property and the ocean. This is a suit brought by Mrs. Hughes, the successor in title to the original federal grantee, against the State of Washington as owner of the tidelands to determine whether the right to future accretions which existed under federal law in 1889 was abolished by that provision of the Washington Constitution. The trial court upheld Mrs. Hughes' contention that the right to accretions remained subject to federal law, and that she was the owner of the accreted lands. The State Supreme Court reversed, holding that state law controlled and that the State owned these lands. 67 Wash.2d 799, 410 P.2d 20 (1966). We granted certiorari. 385 U.S. 1000, 87 S.Ct. 700, 17 L.Ed.2d 540 (1967). We hold that this question is governed by federal, not state, law and that under federal law Mrs. Hughes, who traces her title to a federal grant prior to statehood, is the owner of these accretions.
2
While the issue appears never to have been squarely presented to this Court before, we think the path to decision is indicated by our holding in Borax, Consolidated Ltd. v. City of Los Angeles, 296 U.S. 10, 56 S.Ct. 23, 80 L.Ed. 9 (1935). In that case we dealt with the rights of a California property owner who held under a federal patent, and in that instance, unlike the present case, the patent was issued after statehood. We held that
3
'(t)he question as to the extent of this federal grant, that is, as to the limit of the land conveyed, or the boundary between the upland and the tideland, is necessarily a federal question. It is a question which concerns the validity and effect of an act done by the United States; it involves the ascertainment of the essential basis of a right asserted under federal law.' 296 U.S., at 22, 56 S.Ct., at 29.
4
No subsequent case in this Court has cast doubt on the principle announced in Borax. See also United States v. State of Oregon, 295 U.S. 1, 27—28, 55 S.Ct. 610, 620—621, 79 L.Ed. 1267 (1935). The State argues, and the court below held, however, that the Borax case should not be applied here because that case involved no question as to accretions. While this is true, the case did involve the question as to what rights were conveyed by the federal grant and decided that the extent of ownership under the federal grant is governed by federal law. This is as true whether doubt as to any boundary is based on a broad question as to the general definition of the shoreline or on a particularized problem relating to the ownership of accretion. See United States v. State of Washington, 294 F.2d 830, 832 (C.A.9th Cir. 1961), cert. denied, 369 U.S. 817, 82 S.Ct. 828, 7 L.Ed.2d 783 (1962). We therefore find no significant difference between Borax and the present case.
5
Recognizing the difficulty of distinguishing Borax, respondent urges us to reconsider it. Borax itself, as well as United States v. State of Oregon, supra, and many other cases, makes clear that a dispute over title to lands owned by the Federal Government is governed by federal law, although of course the Federal Government may, if it desires, choose to select a state rule as the federal rule. Borax holds that there has been no such choice in this area, and we have no difficulty in concluding that Borax was correctly decided. The rule deals with waters that lap both the lands of the State and the boundaries of the international sea. This relationship, at this particular point of the marginal sea, is too close to the vital interest of the Nation in its own boundaries to allow it to be governed by any law but the 'supreme Law of the Land'.
6
This brings us to the question of what the federal rule is. The State has not attempted to argue that federal law gives it title to these accretions, and it seems clear to us that it could not. A long and unbroken line of decisions of this Court establishes that the grantee of land bounded by a body of navigable water acquires a right to any natural and gradual accretion formed along the shore. In Jones v. Johnston, 18 How. 150, 15 L.Ed. 320 (1856), a dispute between two parties owning land along Lake Michigan over the ownership of soil that had gradually been deposited along the shore, this Court held that '(l)and gained from the sea either by alluvion or dereliction, if the same be by little and little, by small and imperceptible degrees, belongs to the owner of the land adjoining.' 18 How., at 156. The Court has repeatedly reaffirmed this rule. County of St. Clair v. Lovingston, 23 Wall. 46, 23 L.Ed. 59 (1874); Jefferis v. East Omaha Land Co., 134 U.S. 178, 10 S.Ct. 518, 33 L.Ed. 872 (1890),2 and the soundness of the principle is scarcely open to question. Any other rule would leave riparian owners continually in danger of losing the access to water which is often the most valuable feature of their property, and continually vulnerable to harassing litigation challenging the location of the original water lines. While it is true that these riparian rights are to some extent insecure in any event, since they are subject to considerable control by the neighboring owner of the tideland,3 this is insufficient reason to leave these valuable rights at the mercy of natural phenomena which may in no way affect the interests of the tideland owner. See Stevens v. Arnold, 262 U.S. 266, 269—270, 43 S.Ct. 560, 561, 67 L.Ed. 974 (1923). We therefore hold that petitioner is entitled to the accretion that has been gradually formed along her property by the ocean.
7
The judgment below is reversed, and the case is remanded to the Supreme Court of Washington for further proceedings not inconsistent with this opinion.
8
Reversed and remanded.
9
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
10
Mr. Justice STEWART, concurring.
11
I fully agree that the extent of the 1866 federal grant to which Mrs. Hughes traces her ownership was originally measurable by federal common law, and that under the applicable federal rule her predecessor in title acquired the right to all accretions gradually built up by the sea. For me, however that does not end the matter. For the Supreme Court of Washington decided in 1966, in the case now before us, that Washington terminated the right to oceanfront accretions when it became a State in 1889. The State concedes that the federal grant in question conferred such a right prior to 1889. But the State purports to have reserved all post-1889 accretions for the public domain. Mrs. Hughes is entitled to the beach she claims in this case only if the State failed in its effort to abolish all private rights to seashore accretions.
12
Surely it must be conceded as a general proposition that the law of real property is, under our Constitution, left to the individual States to develop and administer. And surely Washington or any other State is free to make changes, either legislative or judicial, in its general rules of real property law, including the rules governing the property rights of riparian owners. Nor are riparian owners who derive their title from the United States somehow immune from the changing impact of these general state rules. Joy v. City of St. Louis, 201 U.S. 332, 342, 26 S.Ct. 478, 481, 50 L.Ed. 776. For if they were, then the property law of a State like Washington, carved entirely out of federal territory, would be forever frozen into the mold it occupied on the date of the State's admission to the Union. It follows that Mrs. Hughes cannot claim immunity from changes in the property law of Washington simply because her title derives from a federal grant. Like any other property owner, however, Mrs. Hughes may insist, quite apart from the federal origin of her title, that the State not take her land without just compensation. Chicago, B. & Q.R. Co. v. City of Chicago, 166 U.S. 226, 236—241, 17 S.Ct. 581, 584 586, 41 L.Ed. 979.
13
Accordingly, if Article 17 of the Washington Constitution had unambiguously provided, in 1889, that all accretions along the Washington coast from that day forward would belong to the State rather than to private riparian owners, this case would present two questions not discussed by the Court, both of which I think exceedingly difficult. First: Does such a prospective change in state property law constitute a compensable taking? Second: If so, does the constitutional right to compensation run with the land, so as to give not only the 1889 owner, but also his successors—including Mrs. Hughes—a valid claim against the State?
14
The fact, however, is that Article 17 contained no such unambiguous provision. In that Article, the State simply asserted its ownership of 'the beds and shores of all navigable waters in the state up to and including the line of ordinary high tide, in waters where the tide ebbs and flows, and up to and including the line of ordinary high water within the banks of all navigable rivers and lakes.' In the present case the Supreme Court of Washington held that, by this 1889 language, '(l)ittoral rights of upland owners were terminated.' 67 Wash.2d 799, 816, 410 P.2d 20, 29. Such a conclusion by the State's highest court on a question of state law would ordinarily bind this Court, but here the state and federal questions are inextricably intertwined. For if it cannot reasonably be said that the littoral rights of upland owners were terminated in 1889, then the effect of the decision now before us is to take from these owners, without compensation, land deposited by the Pacific Ocean from 1889 to 1966.
15
We cannot resolve the federal question whether there has been such a taking without first making a determination of our own as to who owned the seashore accretions between 1889 and 1966. To the extent that the decision of the Supreme Court of Washington on that issue arguably conforms to reasonable expectations, we must of course accept it as conclusive. But to the extent that it constitutes a sudden change in state law, unpredictable in terms of the relevant precedents, no such deference would be appropriate. For a State cannot be permitted to defeat the constitutional prohibition against taking property without due process of law by the simple device of asserting retroactively that the property it has taken never existed at all. Whether the decision here worked an unpredictable change in state law thus inevitably presents a federal question for the determination of this Court. See Demorest v. City Bank Farmers Trust Co., 321 U.S. 236, 42—43, 64 S.Ct. 384, 388—389, 88 L.Ed. 526. Cf. State of Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 58 S.Ct. 443, 82 L.Ed. 685. The Washington court insisted that its decision was 'not startling.' 67 Wash.2d 799, 814, 410 P.2d 20, 28. What is at issue here is the accuracy of that characterization.
16
The state court rested its result upon Eisenbach v. Hatfield, 2 Wash. 236, 26 P. 539, 12 L.R.A. 632, but that decision involved only the relative rights of the State and the upland owner in the tidelands themselves. The Eisenbach court declined to resolve the accretions question presented here. This question was resolved in 1946, in Ghione v. State, 26 Wash.2d 635, 175 P.2d 955. There the State asserted, as it does here, that Article 17 operated to deprive private riparian owners of post-1889 accretions. The Washington Supreme Court rejected that assertion in Ghione and held that, after 1889 as before, title to gradual accretions under Washington law vested in the owner of the adjoining land. In the present case, 20 years after its Ghione decision, the Washington Supreme Court reached a different conclusion. The state court in this case sought to distinguish Ghione: The water there involved was part of a river. But the Ghione court had emphatically stated that the same 'rule of accretion * * * applies to both tidewaters and fresh waters.' 26 Wash.2d 635, 645, 175 P.2d 955, 961. I can only conclude, as did the dissenting judge below, that the state court's most recent construction of Article 17 effected an unforeseeable change in Washington property law as expounded by the State Supreme Court.
17
There can be little doubt about the impact of that change upon Mrs. Hughes: The beach she had every reason to regard as hers was declared by the state court to be in the public domain. Of course the court did not conceive of this action as a taking. As is so often the case when a State exercises its power to make law, or to regulate, or to pursue a public project, pre-existing property interests were impaired here without any calculated decision to deprive anyone of what he once owned. But the Constitution measures a taking of property not by what a State says, or by what it intends, but by what it does. Although the State in this case made no attempt to take the accreted lands by eminent domain, it achieved the same result by effecting a retroactive transformation of private into public property—without paying for the privilege of doing so. Because the Due Process Clause of the Fourteenth Amendment forbids such confiscation by a State, no less through its courts than through its legislature, and no less when a taking is unintended than when it is deliberate, I join in reversing the judgment.
1
Jones v. Johnston, 18 How. 150, 15 L.Ed. 320 (1856); County of St. Clair v. Lovingston, 23 Wall. 46, 23 L.Ed. 59 (1874).
2
In Ker & Co. v. Couden, 223 U.S. 268, 32 S.Ct. 284, 56 L.Ed. 432 (1912), Mr. Justice Holmes, writing for the Court, held that under the governing Spanish law lands added to the shore by accretion in the Philippines belonged to the public domain rather than to the adjacent estate.
3
It has been held that a State may, without paying compensation, deprive a riparian owner of his common-law right to utilize the flowing water, St. Anthony Falls Water-Power Co. v. Board of Water Com'rs, 168 U.S. 349, 18 S.Ct. 157, 42 L.Ed. 497 (1897), or to build a wharf over the water, Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1894). It has also been held that the State may fill its tidelands and thus block the riparian owner's natural access to the water. Port of Seattle v. Oregon & W. R. Co., 255 U.S. 56, 41 S.Ct. 237, 65 L.Ed. 500 (1921).
| 910
|
389 U.S. 308
88 S.Ct. 502
19 L.Ed.2d 545
UNITED STATES, Appellant,v.PENNOLIN COMPANY et al.
No. 26.
Supreme Court of the United States
October Term, 1967.
December 11, 1967
Edwin M. Zimmerman for appellant.
Albert R. Connelly and H. Francis DeLone for appellees.
PER CURIAM.
1
The judgment of the United States District Court for the District of Delaware is affirmed by an equally divided Court.
2
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
| 78
|
389 U.S. 309
88 S.Ct. 450
19 L.Ed.2d 546
W. E. B. DuBOIS CLUBS OF AMERICA et al.v.CLARK et al.
No. 515.
Decided Dec. 11, 1967.
Rehearing Denied Jan. 22, 1968.
See 390 U.S. 913, 88 S.Ct. 814.
William M. Kunstler, Arthur Kinoy, Melvin L. Wulf, David Rein, Monroe H. Freedman and Floyd McKissick, for appellants.
Acting Solicitor General Spritzer, Assistant Attorney General Yeagley, Kevin T. Maroney, George B. Searls and Lee B. Anderson, for appellees.
PER CURIAM.
1
On March 4, 1966, the Attorney General petition the Subversive Activities Control Board for an order, after appropriate hearings, requiring the W. E. B. DuBois Clubs of America to register with the Attorney General as a Communist-front organization.1 On April 26, 1966, before hearings were held, appellants attempted to bypass the Board by suing in the District Court.2 Appellants' complaint in the District Court alleged that the Communist-front registration provisions of the Act were unconstitutional.3 The complaint also alleged that the 'very pendency of these administrative proceedings * * * has resulted and will continue to result * * * in immediate and irreparable injury to fundamental constitutional rights * * *.' Appellants asked the District Court for an order declaring the Communist-front registration provisions unconstitutional and also for an order enjoining the Attorney General and the SACB from enfocing them. A three-judge District Court, convened on appellants' motion, dismissed the complaint because appellants had failed to exhaust their administrative remedies.4 This appeal followed.
2
Before there may be proceedings to punish appellants for failure to register with the Attorney General, the SACB must first find that the DuBois Clubs is a Communist-front organization and issue an order to that effect.5 The Act provides for a full evidentiary hearing which is to held in public. Appellants may be represented by counsel, offer oral or documentary evidence, submit rebuttal evidence, and conduct cross-examination. The SACB must make a written report and state its finding of fact. If appellants are aggrieved by the Board's order, they may obtain review in the United States Court of Appeals for the District of Columbia Circuit which may set aside the order if it is not 'supported by the preponderance of the evidence.'6 Upon motion of a party, the Court of Appeals may order the Board to take additional evidence. Of course, if the Board and the Court of Appeals find that the Act does cover appellants, they may challenge its constitutionality either as applied or on its face. Judgments of the Court of Appeals are reviewable by this Court on certiorari.7
3
It is evident that Congress has provided a way for appellants to raise their constitutional claims. But appellants, denying that they are within the coverage of the Act, wish to litigate these claims in an injunctive proceeding in the District Court. The effect would be that important and difficult constitutional issues would be decided devoid of factual context and before it was clear that appellants were covered by the Act.8 We have previously refused to decide the constitutionality of the very provisions involved here because it was not clear that the Act would be applied to the objecting parties. American Committee for Protection of Foreign Born v. SACB, 380 U.S. 503, 85 S.Ct. 1148, 14 L.Ed.2d 39; Veterans of the Abraham Lincoln Brigade v. SACB, 380 U.S. 513, 85 S.Ct. 1153, 14 L.Ed.2d 46. Similarly, the District Court should not be forced to decide these constitutional questions in a vacuum.
4
Appellants rely on Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), to support their contention that the usual rule requiring exhaustion of administrative remedies9 should not apply in this case. In Dombrowski, however, the constitutional issues were presented in a factual context. Upon a record demonstrating a history of harassment of appellants in connection with their exercise of First Amendment rights, the Court ordered a federal district court to issue an injunction against pending criminal prosecutions under state statutes. This Court held the statutes 'void on their face,' and it concluded that, in the circumstances of that case, if appellants were required to submit to a criminal prosecution, the injury to First Amendment freedoms which had already taken place would be compounded. Accordingly, the Court allowed appellants to assert their claims in an equitable proceeding.
5
In this case, the complaint and the affidavits constitute no more than conclusory allegations that the purpose of the threatened enforcement of the Act was to 'harass' appellants and that harassment was the intended result of the Attorney General's announcement that he had filed a petition with the SACB. Further, appellants are not being forced to assert their claims in a criminal prosecution. As the court below made clear, 'Congress has made careful provision that no tangible sanction can come into play until the facts have been explored in open hearing (before the Board) and the courts have scrutinized what they show, both in their adequacy to support a registration order and in their constitutional impact upon the statute itself.'10 In the context of this case, we decline to require the court below to permit substitution of an injunctive proceeding for the civil proceeding which Congress has specifically provided.
6
The motion to affirm is granted and the judgment is affirmed.
7
Affirmed.
8
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
9
I believe that the provisions of the Act now challenged are void on their face, that there are no factual issues to be resolved which should condition the outcome of the litigation, and that therefore there is no reason for the lower court to abstain from exercising its jurisdiction.
10
The statute defines 'Communist-front organization' as one which is substantially directed, dominated, or controlled by a Communist-action organization and which is primarily operated for the purpose of giving aid and support to a Communist-action organization, a Communist foreign government, or the world Communist movement. 50 U.S.C. § 782(4). A Communist-front organization, as defined, is not a group engaged in action but in advocacy; or if action is included, so is advocacy, for § 781(15) in describing the growth of the Communist movement speaks of those who seek 'converts far and wide by an extensive system of schooling and indoctrination.'
11
Legislation curbing or penalizing advocacy even of ideas we despise is, I submit, at war with the First Amendment. Under our Constitution one's belief or ideology is of no concern to government. One can think as he likes, embrace any philosophy he chooses, and select the politics that best fits his ideals or needs. That is all implicit in the First Amendment rights of assembly, petition, and expression. Those rights merely enforce, protect, or sanction the beliefs or ideology to which one is committed. So does the right of association which we have said over and again to be part and parcel of those First Amendment rights. Basic in this scheme of values is the immunity of beliefs, ideas, and ideology from government inquiry, probing, or surveillance.1
12
Jefferson expressed the American constitutional theory:
13
'(T)he opinions of men are not the object of civil government, nor under its jurisdiction * * *. (I)t is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order * * *.' Jefferson, A Bill For Establishing Religious Freedom, in The Jeffersonian Cyclopedia 976 (1900).
14
That is my reading of the First Amendment. Those who can be officially pilloried or punished for having a particular philosphic or political creed are effectively deterred from exercising First Amendment rights.
15
I see no constitutional method whereby the Government can punish or penalize one for 'being a Communist' or 'supporting Communists' or 'promoting communism.' Communism, as an ideology, embraces a broad array of ideas. To some it has appeal because the state owns the main means of production, with the result that all phases of national life are in the public sector, guaranteeing full employment. To some communism means a medical care program that reaches to the lowest levels of society. To others the communal way of life, even in agriculture, means a fuller life for the average person. To some the flowering of the dance, music, painting, sculpture, and even athletics is possible only when those arts and activities move from the private to the public sector. To some there can be no equivalent of the unemployment insurance, old age insurance, and social security that obtain in a socialized state. To others communism is a commitment to the atheistic philosophy and way of life. To still others, adherence to communism means a commitment to use force and violence, if necessary, to achieve that kind of socialist state. And to some of course it means all of the projects I have enumerated plus perhaps others as well.
16
The word 'revolution' has of course acquired a subversive connotation in modern times. But it has roots that are eminently respectable in American history.2 This country is the product of revolution. Our very being emphasizes that when grievances pile high and there are no political remedies, the exercise of sovereign powers reverts to the people. Teaching and espousing revolution—as distinguished from indulging in overt acts are therefore obviously within the range of the First Amendment.
17
Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, decided in 1951 at the peak of the 'notorious 'witch hunt' in this Nation, is to the contrary. My Brother Black and I, the only remaining members of the Court who sat in that case, dissented. The crime charged and sustained was a conspiracy to teach and advocate the Marxist creed, including the overthrow of the Government by force or violence. Id., at 497, 71 S.Ct. at 861. No overt acts designed to overthrow the Government were charged; no attempt to overthrow was charged. The crime was an agreement to teach, advocate, and espouse a creed that was and is noxious to most Americans.
18
I cannot believe that Dennis has any continuing vitality. It is out of line with Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131, where a fascist was held to be protected by the First Amendment for espousing his creed, which most Americans find as obnoxious as communism.
19
It is not conceivable that the Court that decided Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 would approve Dennis. In Dombrowski a state prosecution for subversion was enjoined. The people prosecuted were fostering civil rights for Negroes in the South. While it would have been possible to win the state case on constitutional grounds, the Court held that the trial itself would result in irreparable injury. We said:
20
'Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights. For free expression—of transcendent value to all society, and not merely to those exercising their rights might be the loser.' Id., at 486, 85 S.Ct. at 1121.
21
A Communist-front organization under the present Act is a group promoting the world Communist movement. See 50 U.S.C. § 782(4). If it were defined as a group which, for example, collected arms for the violent overthrow of government, the case would be free of First Amendment problems. But here as in Dombrowski the statute is overbroad, bringing within its scope advocacy, espousal, and teaching of a creed or of causes for which the Communist movement stands.
22
If an organization is classified a Communist front, serious consequences follow: employment of its members is restricted, § 784; application for or use of passports is made illegal, § 785; registration is required, § 786; use of the mails and of the radio and TV is curtailed, § 789; tax exemptions are denied, § 790. At least some of these provisions are unconstitutional under our decisions as bills of attainder or as a denial of First and Fifth Amendment rights. Yet vindication would come only after long and protracted hearings and appeals. Meanwhile there would be a profound 'chilling' effect on the exercise of First Amendment rights3 within the principle of Dombrowski v. Pfister.
23
The members of the DuBois Clubs may or may not be Communists. But as I said, I see no possibility under our Constitution of penalizing one for holding or expressing that or any other belief. The DuBois Clubs may advocate causes that parallel Communist though or Communist policies.4 They appear, for example, to advocate the termination of the hostilities in Vietnam. But so far as advocacy is concerned, I see no constitutional way of putting restraints on them so long as we have the First Amendment.
24
Harassing them by public hearings and by probing into their beliefs and attitudes, pillorying them for their minority views by exposing them to the hearings under the Act—these actions will have the same 'chilling' effect as the Court held the trial in Dombrowski would have had.
25
First Amendment values ride on what we do today. If government can investigate ideas, beliefs, and advocacy at the left end of the spectrum, I see no reason why it may not investigate at any other part of the spectrum. Yet as I read the Constitution, one of its essential purposes was to take government off the backs of people and keep it off. There is the line between action on the one hand and ideas, beliefs, and advocacy on the other. The former is a legitimate sphere for legislation. Ideas, beliefs, and advocacy are beyond the reach of committees, agencies, Congress, and the courts.
26
MR. JUSTICE BLACK and I adhere to the views we expressed in the other cases we have had under this Act (see, e.g., Communist Party v. SACB, 367 U.S. 1, 137, 169, 81 S.Ct. 1357, 1431, 1448, 6 L.Ed.2d 625; Aptheker v. Secretary of State, 378 U.S. 500, 517, 519, 84 S.Ct. 1659, 1670, 12 L.Ed.2d 992; American Committee v. SACB, 380 U.S. 503, 506, 511, 85 S.Ct. 1148, 1150, 1155, 14 L.Ed.2d 39, 41; Brigade Veterans v. SACB, 380 U.S. 513, 514, 85 S.Ct. 1153, 14 L.Ed.2d 46) and would reverse the judgment below.
1
The term 'Communist-front organization' is defined in § 3(4) of the Internal Security Act of 1950, 64 Stat. 989, 50 U.S.C. § 782(4). Communist-front organizations are required to register with the Attorney General. 50 U.S.C. § 786. When a Communist-front organization does not register, the Attorney General may petition the SACB for an order requiring registration. 50 U.S.C. § 792.
2
On April 27, 1966, appellants also filed with the Board a motion to dismiss the Attorney General's petition. The Board denied this motion and, subsequently, on August 18, 1966, appellants filed an answer to the Attorney General's petition. According to the District Court, the DuBois Clubs '(1) denied generally that it was a Communist-front organization within the meaning of the Act, and (2) denied various allegations of fact made by the Attorney General in the petition.'
3
Appellants attacked the provisions, 50 U.S.C. §§ 786(b), (c), and (d), 'on their face and as applied' as violation of Art. I, § 9, cl. 3, Art. III, and the First, Fifth, Eighth, Ninth, Tenth, Thirteenth, Fourteenth, and Fifteenth Amendments of the Constitution. Although the Communist-front provisions have been upheld by the District of Columbia Circuit, American Committee for Protection of Foreign Born v. SACB, 117 U.S.App.D.C. 393, 401, 331 F.2d 53, 61 (1963), reversed on other grounds, 380 U.S. 503, 85 S.Ct. 1148, 14 L.Ed.2d 39 (1965); Veterans of the Abraham Lincoln Brigade v. SACB, 117 U.S.App.D.C. 404, 413, 331 F.2d 64, 73 (1963), reversed on other grounds, 380 U.S. 513, 85 S.Ct. 1153, 14 L.Ed.2d 46 (1965); Weinstock v. SACB, 118 U.S.App.D.C. 1, 331 F.2d 75 (1963); Jefferson School of Social Science v. SACB, 118 U.S.App.D.C. 2, 331 F.2d 76 (1963), their constitutionality has not been specifically determined by this Court. American Committee for Protection of Foreign Born v. SACB, 380 U.S. 503, 85 S.Ct. 1148, 14 L.Ed.2d 39 (1965); Veterans of the Abraham Lincoln Brigade v. SACB, 380 U.S. 513, 85 S.Ct. 1153, 14 L.Ed.2d 46 (1965). Cf. Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964).
4
However, the District Court did stay further Board proceedings pending this Court's disposition of the case.
5
50 U.S.C. § 794(a).
6
See National Council of American-Soviet Friendship v. SACB, 116 U.S.App.D.C. 162, 322 F.2d 375 (1963).
7
See 50 U.S.C. §§ 792(d), (g), 793(a).
8
Cf. Rescue Army v. Municipal Court, 331 U.S. 549, 568—585, 67 S.Ct. 1409, 1419—1427, 91 L.Ed. 1666 (1947).
9
See, e.g., Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50—51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938); Macauley v. Waterman S.S. Corp., 327 U.S. 540, 543—545, 66 S.Ct. 712, 713, 9 L.Ed. 839 (1946); Aircraft & Diesel Corp. v. Hirsch, 331 U.S. 752, 771—774, 67 S.Ct. 1493, 1502—1504, 91 L.Ed. 1796 (1947); Allen v. Grand Cent. Aircraft Co., 347 U.S. 535, 553, 74 S.Ct. 745, 755, 98 L.Ed. 933 (1954); Boire v. Greyhound Corp., 376 U.S. 473, 481—482, 84 S.Ct. 894, 898, 11 L.Ed.2d 849 (1964).
10
See 50. U.S.C. §§ 793(b), 794.
1
Hannah Arendt writs:
'The word 'people' retained for them (the Founding Fathers) the meaning of manyness, of the endless variety of a multitude whose majesty resided in its very plurality. Opposition to public opinion, namely to the potential unanimity of all, was therefore one of the many things upon which the men of the American Revolution were in complete agreement; they knew that the public realm in a republic was constituted by an exchange of opinion between equals, and that this realm would simply disappear the very moment an exchange became superfluous because all equals happened to be of the same opinion.' On Revolution 88—89 (1963).
2
'America had become the symbol of a society without poverty long before the modern age in its unique technological development had actually discovered the means to abolish that abject misery of sheer want which had always been held to be eternal. And only after this had happened and had become known to European mankind could the social question and the rebellion of the poor come to play a truly revolutionary role. The ancient cycle of sempiternal recurrences had been based upon an assumedly 'natural' distinction of rich and poor; the factual existence of American society prior to the outbreak of the Revolution had broken this cycle once and for all.' H. Arendt, On Revolution 15 16 (1963).
3
No such question was presented in American Committee for Protection of Foreign Born v. SACB, 380 U.S. 503, 85 S.Ct. 1148, 14 L.Ed.2d 39 and Veterans of the Abraham Lincoln Brigade v. SACB, 380 U.S. 513, 85 S.Ct. 1153, 14 L.Ed.2d 46. Those cases were reviews of the actions of the Board and did not involve the present question, whether it is necessary to exhaust administrative remedies as a prerequisite to challenging the Act as being invalid on its face.
4
On the vices of parallelism see United States v. Lattimore, 127 F.Supp. 405 (D.C.D.C.), aff'd by equally divided court, 98 U.S.App.D.C. 77, 232 F.2d 334 (en banc).
| 89
|
389 U.S. 299
88 S.Ct. 445
19 L.Ed.2d 537
UNITED STATES, Petitioner,v.Homer O. CORRELL et ux.
No. 113.
Argued Nov. 14, 1967.
Decided Dec. 11, 1967.
Sol, Gen. Erwin N. Griswold, for petitioner.
William L. Taylor, Jr., Chattanooga, Tenn., for respondents.
Mr. Justice STEWART delivered the opinion of the Court.
1
The Commissioner of Internal Revenue has long maintained that a taxpayer traveling on business may deduct the cost of his meals only if his trip requires him to stop for sleep or rest. The question presented here is the validity of that rule.
2
The respondent in this case was a traveling salesman for a wholesale grocery company in Tennessee.1 He customarily left home early in the morning, ate breakfast and lunch on the road, and returned home in time for dinner. In his income tax returns for 1960 and 1961, he deducted the cost of his morning and noon meals as 'traveling expenses' incurred in the pursuit of his business 'while away from home' under § 162(a)(2) of the Internal Revenue Code of 1954.2 Because the respondent's daily trips required neither sleep nor rest, the Commissioner disallowed the deductions, ruling that the cost of the respondent's meals was a 'personal, living' expense under § 2623 rather than a travel expense under § 162(a)(2). The respondent paid the tax, sued for a refund in the District Court, and there received a favorable jury verdict.4 The Court of Appeals for the Sixth Circuit affirmed, holding that the Commissioner's sleep or rest rule is not 'a valid regulation under the present statute.' 369 F.2d 87, 90. In order to resolve a conflict among the circuits on this recurring question of federal income tax administration,5 we granted certiorari. 388 U.S. 905, 87 S.Ct. 2115, 18 L.Ed.2d 1346.
3
Under § 162(a)(2), taxpayers 'traveling * * * away from home in the pursuit of a trade or business' may deduct the total amount 'expended for meals and lodging.'6 As a result, even the taxpayer who incurs substantial hotel and restaurant expenses because of the special demands of business travel receives something of a windfall, for at least part of what he spends on meals represents a personal living expense that other taxpayers must bear without receiving any deduction at all.7 Not surprisingly, therefore, Congress did not extend the special benefits of § 162(a)(2) to every conceivable situation involving business travel. It made the total cost of meals and lodging deductible only if incurred in the course of travel that takes the taxpayer 'away from home.' The problem before us involves the meaning of that limiting phrase.
4
In resolving that problem, the Commissioner has avoided the wasteful litigation and continuing uncertainty that would inevitably accompany any purely case-by-case approach to the question of whether a particular taxpayer was 'away from home' on a particular day.8 Rather than requiring 'every meal-purchasing taxpayer to take pot luck in the courts,'9 the Commissioner has consistently construed travel 'away from home' to exclude all trips requiring neither sleep nor rest,10 regardless of how many cities a given trip may have touched,11 how many miles it may have covered,12 or how many hours it may have consumed.13 By so interpreting the statutory phrase, the Commissioner has achieved not only ease and certainty of application but also substantial fairness, for the sleep or rest rule places all one-day travelers on a similar tax footing, rather than discriminating against intracity travelers and commuters, who of course cannot deduct the cost of the meals they eat on the road. See Commissioner Internal Revenue v. Flowers, 326 U.S. 465, 66 S.Ct. 250, 90 L.Ed. 203.
5
Any rule in this area must make some rather arbitrary distinctions,14 but at least the sleep or rest rule avoids the obvious inequity of permitting the New Yorker who makes a quick trip to Washington and back, missing neither his breakfast nor his dinner at home, to deduct the cost of his lunch merely because he covers more miles than the salesman who travels locally and must finance all his meals without the help of the Federal Treasury.15 And the Commissioner's rule surely makes more sense than one which would allow the respondent in this case to deduct the cost of his breakfast and lunch simply because he spends a greater percentage of his time at the wheel than the commuter who eats breakfast on his way to work and lunch a block from his office.
6
The Court of Appeals nonetheless found in the 'plain language of the statute' an insupperable obstacle to the Commissioner's construction. 369 F.2d 87, 89. We disagree. The language of the statute—'meals and lodging * * * away from home'—is obviously not self-defining.16 And to the extent that the words chosen by Congress cut in either direction, they tend to support rather than defeat the Commissioner's position, for the statute speaks of 'meals and lodging' as a unit, suggesting—at least arguably—that Congress contemplated a deduction for the cost of meals only where the travel in question involves lodging as well.17 Ordinarily, at least, only the taxpayer who finds it necessary to stop for sleep or rest incurs significantly higher living expenses as a direct result of his business travel,18 and Congress might well have thought that only taxpayer in that category should be permitted to deduct their living expenses while on the road.19 In any event, Congress certainly recognized, when it promulgated § 162(a)(2), that the Commissioner had so understood its statutory predecessor.20 This case thus comes within the settled principle that 'Treasury regulations and interpretations long continued without substantial change, applying to unamended or substantially ree nacted statutes, are deemed to have received congressional approval and have the effect of law.' Helvering v. Winmill, 305 U.S. 79, 83, 59 S.Ct. 45, 47, 83 L.Ed. 52; Fribourg Nav. Co. v. Commissioner, 383 U.S. 272, 283, 86 S.Ct. 862, 869, 15 L.Ed.2d 751.
7
Alternatives to the Commissioner's sleep or rest rule are of course available.21 Improvements might be imagined.22 But we do not sit as a committee of revision to perfect the administration of the tax laws. Congress has delegated to the Commissioner, not to the courts, the task of prescribing 'all needful rules and regulations for the enforcement' of the Internal Revenue Code. 26 U.S.C. § 7805(a). In this area of limitless factual variations 'it is the province of Congress and the Commissioner, not the courts, to make the appropriate adjustments.' Commissioner v. Stidger, 386 U.S. 287, 296, 87 S.Ct. 1065, 1071, 18 L.Ed.2d 53. The rule of the judiciary in cases of this sort begins and ends with assuring that the Commissioner's regulations fall within his authority to implement the congressional mandate in some reasonable manner. Because the rule challenged here has not been shown deficient on that score, the Court of Appeals should have sustained its validity. The judgment is therefore reversed.
8
Reversed.
9
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
10
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice FORTAS, concur, dissenting.
11
The statutory words 'while away from home,' 26 U.S.C. § 162(a)(2), may not in my view be shrunken to 'overnight' by administrative construction or regulations. 'Overnight' injects a time element in testing deductibility, while the statute speaks only in terms of geography. As stated by the Court of Appeals:
12
'In an era of supersonic travel, the time factor is hardly relevant to the question of whether or not travel and meal expenses are related to the taxpayer's business and cannot be the basis of a valid regulation under the present statute.' Correll v. United States, 369 F.2d 87, 89—90.
13
I would affirm the judgment below.
1
Since Mr. and Mrs. Correll filed a joint income tax return, both are respondents here. Throughout this opinion, however, the term 'respondent' refers only to Mr. Correll.
2
'(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 amounts 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.).
3
'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.
4
After denying the Government's motion for a directed verdict, the District Judge charged the jury that it would have to 'determine under all the facts of this case whether or not' the Commissioner's rule was 'an arbitrary regulation as applied to these plaintiffs under the facts in this case.' He told the jury to consider whether the meal expenses were 'necessary for the employee to properly perform the duties of his work.' 'Should he have eaten them at his home rather than * * * away from home in order to properly carry on his business or to perform adequately his duties as an employee meals * * * proximately results from 'You are instructed that the cost of meals while on one-day business trips away from home need not be incurred while on an overnight trip to be deductible, so long as the expense of such meals * * roximately results from the carrying on the particular business involved and has some reasonable relation to that business.' Under these instructions, the jury found for the respondent. The District Court denied the Government's motion for judgment notwithstanding the verdict.
5
The decision below conflicts with that of the First Circuit in Commissioner, Internal Revenue, v. Bagley, 374 F.2d 204, but is in accord with that of the Eighth Circuit in Hanson v. Commissioner, Internal Revenue, 298 F.2d 391, reaffirmed in United States v. Morelan, 8 Cir., 356 F.2d 199, 208—210.
6
Prior to the enactment in 1921 of what is now § 162(a)(2), the Commissioner had promulgated a regulation allowing a deduction for the cost of meals and lodging away from home, but only to the extent that this cost exceeded 'any expenditures ordinarily required for such purposes when at home.' Treas.Reg. 45 (1920 ed.), Art. 292, 4 Cum.Bull. 209 (1921). Despite its logical appeal, the regulation proved so difficult to administer that the Treasury Department asked Congress to grant a deduction for the 'entire amount' of such meal and lodging expenditures. See Statement of Dr. T. S. Adams, Tax Adviser, Treasury Department, in Hearings on H.R. 8245 before the Senate Committee on Finance, 67th Cong., 1st Sess., at 50, 234—235 (1921). Accordingly, § 214(a)(1) of the Revenue Act of 1921, c. 136, 42 Stat. 239, for the first time included the language that later became § 162(a)(2). See n. 2, supra. The section was amended in a respect not here relevant by the Revenue Act of 1962, § 4(b), 76 Stat. 976.
7
Because § 262 makes 'personal, living, or family expenses' nondeductible, see n. 3, supra, the taxpayer whose business requires no travel cannot ordinarily deduct the cost of the lunch he eats away from home. But the taxpayer who can bring himself within the reach of § 162(a)(2) may deduct what he spends on his noontime meal although it costs him no more, and relates no more closely to his business, than does the lunch consumed by his less mobile counterpart.
8
Such was the approach of the Tax Court in Bagley v. Commissioner, 46 T.C. 176, 183, vacated, 374 F.2d 204; of the Eighth Circuit in Hanson v. Commissioner, 298 F.2d 391, 397; and evidently of the Sixth Circuit in this case, see 369 F.2d 87, 90.
9
Commissioner v. Bagley, 1 Cir., 374 F.2d 204, 207.
10
The Commissioner's interpretation, first expressed in a 1940 ruling, I.T. 3395, 1940—2 Cum.Bull. 64, was originally known as the overnight rule. See Commissioner v. Bagley, supra, at 205.
11
The respondent lived in Fountain City, Tennessee, some 45 miles from his employer's place of business in Morristown. His territory included restaurants in the cities of Madisonville, Engelwood, Etowah, Athens, Sweetwater, Lake City, Caryville, Jacksboro, La Follette, and Jellico, all in eastern Tennessee.
12
The respondent seldom traveled farther than 55 miles from his home, but he ordinarily drove a total of 150 to 175 miles daily.
13
The respondent's employer required him to be in his sales territory at the start of the business day. To do so, he had to leave Fountain City at about 5 a.m. He usually finished his daily schedule by 4 p.m., transmitted his orders to Morristown, and returned home by 5:30 p.m.
14
The rules proposed by the respondent and by the two amici curiae filing briefs on his behalf are not exceptional in this regard. Thus, for example, the respondent suggests that § 162(a)(2) be construed to cover those taxpayers who travel outside their 'own home town,' or outside 'the greater * * * metropolitan area' where they reside. One amicus stresses the number of 'hours spent and miles traveled away from the taxpayer's principal post of duty,' suggesting that some emphasis should also be placed upon the number of meals consumed by the taxpayer 'outside the general area of his home.'
15
See Amoroso v. Commissioner, 1 Cir., 193 F.2d 583.
16
The statute applies to the meal and lodging expenses of taxpayers 'traveling * * * away from home.' The very concept of 'traveling' obviously requires a physical separation from one's house. To read the phrase 'away from home' as broadly as a completely literal approach might permit would thus render the phrase completely redundant. But of course the words of the statute have never been so woodenly construed. The commuter, for example, has never been regarded as 'away from home' within the meaning of § 162(a)(2) simply because he has traveled from his residence to his place of business. See Commissioner v. Flowers, 326 U.S. 465, 473, 66 S.Ct. 250, 254, 90 L.Ed. 203. More than a dictionary is thus required to understand the provision here involved, and no appeal to the 'plain language' of the section can obviate the need for further statutory construction.
17
See Commissioner v. Bagley, 1 Cir., 374 F.2d 204, 207, n. 10.
18
The taxpayer must ordinarily 'maintain a home for his family at his own expense even when he is absent on business,' Barnhill v. Commissioner Internal Revenue, 4 Cir., 148 F.2d 913, 917, 159 A.L.R. 1210, and if he is required to stop for sleep or rest, 'continuing costs incurred at a permanent place of abode are duplicated.' James v. United States, 9 Cir., 308 F.2d 204, 206. The same taxpayer, however, is unlikely to incur substantially increased living expenses as a result of business travel, however far he may go, so long as he does not find it necessary to stop for lodging. One Amicus curiae brief filed in this case asserts that 'those who travel considerable distances such as (on) a one-day jet trip between New York and Chicago' spend more for 'comparable meals (than) those who remain at their home base' and urges that all who travel 'substantial distances' should therefore be permitted to deduct the entire cost of their meals. It may be that eating at a restaurant costs more than eating at home, but it cannot seriously be suggested that a taxpayer's bill at a restaurant mysteriously reflects the distance he has traveled to get there.
19
The court below thought that '(i)n an era of supersonic travel, the time factor is hardly relevant to the question of whether or not * * * meal expenses are related to the taxpayer's business * * *.' 369 F.2d 87, 89—90. But that completely misses the point. The benefits of § 162(a)(2) are limited to business travel 'away from home,' and all meal expenses incurred in the course of such travel are deductible, however unrelated they may be to the taxpayer's income-producing activity. To ask that the definition of 'away from home' be responsive to the business necessity of the taxpayer's meals is to demand the impossible.
20
In considering the proposed 1954 Code, Congress heard a taxpayer plea for a change in the rule disallowing deductions for meal expenses on one-day trips. Hearings on General Revision of the Internal Revenue Code before the House Committee on Ways and
Means, 83d Cong., 1st Sess., pt. 1, at 216—219 (1953); Hearings on H.R. 8300 before the Senate Committee on Finance, 83d Cong., 2d Sess., pt. 4, at 2396 (1954). No such change resulted.
In recommending § 62(2)(C) of the 1954 Code, permitting employees to deduct certain transportation expenses in computing adjusted gross income, the Senate Finance Committee stated:
'At present, business transportation expenses can be deducted by an employee in arriving at adjusted gross income only if they are reimbursed by the employer or if they are incurred while he was away from home overnight. * * *
'Because these expenses, when incurred, usually are substantial, it appears desirable to treat employees in this respect like self-employed persons. For this reason both the House and your committee's bill permit employees to deduct business transportation expenses in arriving at adjusted gross income even though the expenses are not incurred in travel away from home or not reimbursed by the employer. * * *' S.Rep.No. 1622, 83d Cong., 2d Sess., 9 (1954) (emphasis added), U.S.Code Cong. & Admin.News 1954, p. 4638. See also H.R.Rep. No. 1337, 83d Cong., 2d Sess., 9 (1954), U.S.Code Cong. & Admin.News 1954 p. 4033.
And in discussing § 120 of the 1954 Code (repealed by 72 Stat. 1607 (1958)), which allowed policemen to exclude from taxable income up to $5 per day in meal allowances, both the House and Senate Reports noted that, under the prevailing rule, police officers could deduct expenses over the $5 limit of § 120 'for meals while away from home overnight.' H.R.Rep.No. 1337, 83d Cong., 2d Sess., A40 (1954) (emphais added), U.S.Code Cong. & Admin.News 1954, p. 4176; S.Rep.No. 1622, 83d Cong., 2d Sess., 191 (1954), U.S.Code Cong. & Admin.News 1954, p. 4826 (emphasis added). Thus Congress was well aware of the Commissioner's rule when it retained in § 162(a)(2) the precise terminology it had used in 1921.
21
See n. 14, supra.
22
See, e.g., the 1963 proposal of the Treasury Department, in Hearings on the President's 1963 Tax Message before the House Committee on Ways and Means, 88th Cong., 1st Sess., pt. 1, at 98 (1963).
| 1112
|
389 U.S. 421
88 S.Ct. 578
19 L.Ed.2d 651
Nelson A. ROCKEFELLER, Governor of New York, et al.v.David I. WELLS et al.
No. 691.
Supreme Court of the United States
October Term, 1967.
December 18, 1967
Louis J. Lefkowitz, Atty. Gen. of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., and George D. Zuckerman, Asst. Atty. Gen., for appellants.
Isidore Levine, for appellees.
PER CURIAM.
1
The motion to affirm is granted and the judgment is affirmed.
2
Mr. Justice HARLAN, dissenting.
3
This action was brought by appellees under the Civil Rights Act, 42 U.S.C. §§ 1983, 1988, for declaratory and other relief. Their complaint alleged that New York's congressional districting statute does not conform to the requirements of Art. I, § 2, of the United States Constitution, as those requirements are defined in Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481. A three-judge court was convened.
4
The court found, on the basis of 1960 census statistics, that the population of one of New York's 41 congressional districts varied from the average population of the districts by 15.1%, and that 12 other districts varied from the population average by as much as 10%. It concluded that such a variation from average, without a suitable explanation, 'violates constitutional requirements.' 273 F.Supp. 984, at 989. The court noted that there have been 'substantial' population changes in these districts since 1960, and that complete accuracy in redistricting must await the results of the 1970 census, but reasoned that a suitable compromise would be to require redistricting immediately, premised on the best population figures now available. Revisions could then be made when the 1970 census statistics were released. This Court simply affirms, without elaboration or opinion.
5
There are, in my opinion, two principal issues here worthy of plenary consideration. First, the District Court thought it 'too clear for debate' that this districting statute 'violates constitutional requirements as enunciated by the Supreme Court.' 273 F.Supp., at 989. There are few issues in reapportionment cases that are clear beyond debate, and, with respect, the invalidity of this statute is certainly not among them. It is true that variations of as much as 18.28% were
6
Presumably the size of the numerical variation is not alone decisive,1 but if the 'particular circumstances of the case,' Reynolds v. Sims, supra, 377 U.S. at 578, 84 S.Ct. at 1390; Swann v. Adams, supra, 385 U.S. at 445, 87 S.Ct. 569, may be crucial to the validity of districting statutes, then surely the Court should endeavor to define what such circumstances are, and to indicate how they are relevant. Instead, the Court more and more often disposes of reapportionment cases summarily, see e. g., Toombs v. Fortson, supra; Duddleston v. Grills, 385 U.S. 455, 87 S.Ct. 611, 17 L.Ed.2d 508; Kirkpatrick v. Preisler, 385 U.S. 450, 87 S.Ct. 613, 17 L.Ed.2d 511; Lucas v. Rhodes, 389 U.S. 212, 88 S.Ct. 416, 19 L.Ed.2d 423; and when the Court does issue an opinion, it is content simply to recite that such circumstances may be relevant without undertaking any elucidation. See, e. g., Swann v. Adams, supra. All this has the effect of leaving the state legislatures,2 the lower courts, and even Congress3 without meaningful guidance.
7
Second, the confusion created by the Court's reticence is compounded, in cases in which it is held that a districting statute does not satisfy constitutional requirements, by uncertainty as to the appropriate next step. See, e.g., Lucas v. Rhodes, supra. The District Court here noted that the Court's cases provided '[l]ittle guidance or help,' but concluded, nonetheless, that immediate redistricting should be ordered, based on the best available population figures. It thought that this expedient was in the pattern set by Swann v. Adams, 383 U.S. 210, 86 S.Ct. 767, 15 L.Ed.2d 707. Swann, however, was merely a brief per curiam opinion, which did not purport to establish any general rule on appropriate remedies. As the elections of 1968 approach, it seems to me that the time has come for this Court to provide clearer guidance to the lower courts on the proper remedy in reapportionment cases. More particularly, some indication should be given as to what part, if any, 1960 census figures are to play, alone or in combination with later, albeit incomplete or unverified, population figures. See Lucas v. Rhodes, supra.
8
I would note probable jurisdiction, and set the case for argument.
1
I note, however, that the District Court in Preisler v. Secretary of State of Missouri, 257 F.Supp. 953, said specifically that 'population and population alone is the sole standard for congressional representation.' Id., at 973. This Court affirmed without opinion Kirkpatrick v. Preisler, 385 U.S. 450, 87 S.Ct. 613, 17 L.Ed.2d 511. See also Bush v. Martin, 224 F.Supp. 499, 511, aff'd, 376 U.S. 222, 84 S.Ct. 709, 11 L.Ed.2d 656.
2
The New York Legislature, for example, made careful efforts to comply with the constitutional requirements, as they had been enunciated by this Court. The Joint Legislative Committee on reapportionment thus expressly recognized 'the absence of Federal and State constitutional and statutory standards,' but concluded that 'the most important standard is substantial equality of population.' Interim Report of the Joint Legislative Committee on Reapportionment, 1961 N.Y.Leg.Doc.No. 45, p. 4. It added that '[w]hile exact equality of population is the ideal, it is an ideal that, for practical reasons, can never be attained. Some variation from it will always be necessary. The question arises as to what is a permissible fair variation.' Ibid.
3
The House Committee on the Judiciary, for example, reported favorably in 1965 on a bill which was intended to implement the requirements of Wesberry v. Sanders, supra, by creating a series of standards for the apportionment of congressional districts. The Committee noted that '[t]he courts * * * have been reluctant to prescribe standards * * *.' H.R.Rep.No. 140, 89th Cong., 1st Sess., 2. One standard included in the bill was a maximum permissible variation of 15% above or below the average population of the congressional districts within a State. Id., at 2-3. Given the present state of the law in this area, it is difficult to imagine how a legislator could sensibly decide whether such a maximum variation satisfied applicable constitutional requirements. Indeed, Representative Kastenmeier dissented from the Committee's report, noting that 'there is serious doubt whether H.R. 5505 can, in light of the Wesberry case, withstand constitutional attack.' Id., at 5.
| 12
|
389 U.S. 404
88 S.Ct. 523
19 L.Ed.2d 634
Isaac SIMS, Jr.v.GEORGIA.
No. 678.
Dec. 18, 1967.
Jack Greenberg, James M. Nabrit III, Anthony G. Amsterdam and Howard Moore, Jr., for petitioner.
PER CURIAM.
1
This case is before us for the second time. Last Term we granted certiorari to consider five constitutional questions raised by petitioner in challenging his conviction for rape and his accompanying death sentence. 384 U.S. 998, 86 S.Ct. 1953, 16 L.Ed.2d 1013 (1966). Because we decided the case on the ground that petitioner had not received the hearing on the voluntariness of a confession introduced against him required by our decision in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), we did not reach the other issues argued by the parties. 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967).
2
On remand the case was submitted to the judge who had presided at petitioner's original trial on the basis of the printed record previously before this Court. On that record alone the trial judge determined that petitioner's confession had been voluntary and denied a new trial. The trial court specifically refused to pass on any of the other questions previously briefed and argued here, holding that the prior rulings on these issues by the Georgia Supreme Court constituted the law of the case. The Georgia Supreme Court affirmed, upholding the trial court on all points.
3
In his present application petitioner raises again two of the four issues not reached in our previous decision in this case: the voluntariness of his confession and the composition of the juries by which he was indicted and tried.* In response to the State's previous argument that 'there was no evidence to make any issue of voluntariness' and therefore there was no need to apply Jackson v. Denno, Mr. Justice Clark stated:
4
'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.' 385 U.S., at 543, 87 S.Ct. at 642.
5
Thus in remanding the case for a hearing on voluntariness we indicated to the State that as the evidence then stood it had failed adequately to rebut petitioner's testimony that he had been subjected to physical violence prior to his confession. The State had every opportunity to offer the police officers, whose failure to testify had already been commented upon here, to contradict petitioner's version of the events. Its failure to do so when given a second chance lends support to the conclusion that their testimony would not, in fact, have rebutted petitioner's.
6
It needs no extended citation of cases to show that a confession produced by violence or threats of violence is involuntary and cannot constitutionally be used against the person giving it. Beecher v. Alabama, 389 U.S. 35, 88 S.Ct. 189, 19 L.Ed.2d 35. The reliance by the State on subsequent warnings made to petitioner prior to his confessing is misplaced. Petitioner had been in the continuous custody of the police for over eight hours and had not been fed at all during that time. He had not been given access to family, friends, or counsel at any point. He is an illiterate, with only a third grade education, whose mental capacity is decidedly limited. Under such circumstances the fact that the police may have warned petitioner of his right not to speak is of little significance. See Beecher v. Alabama, supra, at 37, n. 4, 88 S.Ct., at 190. Compare Fikes v. State of Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1951).
7
Petitioner also contends that he was indicted and tried by juries from which members of his race had been unconstitutionally excluded. The facts reveal that the grand and petit jury lists were drawn from the county tax digests which separately listed taxpayers by race in conformity with then existing Georgia law. Negroes constituted 24.4% of the individual taxpayers in the county. However, they amounted to only 4.7% of the names on the grand jury list and 9.8% of the names on the traverse jury list from which petitioner's grand and petit juries were selected. The State's only response to that showing was to call one of the jury commissioners as a witness; the jury commissioner testified that he or one of the other commissioners knew personally every qualified person in the county and did not discriminate in selecting names for the jury lists. The facts in this case make it virtually indistinguishable from Whitus v. State of Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967). Accordingly, it is clear that the juries by which petitioner was indicted and tried were selected in a manner that does not comport with constitutional requirements. See also Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25.
8
The petition for a writ of certiorari is granted, the judgment of the Supreme Court of Georgia is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
9
It is so ordered.
10
Judgment reversed and case remanded.
*
The State has not filed a response. While ordinarily we would call for a response before deciding a case summarily, the exact issues presented now were briefed and argued fully by the State and petitioner last Term. Since the proceedings below on remand consisted solely of a reconsideration of the printed record previously before us, we see no need for another presentation of the arguments already presented to us by the State.
| 01
|
389 U.S. 375
88 S.Ct. 543
19 L.Ed.2d 614
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.FLEETWOOD TRAILER CO., Inc.
No. 49.
Argued Nov. 8, 1967.
Decided Dec. 18, 1967.
Norton J. Come, Washington, D.C., for petitioner.
Hugh J. Scallon, Los Angeles, Cal, for respondent.
Mr. Justice FORTAS delivered the opinion of the Court.
1
Respondent is a manufacturer of mobile homes. On August 5, 1964, it employed about 110 persons. On August 6, 1964, as a result of a breakdown in collective bargaining negotiations between respondent and the Union,1 about half of the employees struck. Respondent cut back its production schedule from the prestrike figure of 20 units to 10 units per week, and curtailed its orders for raw materials correspondingly. On August 18, the Union accepted the respondent's last contract offer, terminated the strike, and requested reinstatement of the strikers.
2
Respondent explained that it could not reinstate the strikers 'right at that moment' because of the curtailment of production caused by the strike. The evidence is undisputed that it was the company's intention 'at all times' to increase production to the full prestrike volume 'as soon as possible.'2
3
The six strikers involved in this case applied for reinstatement on August 20 and on a number of occasions thereafter. On that date, no jobs were available, and their applications were rejected. However, between October 8 and 16, the company hired six new employees, who had not previously worked for it, for jobs which the striker-applicants were qualified to fill. Later, in the period from November 2 through December 14, the six strikers were reinstated.
4
An NLRB complaint was issued upon charges filed by the six employees. As amended, the complaint charged respondent with unfair labor practices within the meaning of §§ 8(a)(1) and (3) of the National Labor Relations Act (61 Stat. 140, 29 U.S.C. §§ 158(a)(1) and (3)) because of the hiring of new employees instead of the six strikers. After hearing, the Trial Examiner concluded that respondent had discriminated against the strikers by failing to accord them their rights to reinstatement as employees in October when respondent hired others to fill the available jobs. Accordingly, the Examiner recommended that respondent should make each of the six whole for loss of earnings due to its failure to return them to employment at the time of the October hirings and until they were re-employed. A three-member panel of the Board adopted the findings, conclusions and recommendations of the Trial Examiner.3
5
The Board filed a petition for enforcement of the order. The Court of Appeals for the Ninth Circuit, one judge dissenting, denied enforcement. 366 F.2d 126 (1966). It held that the right of the strikers to jobs must be judged as of the date when they apply for reinstatement. Since the six strikers applied for reinstatement on August 20, and since there were no jobs available on that date, the court concluded that the respondent had not committed an unfair labor practice by failing to employ them. We granted certiorari on petition of the Board. 386 U.S. 990, 87 S.Ct. 1305, 18 L.Ed.2d 334 (1967). We reverse.
6
Section 2(3) of the Act (61 Stat. 137, 29 U.S.C. § 152(3)) provides that an individual whose work has ceased as a consequence of a labor dispute continues to be an employee if he has not obtained regular and substantially equivalent employment. If, after conclusion of the strike, the employer refuses to reinstate striking employees, the effect is to discourage employees from exercising their rights to organize and to strike guaranteed by §§ 7 and 13 of the Act (61 Stat. 140 and 151, 29 U.S.C. §§ 157 and 163). Under §§ 8(a)(1) and (3) (29 U.S.C. §§ 158(1) and (3)) it is an unfair labor practice to interfere with the exercise of these rights. Accordingly, unless the employer who refuses to reinstate strikers can show that his action was due to 'legitimate and substantial business justifications,' he is guilty of an unfair labor practice. NLRB v. Great Dane Trailers, 388 U.S. 26, 34, 87 S.Ct. 1792, 1798, 18 L.Ed.2d 1027 (1967). The burden of proving justification is on the employer. Ibid. It is the primary responsibility of the Board and not of the courts 'to strike the proper balance between the asserted business justifications and the invasion of employee rights in light of the Act and its policy.' Id., at 33—34, 87 S.Ct., at 1797. See also NLRB v. Erie Resistor Corp., 373 U.S. 221, 228—229, 235—236, 83 S.Ct. 1139, 1145, 1149, 10 L.Ed.2d 308 (1963). Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), is not an invitation to disregard this rule.4
7
In some situations, 'legitimate and substantial business justifications' for refusing to reinstate striking employees who engaged in an economic strike, have been recognized. One is when the jobs claimed by the strikers are occupied by workers hired as permanent replacements during the strike in order to continue operations. NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345—346, 58 S.Ct. 904, 910—911, 82 L.Ed. 1381 (1938); NLRB v. Plastilite Corp., 375 F.2d 343 (C.A.8th Cir. 1967); Brown & Root, 132 N.L.R.B. 486 (1961).5 In the present case, respondent hired 21 replacements during the strike, compared with about 55 strikers; and it is clear that the jobs of the six strikers were available after the strike. Indeed, they were filled by new employees.6
8
A second basis for justification is suggested by the Board when the striker's job has been eliminated for substantial and bona fide reasons other than considerations relating to labor relations: for example, 'the need to adapt to changes in business conditions or to improve efficiency.'7 We need not consider this claimed justification because in the present case no changes in methods of production or operation were shown to have been instituted which might have resulted in eliminating the strikers' jobs.
9
The Court of Appeals emphasized in the present case the absence of any antiunion motivation for the failure to reinstate the six strikers. But in NLRB v. Great Dane Trailers, supra, which was decided after the Court of Appeals' opinion in the present case, we held that proof of antiunion motivation is unnecessary when the employer's conduct 'could have adversely affected employee rights to some extent' and when the employer does not meet his burden of establishing 'that it was motivated by legitimate objectives.' Id., 388 U.S. at 34, 87 S.Ct., at 1798. Great Dane Trailers determined that payment of vacation benefits to nonstrikers and denial of those payments to strikers carried 'a potential for adverse effect upon employee rights.' Because 'no evidence of a proper motivation appeared in the record,' we agreed with the Board that the employer had committed an unfair labor practice. Id., at 35, 87 S.Ct., at 1798. A refusal to reinstate striking employees, which is involved in this case, is clearly no less destructive of important employee rights than a refusal to make vacation payments. And because the employer here has not shown 'legitimate and substantial business justifications,' the conduct constitutes an unfair labor practice without reference to intent.
10
The Court of Appeals, however, held that the respondent did not discriminate against the striking employees because on the date when they applied for work, two days after the end of the strike, respondent had no need for their services. But it is undisputed that the employees continued to make known their availability and desire for reinstatement, and that 'at all times' respondent intended to resume full production to reactivate the jobs and to fill them.
11
It was clearly error to hold that the right of the strikers to reinstatement expired on August 20, when they first applied. This basic right to jobs cannot depend upon job availability as of the moment when the applications are filed. The right to reinstatement does not depend upon technicalities relating to application. On the contrary, the status of the striker as an employee continues until he has obtained 'other regular and substantially equivalent employment.' (29 U.S.C. § 152(3).) Frequently a strike affects the level of production and the number of jobs. It is entirely normal for striking employees to apply for reinstatement immediately after the end of the strike and before full production is resumed. If and when a job for which the striker is qualified becomes available, he is entitled to an offer of reinstatement. The right can be defeated only if the employer can show 'legitimate and substantial business justifications.' NLRB v. Great Dane Trailers, supra.
12
Accordingly, the judgment of the Court of Appeals is vacated and the cause is remanded for further proceedings consistent with this opinion.8
13
It is so ordered.
14
Judgment vacated and cause remanded.
15
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
16
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, concurring in the result.
17
The issue in this case seems to me rather simpler, and the indicated resolution of it rather more obvious, than the majority opinion implies. A striking worker remains an 'employee' at least as long as his job remains unfilled and he has not found other equivalent work.1 Consequently, as the Court of Appeals stated in this case, 'If their jobs had not been filled or eliminated due to a decrease in production, the strikers were entitled to be treated as employees and to be given preference over other job applicants.' 366 F.2d at 128.
18
In the present case, full production was not resumed until two months after the strikers indicated their willingness to return to work. The only question is whether the six strikers here involved were still at that point 'employees' whom the employer had an affirmative obligation to prefer. The Trial Examiner, whose decision was affirmed by the Board, concluded that the strikers were still employees because the employer had neither abolished nor filled their jobs but intended at all times to return to full production 'as soon as practicable.'2 The Court of Appeals found that the six had lost their employee status because their jobs were unavailable, by reason of a production cutback, at the precise and earlier moment when they offered to return to work. Yet it seems palpably inconsistent with the statutory purpose in preserving the employee status of strikers to hold that the temporary production adjustment occasioned by the strike itself is the equivalent of 'permanent replacement' or 'job abolition' and destroys the right of a striker to preference in rehiring. I would reverse the Court of Appeals on the basis of the Trial Examiner's conclusion that the employer's error was to see the strikers 'only as applicants for employment who were entitled to no more than nondiscriminatory consideration for job openings. But they had a different standing—they were employees.' 153 N.L.R.B., at 428.
19
The problems of 'employer motivation' and 'legitimate business justification' are not, on this view, involved in this case at all. The employer's obligation was not simply to be neutral between strikers and nonstrikers, or between union and nonunion personnel, an obligation that may give rise to questions concerning an employer's reasons, good or bad, for making employment decisions. This employer simply failed, for whatever reasons, to recognize the status given the six strikers by the Act, and its corresponding obligation to them. It did not assert in this Court any 'legitimate business justification' whatever for refusing to rehire the six strikers in October; it claimed only that it did not need a reason. Since this claim was simply wrong, no question of 'motivation' or 'justification' need be reached here.
20
On this basis I concur in the judgment of the Court.
1
The Union is the San Bernardino-Riverside Counties District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO.
2
Respondent's production program was consistent with this intention. During a period of about 18 weeks after the strike, the number of units scheduled per week increased in a steady progression from 10 to 12 to 14 to 16 to 18 to 19 and, finally, to 20 for the week ending December 13, 1964.
3
153 N.L.R.B. 425 (1965). 'The Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise.' Section 3(b), 61 Stat. 139, 29 U.S.C. § 153(b).
4
Although the decision of the Court of Appeals, as we read it, resulted from its erroneous holding that the right of the strikers to jobs depends upon the date of their (first) application for reinstatement, it recited that the Board's General Counsel had failed to show 'that the jobs of complainants had not been absorbed or that they were still available.' Such proof is not essential to establish an unfair labor practice. It relates to justification, and the burden of such proof is on the employer. NLRB v. Great Dane Trailers, supra, 388 U.S. at 34, 87 S.Ct. at 1798. Cf. also NLRB v. Plastilite Corp., 375 F.2d 343, 348 (C.A.8th Cir. 1967).
5
Unfair labor practice strikers are ordinarily entitled to reinstatement even if the employer has hired permanent replacements. See Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 278, 76 S.Ct. 349, 355, 100 L.Ed. 309 (1956).
6
The Trial Examiner found that 'the six job openings in October could have been filled by the striker applicants and, had the Respondent considered them as employees rather than as mere applicants for hire, would have been so filled.'
7
Brief on behalf of NLRB 15.
8
The respondent contends that the Union agreed to a nonpreferential hiring list and thereby waived the rights of the strikers to reinstatement ahead of the new applicants. The Board found that the Union, having lost the strike, merely 'bowed to the (respondent's) decision.' The Court of Appeals did not rule on this point or on the effect, if any, that its resolution might have upon the outcome of this case. Upon remand, the issue will be open for such consideration as may be appropriate.
1
Section 2(3) of the National Labor Relations Act, 61 Stat. 137, 29 U.S.C. § 152(3), reads in part as follows:
'The term 'employee' * * * shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment * * *.'
2
Nothing in the record suggests that the employer believed, or had reason to believe, that the six employees' offers to return to work had been revoked by October.
| 67
|
389 U.S. 332
88 S.Ct. 548
19 L.Ed.2d 564
Alexander TCHEREPNIN et al., Petitioners,v.Joseph E. KNIGHT et al.
No. 104.
Argued Nov. 13, 1967.
Decided Dec. 18, 1967.
Arnold I. Shure, Chicago, Ill., for petitioners.
Philip A. Loomis, Jr., Washington, D.C., for the United States, as amicus curiae.
Charles J. O'Laughlin, Chicago, Ill., and Stuart D. Perlman, New York City, for respondents.
Opinion of the Court by Mr. Chief Justice WARREN announced by Mr. Justice BRENNAN.
1
The narrow question for decision in this case is whether a withdrawable capital share in an Illinois savings and loan association is a 'security' within the meaning of the Securities Exchange Act of 1934, 48 Stat. 881, 15 U.S.C. § 78a et seq.
2
The petitioners are a number of individuals holding withdrawable capital shares in City Savings Association of Chicago, a corporation doing business under the Illinois Savings and Loan Act.1 On July 24, 1964, they filed a class action2 in the United States District Court for the Northern District of Illinois, alleging that the sales of the shares to them by City Savings were void under § 29(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78cc(b), and asking that the sales be rescinded. Named as defendants in the complaint were City Savings, its officers and directors, two state officials who had taken custody of the Association,3 and three individuals named as liquidators by the Association's shareholders in voting a voluntary plan of liquidation.4 The complaint alleged that the withdrawable capital shares purchased by the petitioners were securities within the meaning of § 3(a)(10) of the Securities Exchange Act,5 that the petitioners had purchased such securities in reliance upon printed solicitations received from City Savings through the mails, and that such solicitations contained false and misleading statements in violation of § 10(b) of the Securities Exchange Act6 and of Rule 10b—5 adopted thereunder by the Securities and Exchange Commission.7 More specifically, the complaint alleged that the mailed solicitations portrayed City Savings as a financially strong institution and its shares as desirable investments. But the solicitations failed to disclose, inter alia, that the Association was controlled by an individual who had been convicted of mail fraud involving savings and loan associations, that the Association had been denied federal insurance of its accounts because of its unsafe financial policies, and that the Association had been forced to restrict withdrawals by holders of previously purchased shares.
3
The respondents filed motions to dismiss on the ground that the complaint failed to state a cause of action under § 10(b) because the petitioners' withdrawable capital shares were not securities within the meaning of the Securities Exchange Act. The District Court denied the motions to dismiss, ruling that the petitioners' shares fell within the Act's definition of securities. However, recognizing that the ruling 'involves a controlling question of law as to which there is substantial ground for difference of opinion,' the District Court certified its order for an interlocutory appeal to the Court of Appeals for the Seventh Circuit under 28 U.S.C. § 1292(b). The Court of Appeals, with one judge dissenting, agreed with respondents that the withdrawable capital shares issued by City Savings did not fit the definition of securities in § 3(a)(10) of the Securities Exchange Act. Consequently, it ruled that the District Court was without jurisdiction in the case, and it remanded with instructions to dismiss the complaint. 371 F.2d 374. Because this case presents an important question concerning the scope of the Securities Exchange Act, we granted certiorari. 387 U.S. 941, 87 S.Ct. 2076, 18 l.Ed.2d 1326. We disagree with the construction placed on § 3(a)(10) by the Court of Appeals, and we reverse its judgment.
4
Section 3(a)(10) of the Securities Exchange Act of 1934 provides:
5
'3. (a) When used in this title, unless the context otherwise requires—
6
'(10) The term 'security' means any note, stock, treasury stock, bond, debenture, certificate of interest or participation in any profit-sharing agreement or in any oil, gas, or other mineral royalty or lease, any collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit, for a security, or in general, any instrument commonly known as a 'security'; or any certificate of interest or participation in, temporary or interim certificate for, receipt for, or warrant or right to subscribe to or purchase, any of the foregoing; but shall not include currency or any note, draft, bill of exchange, or banker's acceptance which has a maturity at the time of issuance of not exceeding nine months, exclusive of days of grace, or any renewal thereof the maturity of which is likewise limited.'
7
This case presents the Court with its first opportunity to construe this statutory provision. But we do not start with a blank slate. The Securities Act of 1933 (48 Stat. 74, as amended) contains a definition of security8 virtually identical to that contained in the 1934 Act. Consequently, we are aided in our task by our prior decisions which have considered the meaning of security under the 1933 Act.9 In addition, we are guided by the familiar canon of statutory construction that remedial legislation should be construed broadly to effectuate its purposes. The Securities Exchange Act quite clearly falls into the category of remedial legislation.10 One of its central purposes is to protect investors through the requirement of full disclosure by issuers of securities, and the definition of security in § 3(a)(10) necessarily determines the classes of investments and investors which will receive the Act's protections. Finally, we are reminded that, in searching for the meaning and scope of the word 'security' in the Act, form should be disregarded for substance and the emphasis should be on economic reality. S.E.C. v. W. J. Howey Co., 328 U.S. 293, 298, 66 S.Ct. 1100, 1102, 90 L.Ed. 1244 (1946).
8
Because City Savings' authority to issue withdrawable capital shares is conferred by the Illinois Savings and Loan Act, we look first to the legal character imparted to those shares by that statute. The issuance of withdrawable capital shares is one of two methods by which Illinois savings and loan associations are authorized to raise capital.11 City Savings' capital is represented exclusively by withdrawable capital shares. Each holder of a withdrawable capital share becomes a member of the association12 and is entitled to 'the vote of one share for each one hundred dollars of the aggregate withdrawal value of such accounts, and shall have the vote of one share for any fraction of one hundred dollars.'13 The holders of withdrawable capital shares are not entitled to a fixed rate of return. Rather, they receive dividends declared by an association's board of directors and based on the association's profits.14 The power of a holder of a withdrawable capital share to make voluntary withdrawals is restricted by statute.15 While withdrawable capital shares are declared nonnegotiable and not subject to Article 8 of the Uniform Commercial Code,16 such shares can be transferred 'by written assignment accompanied by delivery of the appropriate certificate or account book.'17
9
While Illinois law gives legal form to the withdrawable capital shares held by the petitioners, federal law must govern whether shares having such legal form constitute securities under the Securities Exchange Act.18 Even a casual reading of § 3(a)(10) of the 1934 Act reveals that Congress did not intend to adopt a narrow or restrictive concept of security in defining that term.19 As this Court observed with respect to the definition of security in § 2(1) of the Securities Act of 1933, 'the reach of the Act does not stop with the obvious and commonplace.' S.E.C. v. C. M. Joiner Leasing Corp., 320 U.S. 344, 351, 64 S.Ct. 120, 123, 88 L.Ed. 88 (1943). As used in both the 1933 and 1934 Acts, security 'embodies a flexible rather than a static principle, one that is capable of adaptation to meet the countless and variable schemes devised by those who seek the use of the money of others on the promise of profits.' S.E.C. v. W. J. Howey Co., supra, 328 U.S. at 299, 66 S.Ct. at 1103. We have little difficulty fitting the withdrawable capital shares held by the petitioners into that expansive concept of security. Of the several types of instruments designated as securities by § 3(a)(10) of the 1934 Act, the petitioners' shares most closely resemble investment contracts. 'The test (for an investment contract) is whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others.' Id., at 301, 66 S.Ct. at 1104. Petitioners are participants in a common enterprise—a money-lending operation dependent for its success upon the skill and efforts of the management of City Savings in making sound loans. Because Illinois law ties the payment of dividends on withdrawable capital shares to an apportionment of profits,20 the petitioners can expect a return on their investment only if City Savings shows a profit. If City Savings fails to show a profit due to the lack of skill or honesty of its managers, the petitioners will receive no dividends. Similarly, the amount of dividends the petitioners can expect is tied directly to the amount of profits City Savings makes from year to year. Clearly, then, the petitioners' withdrawable capital shares have the essential attributes of investment contracts as that term is used in § 3(a)(10) and as it was defined in Howey.21 But we need not rest our decision on that conclusion alone. 'Instruments may be included within any of (the Act's) definitions, as matter of law, if on their face they answer to the name or description.' S.E.C. v. C. M. Joiner Leasing Corp., supra, 320 U.S. at 351, 64 S.Ct. at 123. The petitioners' shares fit well within several other descriptive terms contained in § 3(a) (10). For example, the petitioners' shares can be viewed as 'certificate(s) of interest or participation in any profit-sharing agreement.' The shares must be evidenced by a certificate,22 and Illinois law makes the payment of dividends contingent upon an apportionment of profits. These same factors make the shares 'stock' under § 3(a)(10). Finally, the petitioners' shares can be considered 'transferable share(s)' since '(t)he holder of a withdrawable capital account may transfer his rights therein absolutely or conditionally to any other person eligible to hold the same.'23
10
Our conclusion that a withdrawable capital share is a security within the meaning of § 3(a)(10) is reinforced by the legislative history of federal securities legislation. When Congress was considering the Securities Act of 1933, representatives of the United States Building and Loan League appeared before House and Senate committees to plead the cause of the League's members. The League's spokesmen asked Congress for an exemption from the Act's registration requirements for building and loan association shares. The spokesmen argued that the cost of complying with the registration requirements whenever a building and loan association issued a new share would be prohibitive. However, the League's spokesmen emphatically endorsed the coverage of building and loan associations under the Act's antifraud provisions.24 Thus, Morton Bodfish, the League's Executive Manager, told the House Committee on Interstate and Foreign Commerce:
11
'When a person saves his money in a building and loan association, he purchases shares and nearly all of our $8,000,000,000 of assets are in the form of shares * * *.
12
'The practical difficulties of an association having to register every issue of shares * * * are obvious.25
13
'(W)e approve vigorously and are quite willing to be subject to section 13, which is the fraud section * * *.26
14
'Now, gentlemen, we want you to leave the fraud sections there, just as they are, so that (if) any fraud developed in connection with the management of any of our institutions anywhere or under the name of building and loan, this law can be effective and operative.'27
15
Congress responded to the appeals from the building and loan interests by including in § 3(a)(5) of the 1933 Act an exemption from the registration requirements for '(a)ny security issued by a building and loan association, homestead association, savings and loan association, or similar institution * * *.'28 It seems quite apparent that the building and loan interests would not have sought an exemption from the registration requirements and Congress would not have granted it unless there was general agreement that the Act's definition of security in § 2(1) brought building and loan shares within the purview of the Act.29
16
The same Congress which passed the Securities Act in 1933 approved the Securities Exchange Act in 1934, and the definition of security contained in the 1934 Act is virtually identical to that in the earlier enactment. The legislative history of the 1934 Act is silent with respect to savings and loan shares, but the Senate Report on the Act asserts that its definition of security was intended to be 'substantially the same as (that contained) in the Securities Act of 1933.' S.Rep.No. 792, 73d Cong., 2d Sess., 14 (1934). In addition, when Congress amended the 1934 Act in 1964 to provide for the registration of certain equity securities, it provided an exemption for 'any security * * * issued by a savings and loan association * * *.' 15 U.S.C. § 78l(g)(2)(C). Thus, the 1934 Act has a pattern of coverage and exemption of savings and loan shares similar to the pattern in the 1933 Act.30
17
We view the Court of Appeals' conclusion that the petitioners' withdrawable capital shares are not securities as a product of misplaced emphasis. After reviewing the definition of security in § 3(a)(10), the Court of Appeals stated that '(t)he type of interest now before us, if it is covered by this definition, must be an 'instrument commonly known as a 'security.'" 371 F.2d, at 376. Thus, the Court of Appeals read the words an 'instrument commonly known as a 'security" in § 3(a)(10) as a limitation on the other descriptive terms used in the statutory definition. This, of course, is contrary to our decision in Joiner where we rejected the respondents' invitation to 'constrict the more general terms substantially to the specific terms which they follow.' 320 U.S., at 350, 64 S.Ct., at 123. In addition, we cannot agree with the Court of Appeals' analysis which led it to conclude that a withdrawable capital share is not an 'instrument commonly known as a 'security." For example, the Court of Appeals stressed that withdrawable capital shares can be issued in unlimited amounts and their holders have no preemptive rights. Yet the same is true of shares in mutual funds, and we have little doubt that such shares are securities within the meaning of the Securities Exchange Act. The Court of Appeals also emphasized that the withdrawable capital shares are made nonnegotiable by Illinois law. This simply reflects the fact that such shares are not a usual medium for trading in the markets. The same can be said for the types of interests which we found to be securities in Howey and Joiner.31 The Court of Appeals noted further that the holders of withdrawable capital shares are not entitled under Illinois law to inspect the general books and records of the association. Inspection of that nature, however, is not a right which universally attaches to corporate shares.32 In short, the various factors highlighted by the Court of Appeals in concluding that the withdrawable capital shares are not an 'instrument commonly known as a 'security" serve only to distinguish among different types of securities. They do not, standing alone, govern whether a particular instrument is a security under the federal securities law.
18
The Court of Appeals thought it highly significant that the term 'evidence of indebtedness' appears in the definition of security in the 1933 Act but was omitted from the definition in the 1934 Act. We cannot agree that the omission has any controlling significance in this case. For one thing, we have found other descriptive terms in § 3(a)(10) which cover the petitioners' withdrawable capital shares. The Court of Appeals' emphasis on the omission of 'evidence of indebtedness' from § 3(a)(10) flowed from its conclusion that the petitioners' 'relationship with the enterprise is much more that of debtor-creditor than investment.' 371 F.2d, at 377. That assertion, however, overlooks the fact that, under Illinois law, the holder of a withdrawable capital share does not become a creditor of a savings and loan association even when he files an application for withdrawal.33 For this reason alone, the omission of the term 'evidence of indebtedness' from § 3(a)(10) provides no basis for concluding that Congress intended to exclude the petitioners' withdrawable capital shares from the Act's coverage.
19
The Court of Appeals sought a policy basis for its decision when it noted that the federal securities laws 'were passed in the aftermath of the great economic disaster of 1929. Congress was concerned with speculation in securities which had a fluctuating value and which were traded in securities exchanges or in over-the-counter markets.' 371 F.2d, at 377. This statement suggests, and the respondents have argued in this Court, that the petitioners' withdrawable capital shares are not within the purview of the 1934 Act because their value normally does not fluctuate and because they are normally not traded in securities exchanges or over-the-counter. The accuracy of this assertion is open to question.34 But, more important, it is irrelevant to the question before us. As was observed in Howey, 'it is immaterial whether the enterprise is speculative or nonspeculative.' 328 U.S., at 301, 66 S.Ct., at 1104.
20
Policy considerations lead us to conclude that these petitioners are entitled to the investor protections afforded by the Securities Exchange Act. We agree fully with the following observations made by Judge Cummings in his dissent below:
21
'The investors in City Savings were less able to protect themselves than the purchasers of orange groves in Howey. These (petitioners) had to rely completely on City Savings' management to choose suitable properties on which to make mortgage loans. * * * The members of City Savings were widely scattered. Many of them probably invested in City Savings on the ground that their money would be safer than in stocks. * * * Because savings and loan association are constantly seeking investors through advertising * * * the SEC's present tender of its expert services should be especially beneficial to would-be savings and loan investors as a shield against unscrupulous or unqualified promoters.' 371 F.2d, at 384—385.
22
The respondents have argued that we should not declare the petitioners' withdrawable capital shares securities under § 3(a)(10) because the petitioners, if they are successful in their suit for rescission, will gain an unfair advantage over other investors in City Savings in the distribution of the limited assets of that Association, which is now in liquidation. This argument, at best, is a non sequitur. This case in its present posture involves no issue of priority of claims against City Savings. This case involves only the threshold question of whether a federal court has jurisdiction over the complaint filed by the petitioners—a question which turns on our construction of the term 'security' as defined by § 3(a)(10) of the Securities Exchange Act of 1934. It is totally irrelevant to that narrow question of statutory construction that these petitioners, if they are successful in their federal suit, might have rights in the limited assets of City Savings superior to those of other investors in that Association.
23
Reversed.
24
Mr. Justice MARSHALL took no part in the consideration and decision of this case.
1
Ill.Rev.Stat., c. 32, §§ 701—944.
2
The members of the class were identified in the complaint as 'more than 5,000 investors (who) have purchased securities (i.e., withdrawable capital shares) of City Savings since July 23, 1959 * * *.' The total investment of the class members was alleged to amount to 'between fifteen and twenty million dollars.'
3
The state officials had acted under the authority of Ill.Rev.Stat., c. 32, § 848. The record does not disclose the precise reason for placing City Savings under state custody. However, the complaint filed in the District Court and the petitioners' brief in this Court suggest that City Savings has been the victim of mismanagement of major proportions.
4
The voluntary plan of liquidation was formally approved four days after the petitioners had filed their complaint. However, the three liquidators had been nominated prior to the filing of the complaint, and their election had been a foregone conclusion. Voluntary liquidation is authorized by Ill.Rev.Stat., c. 32, Art. 9.
5
15 U.S.C. § 78c(a)(10).
6
15 U.S.C. § 78j(b).
7
17 C.F.R. § 240.10b—5.
8
'2. When used in this title, unless the context otherwise requires—
'(1) The term 'security' means any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment, contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, or, in general any interest or instrument commonly known as a 'security' * * *.' 48 Stat. 905.
9
S.E.C. v. United Benefit Life Ins. Co., 387 U.S. 202, 87 S.Ct. 1557, 18 L.Ed.2d 673 (1967); S.E.C. v. Variable Annuity Life Ins. Co., 359 U.S. 65, 79 S.Ct. 618, 3 L.Ed.2d 640 (1959); S.E.C. v. W. J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946); and S.E.C. v. C. M. Joiner Leasing Corp., 320 U.S. 344, 64 S.Ct. 120, 88 L.Ed. 88 (1943).
10
The Securities Exchange Act was a product of a lengthy and highly publicized investigation by the Senate Committee on Banking and Currency into stock market practices and the reasons for the stock market crash of October 1929. See Loomis, The Securities Exchange Act of 1934, and the Investment Advisors Act of 1940, 28 Geo.Wash.L.Rev. 214, 216—217. (1960).
11
'The capital of an association may be represented by withdrawable capital accounts (shares and share accounts) or permanent reserve shares, or both * * *.' Ill.Rev.Stat., c. 32, § 761(a). 'Permanent reserve shares shall constitute a secondary reserve out of which losses shall be paid after all other available reserves have been exhausted * * *.' Id., § 763.
12
Id., § 741(a)(1).
13
Id., § 742(d)(2). Each borrower from a savings and loan association automatically becomes a member of the association, id., § 741(a)(2), but is entitled to only one vote, id., § 742(d)(4).
14
Id., § 778(c). The directors are required to apportion an association's profits at least annually.
15
Id., § 773.
16
Id., § 768(c).
17
Id., § 768(b).
18
Cf. S.E.C. v. Variable Annuity Life Ins. Co., 359 U.S. 65, 69, 79 S.Ct. 618, 620, 3 L.Ed.2d 640.
19
'(T)he term 'security' (in the Securities Act of 1933 is defined) in sufficiently broad and general terms so as to include within that definition the many types of instruments that in our commercial world fall within the ordinary concept of a security.' H.R.Rep. No. 85, 73d Cong., 1st Sess., 11 (1933).
20
Ill.Rev.Stat., c. 32, § 778.
21
The Court of Appeals refused to apply the Howey test in this case. It did not view the petitioners as entering a common enterprise with profits to come solely from the efforts of others because 'profit is derived from loans to other members of the savings and loan association.' 371 F.2d, at 377. That analysis, however, places too much emphasis on the fact that, under Illinois law, anyone who borrows from a savings and loan association automatically becomes a member of the association. Ill.Rev.Stat., c. 32, § 741(a)(2). It also overlooks the several other classes of investments which Illinois savings and loan associations are authorized to make. Id., §§ 792—792.10.
22
Id., § 768(a).
23
Id., § 768(b).
24
Hearings on H.R. 4314 before the House Committee on Interstate and Foreign Commerce, 73d Cong., 1st Sess., 70—75 (1933) (testimony of Morton Bodfish, Executive Manager, United States Building and Loan League); Hearings on S. 875 before the Senate Committee on Banking and Currency, 73d Cong., 1st Sess., 50 54 (1933) (testimony of C. Clinton James, Chairman, Federal Legislative Committee of the United States Building and Loan League).
25
Hearings on H.R. 4314, supra, at 71.
26
Id., at 73.
27
Id., at 74.
28
15 U.S.C. § 77c(a)(5).
29
The view expressed by the building and loan association interests in 1933 has not changed over the years. The United States Savings and Loan League, in its Membership Bulletin, made the following comments on the Court's decision to hear this case:
'This case is not necessarily as significant and earth shaking in its implications as many savings and loan people assume. In the first place the savings and loan business always has assumed that it was subject to the antifraud provisions of the Securities Acts relating to advertising practices, etc. Regardless of how this case goes it does not mean that savings and loan associations will be any more involved with the SEC than they have been in the past. It does not mean that associations would have to register with the SEC and be subject to all of the rules that apply to typical securities transactions.'
United States Savings and Loan League, Membership Bulletin, June 28, 1967, p. 15.
30
The Court of Appeals rejected the view that we take of the legislative history of federal securities legislation with respect to savings and loan association shares. In effect, the Court of Appeals viewed Congress' exemption of savings and loan shares from the registration requirements as what Professor Loss calls 'supererogation.' 1 Loss, Securities Regulation 497 (2d ed. 1961). The Court of Appeals based its argument on the analogy it drew between ordinary insurance policies, which are also exempted from the 1933 Act's registration provisions, and savings and loan shares. The analogy, however, is inappropriate. Congress specifically stated that 'insurance policies are not to be regarded as securities subject to the provisions of the act,' H.R.Rep. No. 85, 73d Cong., 1st Sess., 15 (1933), and the exemption from registration for insurance policies was clearly supererogation. See S.E.C. v. Variable Annuity Life Ins. Co., 359 U.S. 65, 74, n. 4, 79 S.Ct. 618, 623, 3 L.Ed.2d 640. The same cannot be said for savings and loan shares, particularly when the spokesmen for those who issue savings and loan shares had told Congress they fully expected to be covered by the 1933 Act's antifraud provisions.
31
In Hovey, this Court ruled that interests in orange groves were securities under the 1933 Act. In Joiner, it held that oil leases were securities under the Act.
32
See Baker & Cary, Cases and Materials on Corporations 739 741 (3d ed. 1958).
33
Ill.Rev.Stat., c. 32, § 773(f)
34
The SEC, in its brief amicus curiae submitted in this case, points out that it granted a temporary exemption from §§ 7,8, 12, and 13 of the 1934 Act to passbooks of savings and loan associations, which were being traded on the Cleveland Stock Exchange shortly after the Act's passage. The SEC also points out that it has repeatedly enforced the Act's registration provisions against brokers and dealers whose business includes the solicitation of funds for deposit in savings and loan associations. Brief for the SEC 22—24.
| 78
|
389 U.S. 347
88 S.Ct. 507
19 L.Ed.2d 576
Charles KATZ, Petitioner,v.UNITED STATES.
No. 35.
Argued Oct. 17, 1967.
Decided Dec. 18, 1967.
Harvey A. Schneider and Burton Marks, Beverly Hills, Cal., for petitioner.
John S. Martin, Jr., Washington, D.C., for respondent.
MR. JUSTICE STEWART delivered the opinion of the Court.
1
The petitioner was convicted in the District Court for the Southern District of California under an eight-count indictment charging him with transmitting wagering information by telephone from Los Angeles to Miami and Boston in violation of a federal statute.1 At trial the Government was permitted, over the petitioner's objection, to introduce evidence of the petitioner's end of telephone coversations, overheard by FBI agents who had attached an electronic listening and recording device to the outside of the public telephone booth from which he had placed his calls. In affirming his conviction, the Court of Appeals rejected the contention that the recordings had been obtained in violation of the Fourth Amendment, because '(t)here was no physical entrance into the area occupied by, (the petitioner).'2 We granted certiorari in order to consider the constitutional questions thus presented.3
2
The petitioner had phrased those questions as follows:
3
'A. Whether a public telephone booth is a constitutionally protected area so that evidence obtained by attaching an electronic listening recording device to the top of such a booth is obtained in violation of the right to privacy of the user of the booth.
4
'B. Whether physical penetration of a constitutionally protected area is necessary before a search and seizure can be said to be violative of the Fourth Amendment to the United States Constitution.'
5
We decline to adopt this formulation of the issues. In the first place the correct solution of Fourth Amendment problems is not necessarily promoted by incantation of the phrase 'constitutionally protected area.' Secondly, the Fourth Amendment cannot be translated into a general constitutional 'right to privacy.' That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all.4 Other provisions of the Constitution protect personal privacy from other forms of governmental invasion.5 But the protection of a person's general right to privacy—his right to be let alone by other people6—is, like the protection of his property and of his very life, left largely to the law of the individual States.7
6
Because of the misleading way the issues have been formulated, the parties have attached great significance to the characterization of the telephone booth from which the petitioner placed his calls. The petitioner has strenuously argued that the booth was a 'constitutionally protected area.' The Government has maintained with equal vigor that it was not.8 But this effort to decide whether or not a given 'area,' viewed in the abstract, is 'constitutionally protected' deflects attention from the problem presented by this case.9 For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206, 210, 87 S.Ct. 424, 427, 17 L.Ed.2d 312; United States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 748, 71 L.Ed. 1202. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. See Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688; Ex parte Jackson, 96 U.S. 727, 733, 24 L.Ed. 877.
7
The Government stresses the fact that the telephone booth from which the petitioner made his calls was constructed partly of glass, so that he was as visible after he entered it as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye—it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a business office,10 in a friend's apartment,11 or in a taxicab,12 a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.
8
The Government contends, however, tha the activities of its agents in this case should not be tested by Fourth Amendment requirements, for the surveillance technique they employed involved no physical penetration of the telephone booth from which the petitioner placed his calls. It is true that the absence of such penetration was at one time thought to foreclose further Fourth Amendment inquiry, Olmstead v. United States, 277 U.S. 438, 457, 464, 466, 48 S.Ct. 564, 565, 567, 568, 72 L.Ed. 944; Goldman v. United States, 316 U.S. 129, 134—136, 62 S.Ct. 993, 995—997, 86 L.Ed. 1322, for that Amendment was thought to limit only searches and seizures of tangible property.13 But '(t)he premise that property interests control the right of the Government to search and seize has been discredited.' Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 304, 87 S.Ct. 1642, 1648, 18 L.Ed.2d 782. Thus, although a closely divided Court supposed in Olmstead that surveillance without any trespass and without the seizure of any material object fell outside the ambit of the Constitution, we have since departed from the narrow view on which that decision rested. Indeed, we have expressly held that the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements overheard without any 'technical trespass under * * * local property law.' Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682, 5 L.Ed.2d 734. Once this much is acknowledged, and once it is recognized that the Fourth Amendment protects people and not simply 'areas'—against unreasonable searches and seizures it becomes clear that the reach of that Amendment cannot trun upon the presence or absence of a physical intrusion into any given enclosure.
9
We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the 'trespass' doctrine there enunciated can no longer be regarded as controlling. The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance.
10
The question remaining for decision, then, is whether the search and seizure conducted in this case complied with constitutional standards. In that regard, the Government's position is that its agents acted in an entirely defensible manner: They did not begin their electronic surveillance until investigation of the petitioner's activities had established a strong probability that he was using the telephone in question to transmit gambling information to persons in other States, in violation of federal law. Moreover, the surveillance was limited, both in scope and in duration, to the specific purpose of establishing the contents of the petitioner's unlawful telephonic communications. The agents confined their surveillance to the brief periods during which he used the telephone booth,14 and they took great care to overhear only the conversations of the petitioner himself.15
11
Accepting this account of the Government's actions as acccurate, it is clear that this surveillance was so narrowly circumscribed that a duly authorized magistrate, properly notified of the need for such investigation, specifically informed of the basis on which it was to proceed, and clearly apprised of the precise intrusion it would entail, could constitutionally have authorized, with appropriate safeguards, the very limited search and seizure that the Government asserts in fact took place. Only last Term we sustained the validity of such an authorization, holding that, under sufficiently 'precise and discriminate circumstances,' a federal court may empower government agents to employ a concealed electronic device 'for the narrow and particularized purpose of ascertaining the truth of the * * * allegations' of a 'detailed factual affidavit alleging the commission of a specific criminal offense.' Osborn v. United States, 385 U.S. 323, 329—330, 87 S.Ct. 429, 433, 17 L.Ed.2d 394. Discussing that holding, the Court in Berger v. State of New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040, said that 'the order authorizing the use of the electronic device' in Osborn 'afforded similar protections to those * * * of conventional warrants authorizing the seizure of tangible evidence.' Through those protections, 'no greater invasion of privacy was permitted than was necessary under the circumstances.' Id., at 57, 87 S.Ct. at 1882.16 Here, too, a similar judicial order could have accommodated 'the legitimate needs of law enforcement'17 by authorizing the carefully limited use of electronic surveillance.
12
The Government urges that, because its agents relied upon the decisions in Olmstead and Goldman, and because they did no more here than they might properly have done with prior judicial sanction, we should retroactively validate their conduct. That we cannot do. It is apparent that the agents in this case acted with restraint. Yet the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer. They were not required, before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate. They were not compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific court order. Nor were they directed, after the search had been completed, to notify the authorizing magistrate in detail of all that had been seized. In the absence of such safeguards, this Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end. Searches conducted without warrants have been held unlawful 'notwithstanding facts unquestionably showing probable cause,' Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145, for the Constitution requires 'that the deliberate, impartial judgment of a judicial officer * * * be interposed between the citizen and the police * * *.' Wong Sun v. United States, 371 U.S. 471, 481—482, 83 S.Ct. 407, 414, 9 L.Ed.2d 441. 'Over and again this Court has emphasized that the mandate of the (Fourth) Amendment requires adherence to judicial processes,' United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59, and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment18—subject only to a few specifically established and well-delineated exceptions.19
13
It is difficult to imagine how any of those exceptions could ever apply to the sort of search and seizure involved in this case. Even electronic surveillance substantially contemporaneous with an individual's arrest could hardly be deemed an 'incident' of that arrest.20 Nor could the use of electronic surveillance without prior autorization be justified on grounds of 'hot pursuit.'21 And, of course, the very nature of electronic surveillance precludes its use pursuant to the suspect's consent.22
14
The Government does not question these basic principles. Rather, it urges the creation of a new exception to cover this case.23 It argues that surveillance of a telephone booth should be exempted from the usual requirement of advance authorization by a magistrate upon a showing of probable cause. We cannot agree. Omission of such authorization
15
'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 * * * search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment.' Beck v. State of Ohio, 379 U.S. 89, 96, 85S.Ct. 223, 228, 13 L.Ed.2d 142.
16
And bypassing a neutral predetermination of the scope of a search leaves individuals secure from Fourth Amendment violations 'only in the discretion of the police.' Id., at 97, 85 S.Ct. at 229.
17
These considerations do not vanish when the search in question is transferred from the setting of a home, an office, or a hotel room to that of a telephone booth. Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures. The government agents here ignored 'the procedure of antecedent justification * * * that is central to the Fourth Amendment,'24 a procedure that we hold to be a constitutional precondition of the kind of electronic surveillance involved in this case. Because the surveillance here failed to meet that condition, and because it led to the petitioner's conviction, the judgment must be reversed.
18
It is so ordered.
19
Judgment reversed.
20
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
21
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN joins, concurring.
22
While I join the opinion of the Court, I feel compelled to reply to the separate concurring opinion of my Brother WHITE, which I view as a wholly unwarranted green light for the Executive Branch to resort to electronic eavesdropping without a warrant in cases which the Executive Branch itself labels 'national security' matters.
23
Neither the President nor the Attorney General is a magistrate. In matters where they believe national security may be involved they are not detached, disinterested, and neutral as a court or magistrate must be. Under the separation of powers created by the Constitution, the Executive Branch is not supposed to be neutral and disinterested. Rather it should vigorously investigate and prevent breaches of national security and prosecute those who violate the pertinent federal laws. The President and Attorney General are properly interested parties, cast in the role of adversary, in national security cases. They may even be the intended victims of subversive action. Since spies and saboteurs are as entitled to the protection of the Fourth Amendment as suspected gamblers like petitioner, I cannot agree that where spies and saboteurs are involved adequate protection of Fourth Amendment rights is assured when the President and Attorney General assume both the position of adversary-and-prosecutor and disinterested, neutral magistrate.
24
There is, so far as I understand constitutional history, no distinction under the Fourth Amendment between types of crimes. Article III, § 3, gives 'treason' a very narrow definition and puts restrictions on its proof. But the Fourth Amendment draws no lines between various substantive offenses. The arrests on cases of 'hot pursuit' and the arrests on visible or other evidence of probable cause cut across the board and are not peculiar to any kind of crime.
25
I would respect the present lines of distinction and not improvise because a particular crime seems particularly heinous. When the Framers took that step, as they did with treason, the worst crime of all, they made their purpose manifest.
26
Mr. Justice HARLAN, concurring.
27
I join the opinion of the Court, which I read to hold only (a) that an enclosed telephone booth is an area where, like a home, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, and unlike a field, Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898, a person has a constitutionally protected reasonable expectation of privacy; (b) that electronic as well as physical intrusion into a place that is in this sense private may constitute a violation of the Fourth Amendment; and (c) that the invasion of a constitutionally protected area by federal authorities is, as the Court has long held, presumptively unreasonable in the absence of a search warrant.
28
As the Court's opinion states, 'the Fourth Amendment protects people, not places.' The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a 'place.' My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.' Thus a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the 'plain view' of outsiders are not 'protected' because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable. Cf. Hester v. United States, supra.
29
The critical fact in this case is that '(o)ne who occupies it, (a telephone booth) shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume' that his conversation is not being intercepted. Ante, at 352. The point is not that the booth is 'accessible to the public' at other times, ante, at 351, but that it is a temporarily private place whose momentary occupants' expectations of freedom from intrusion are recognized as reasonable. Cf. Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688.
30
In Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734, we hedl that eavesdropping accomplished by means of an electronic device that penetrated the premises occupied by petitioner was a violation of the Fourth Amendment. That case established that interception of conversations reasonably intended to be private could constitute a 'search and seizure,' and that the examination or taking of physical property was not required. This view of the Fourth Amendment was followed in Wong Sun v.United States, 371 U.S. 471, at 485, 83 S.Ct. 407, at 416, 9 L.Ed.2d 441, and Berger v. State of New York, 388 U.S. 41, at 51, 87 S.Ct. 1873, at 1879, 18 L.Ed.2d 1040. Also compare Osborne v. United States, 385 U.S. 323, at 327, 87 S.Ct. 429, at 431, 17 L.Ed.2d 394. In Silverman we found it unnecessary to re-examine Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322, which had held that electronic surveillance accomplished without the physical penetration of petitioner's premises by a tangible object did not violate the Fourth Amendment. This case requires us to reconsider Goldman, and I agree that it should now be overruled.* Its limitation on Fourth Amendment protection is, in the present day, bad physics as well as bad law, for reasonable expectations of privacy may be defeated by electronic as well as physical invasion.
31
Finally, I do not read the Court's opinion to declare that no interception of a conversation one-half of which occurs in a public telephone booth can be reasonable in the absence of a warrant. As elsewhere under the Fourth Amendment, warrants are the general rule, to which the legitimate needs of law enforcement may demand specific exceptios. It will be time enough to consider any such exceptions when an appropriate occasion presents itself, and I agree with the Court that this is not one.
32
Mr. Justice WHITE, concurring.
33
I agree that the official surveillance of petitioner's telephone conversations in a public booth must be subjected to the test of reasonableness under the Fourth Amendment and that on the record now before us the particular surveillance undertaken was unreasonable absent a warrant properly authorizing it. This application of the Fourth Amendment need not interfere with legitimate needs of law enforcement.**
34
In joining the Court's opinion, I note the Court's asknowledgment that there are circumstance in which it is reasonable to search without a warrant. In this connection, in footnote 23 the Court points out that today's decision does not reach national security cases. Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping. See Berger v. State of New York, 388 U.S. 41, 112—118, 87 S.Ct. 1873, 1911—1914, 18 L.Ed.2d 1040 (1967) (White, J., dissenting). We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.
35
Mr. Justice BLACK, dissenting.
36
If I could agree with the Court that eavesdropping carried on by electronic means (equivalent to wiretapping) constitutes a 'search' or 'seizure,' I would be happy to join the Court's opinion. For on that premise my Brother STEWART sets out methods in accord with the Fourth Amendment to guide States in the enactment and enforcement of laws passed to regulate wiretapping by government. In this respect today's opinion differs sharply from Berger v.State of New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040, decided last Term, which held void on its face a New York statute authorizing wiretapping on warrants issued by magistrates on showings of probable cause. The Berger case also set up what appeared to be insuperable obstacles to the valid passage of such wiretapping laws by States. The Court's opinion in this case, however, removes the doubts about state power in this field and abates to a large extent the confusion and near-paralyzing effect of the Berger holding. Notwithstanding these good efforts of the Court, I am still unable to agree with its interpretation of the Fourth Amendment.
37
My basic objection is twofold: (1) I do not believe that the words of the Amendment will bear the meaning given them by today's decision, and (2) I do not believe that it is the proper role of this Court to rewrite the Amendment in order 'to bring it into harmony with the times' and thus reach a result that many people believe to be desirable.
38
While I realize that an argument based on the meaning of words lacks the scope, and no doubt the appeal, of broad policy discussions and philosophical discourses on such nebulous subjects as privacy, for me the language of the Amendment is the crucial place to look in construing a written document such as our Constitution. The Fourth Amendment says that
39
'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'
40
The first clause protects 'persons, houses, papers, and effects, against unreasonable searches and seizures * * *.' These words connote the idea of tangible things with size, form, and weight, things capable of being searched, seized, or both. The second clause of the Amendment still further establishes its Framers' purpose to limit its protection to tangible things by providing that no warrants shall issue but those 'particularly describing the place to be searched, and the persons or things to be seized.' A conversation overheard by eavesdropping, whether by plain snooping or wiretapping, is not tangible and, under the normally accepted meanings of the words, can neither be searched nor seized. In addition the language of the second clause indicates that the Amendment refers not only to something tangible so it can be seized but to something already in existence so it can be described. Yet the Court's interpretation would have the Amendment apply to overhearing future conversations which by their very nature are nonexistent until they take place. How can one 'describe' a future conversation, and, if one cannot, how can a magistrate issue a warrant to eavesdrop one in the future? It is argued that information showing what is expected to be said is sufficient to limit the boundaries of what later can be admitted into evidence; but does such general information really meet the specific language of the Amendment which says 'particularly describing'? Rather than using language in a completely artificial way, I must conclude that the Fourth Amendment simply does not apply to eavesdropping.
41
Tapping telephone wires, of course, was an unknown possibility at the time the Fourth Amendment was adopted. But eavesdropping (and wiretapping is nothing more than eavesdropping by telephone) was, as even the majority opinion in Berger, supra, recognized, 'an ancient practice which at common law was condemned as a nuisance. IV Blackstone, Commentaries § 168. In those days the eavesdropper listened by naked ear under the eaves of houses or their windows, or beyond their walls seeking out private discourse.' 388 U.S., at 45, 87 S.Ct., at 1876. There can be no doubt that the Framers were aware of this practice, and if they had desired to outlaw or restrict the use of evidence obtained by eavesdropping, I believe that they would have used the appropriate language to do so in the Fourth Amendment. They certainly would not have left such a task to the ingenuity of language-stretching judges. No one, it seems to me, can read the debates on the Bill of Rights without reaching the conclusion that its Framers and critics well knew the meaning of the words they used, what they would be understood to mean by others, their scope and their limitations. Under these circumstances it strikes me as a charge against their scholarship, their common sense and their candor to give to the Fourth Amendment's language the eavesdropping meaning the Court imputes to it today.
42
I do not deny that common sense requires and that this Court often has said that the Bill of Rights' safeguards should be given a liberal construction. This principle, however, does not justify construing the search and seizure amendment as applying to eavesdropping or the 'seizure' of conversations. The Fourth Amendment was aimed directly at the abhorred practice of breaking in, ransacking and searching homes and other buildings and seizing people's personal belongings without warrants issued by magistrates. The Amendment deserves, and this Court has given it, a liberal construction in order to protect against warrantless searches of buildings and seizures of tangible personal effects. But until today this Court has refused to say that eavesdropping comes within the ambit of Fourth Amendment restrictions. See, e.g., Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), and Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942).
43
So far I have attempted to state why I think the words of the Fourth Amendment prevent its application to eavesdropping. It is important now to show that this has been the traditional view of the Amendment's scope since its adoption and that the Court's decision in this case, along with its amorphous holding in Berger last Term, marks the first real departure from that view.
44
The first case to reach this Court which actually involved a clear-cut test of the Fourth Amendment's applicability to eavesdropping through a wiretap was, of course, Olmstead, supra. In holding tha the interception of private telephone conversations by means of wiretapping was not a violation of the Fourth Amendment, this Court, speaking through Mr. Chief Justice Taft, examined the language of the Amendment and found, just as I do now, that the words could not be stretched to encompass overheard conversations:
45
'The amendment itself shows that the search is to be of material things—the person, the house, his papers, or his effects. The description of the warrant necessary to make the proceeding lawful is that it must specify the place to be searched and the person or things to be seized. * * *
46
'Justice Bradley in the Boyd case (Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746), and Justice Clarke in the Gouled case (Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647), said that the Fifth Amendment and the Fourth Amendment were to be liberally construed to effect the purpose of the framers of the Constitution in the interest of liberty. But that can not justify enlargement of the language employed beyond the possible practical meaning of houses, persons, papers, and effects, or so to apply the words search and seizure as to forbid hearing or sight.' 277 U.S., at 464—465, 48 S.Ct., at 568.
47
Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322, is an even clearer example of this Court's traditional refusal to consider eavesdropping as being covered by the Fourth Amendment. There federal agents used a detectaphone, which was placed on the wall of an adjoining room, to listen to the conversation of a defendant carried on in his private office and intended to be confined within the four walls of the room. This Court, referring to Olmstead, found no Fourth Amendment violation.
48
It should be noted that the Court in Olmstead based its decision squarely on the fact that wiretapping or eavesdropping does not violate the Fourth Amendment. As shown, supra, in the cited quotation from the case, theCourt went to great pains to examine the actual language of the Amendment and found that the words used simply could not be stretched to cover eavesdropping. That there was no trespass was not the determinative factor, and indeed the Court in citing Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898, indicated that even where there was a trespass the Fourth Amendment does not automatically apply to evidence obtained by 'hearing or sight.' The Olmstead majority characterized Hester as holding 'that the testimony of two officers of the law who trespassed on the defendant's land, concealed themselves 100 yards away from his house, and saw him come out and hand a bottle of whiskey to another, was not inadmissible. While there was a trespass, there was no search of person, house, papers, or effects.' 277 U.S., at 465, 48 S.Ct., at 568. Thus the clear holding of the Olmstead and Goldman cases, undiluted by any question of trespass, is that eavesdropping, in both its original and modern forms, is not violative of the Fourth Amendment.
49
While my reading of the Olmstead and Goldman cases convinces me that they were decided on the basis of the inapplicability of the wording of the Fourth Amendment to eavesdropping, and not on any trespass basis, this is not to say that unauthorized intrusion has not played an important role in search and seizure cases. This Court has adopted an exclusionary rule to bar evidence obtained by means of such intrusions. As I made clear in my dissenting opinion in Berger v. State of New York, 388 U.S. 41, 76, 87 S.Ct. 1873, 1892, 18 L.Ed.2d 1040, I continue to believe that this exclusionary rule formulated in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, rests on the 'supervisory power' of this Court over other federal courts and is not rooted in the Fourth Amendment. See Wolf v. People of State of Colorado, concurring opinion, 338 U.S. 25, 39, at 40, 69 S.Ct. 1359, 1367, at 1368, 93 L.Ed. 1782. See also Mapp v. Ohio, concurring opinion, 367 U.S. 643, 661—666, 81 S.Ct. 1684, 1694—1698, 6 L.Ed.2d 1081. This rule has caused the Court to refuse to accept evidence where there has been such an intrusion regardless of whether there has been a search or seizure in violation of the Fourth Amendment. As this Court said in Lopez v. United States, 373 U.S. 427, 438—439, 83 S.Ct. 1381, 1387, 10 L.Ed.2d 462, 'The Court has in the past sustained instances of 'electronic eavesdropping' against constitutional challenge, when devices have been used to enable government agents to overhear conversations which would have been beyond the reach of the human ear (citing Olmstead and Goldman). It has been insisted only that the electronic device not be planted by an unlawful physical invasion of a constitutionally protected area. Silverman v. United States.'
50
To support its new interpretation of the Fourth Amendment, which in effect amounts to a rewriting of the language, the Court's opinion concludes that 'the underpinnings of Olmstead and Goldman have been * * * eroded by our subsequent decisions * * *.' But the only cases cited as accomplishing this 'eroding' are Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734, and Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782. Neither of these cases 'eroded' Olmstead or Goldman. Silverman is an interestng choice since there the Court expressly refused to re-examine the rationale of Olmstead or Goldman although such a re-examination was strenuously urged upon the Court by the petitioners' counsel. Also it is significant that in Silverman, as the Court described it, 'the eavesdropping was accomplished by means on an unauthorized physical penetration into the premises occupied by the petitioners,' 365 U.S., at 509, 81 S.Ct., at 681, thus calling into play the supervisory exclusionary rule of evidence. As I have pointed out above, where there is an unauthorized intrusion, this Court has rejected admission of evidence obtained regardless of whether there has been an unconstitutional search and seizure. The majority's decision here relies heavily on the statement in the opinion that the Court 'need not pause to consider whether or not there was a technical trespass under the local property law relating to party walls.' (At 511, 81 S.Ct., at 682.) Yet this statement should not becloud the fact that time and again the opinion emphasizes that there has been an unauthorized intrusion: 'For a fair reading of the record in this case shows that the eavesdropping was accomplished by means of an unauthorized physical penetration into the premises occupied by the petitioners.' (365 U.S., at 509, 81 S.Ct., at 682 emphasis added.) 'Eavesdropping accomplished by means of such a physical intrusion is beyond the pale of even those decisions * * *.' (At 509, 81 S.Ct., at 682, emphasis added.) 'Here * * * the officers overheard the petitioners' conversations only by usurping part of the petitioners' house or office * * *.' (At 511, 81 S.Ct., at 682, emphasis added.) '(D)ecision here * * * is based upon the reality of an actual intrusion * * *.' (At 512, 81 S.Ct., at 683, emphasis added.) 'We find no occasion to re-examine Goldman here, but we decline to go beyond it, by even a fraction of an inch.' (At 512, 81 S.Ct., at 683, emphasis added.) As if this were not enough, Justices Clark and Whittaker concurred with the following statement: 'In view of the determination by the majority that the unauthorized physical penetration into petitioners' premises constituted sufficient trespass to remove this case from the coverage of earlier decisions, we feel obliged to join in the Court's opinion.' (At 513, 81 S.Ct., at 684, emphasis added.) As I made clear in my dissent in Berger, the Court in Silverman held the evidence should be excluded by virtue of the exclusionary rule and 'I would not have agreed with the Court's opinion in Silverman * * * had I thought that the result depended on finding a violation of the Fourth Amendment * * *.' 388 U.S., at 79—80, 87 S.Ct., at 1894. In light of this and the fact that the Court expressly refused to re-examine Olmstead and Goldman, I cannot read Silverman as overturning the interpretation stated very plainly in Olmstead and followed in Goldman that eavesdropping is not covered by the Fourth Amendment.
51
The other 'eroding' case cited in the Court's opinion is Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782. It appears that this case is cited for the proposition that the Fourth Amendment applies to 'intangibles,' such as conversation, and the following ambiguous statement is quoted from the opinion: 'The premise that property interests control the right of the Government to search and seize has been discredited.' 387 U.S., at 304, 87 S.Ct., at 1648. But far from being concerned with eavesdropping, Warden, Md. Penitentiary v. Hayden upholds the seizure of clothes, certainly tangibles by any definition. The discussion of property interests was involved only with the common-law rule that the right to seize property depended upon proof of a superior property interest.
52
Thus, I think that although the Court attempts to convey the impression that for some reason today Olmstead and Goldman are no longer good law, it must face up to the fact that these cases have never been overruled or even 'eroded.' It is the Court's opinions in this case and Berger which for the first time since 1791, when the Fourth Amendment was adopted, have declared that eavesdropping is subject to Fourth Amendment restrictions and that conversation can be 'seized.'* I must align myself with all those judges who up to this year have never been able to impute such a meaning to the words of the Amendment.
53
Since I see no way in which the words of the Fourth Amendment can be construed to apply to eavesdropping, that closes the matter for me. In interpreting the Bill of Rights, I willingly go as far as a liberal construction of the language takes me, but I simply cannot in good conscience give a meaning to words which they have never before been thought to have and which they certainly do not have in common ordinary usage. I will not distort the words of the Amendment in order to 'keep the Constitution up to date' or 'to bring it into harmony with the times.' It was never meant that this Court have such power, which in effect would make us a continuously functioning constitutional convention.
54
With this decision the Court has completed, I hope, its rewriting of the Fourth Amendment, which started only recently when the Court began referring incessantly to the Fourth Amendment not so much as a law against unreasonable searches and seizures as one to protect an individual's privacy. By clever word juggling the Court finds it plausible to argue that language aimed specifically at searches and seizures of things that can be searched and seized may, to protect privacy, be applied to eavesdropped evidence of conversations that can neither be searched nor seized. Few things happen to an individual that do not affect his privacy in one way or another. Thus, by arbitrarily substituting the Court's language, designed to protect privacy, for the Constitution's language, designed to protect against unreasonable searches and seizures, the Court has made the Fourth Amendment its vehicle for holding all laws violative of the Constitution which offend the Court's broadest concept of privacy. As I said in Griswold v. State of Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, 'The Court talks about a constitutional 'right of privacy' as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the 'privacy' of individuals. But there is not.' (Dissenting opinion, at 508, 85 S.Ct. at 1695.) I made clear in that dissent my fear of the dangers involved when this Court uses the 'broad, abstract and ambiguous concept' of 'privacy' as a 'comprehensive substitute for the Fourth Amendment's guarantee against 'unreasonable searches and seizures." (See generally dissenting opinion, at 507—527, 85 S.Ct., at 1694—1705.)
55
The Fourth Amendment protects privacy only to the extent that it prohibits unreasonable searches and seizures of 'persons, houses, papers, and effects.' No general right is created by the Amendment so as to give this Court the unlimited power to hold unconstitutional everything which affects privacy. Certainly the Framers, well acquainted as they were with the excesses of governmental power, did not intend to grant this Court such omnipotent lawmaking authority as that. The history of governments proves that it is dangerous to freedom to repose such powers in courts.
56
For these reasons I respectfully dissent.
1
18 U.S.C. § 1084. That statute provides in pertinent part:
'(a) Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest, or for the transmission of a wire communication which entitles the recipient to receive money or credit as a result of bets or wagers, or for information assisting in the placing of bets or wagers, shall be fined no more than $10,000 or inprisoned not more than two years, or both.
'(b) Nothing in this section shall be construed to prevent the transmission in interstate or foreign commerce of information for use in news reporting of sporting events or contests, or for the transmission of information assisting in the placing of bets or wagers on a sporting event or contest from a State where betting on that sporting event or contest is legal into a State in which such betting is legal.'
2
9 Cir., 369 F.2d 130, 134.
3
386 U.S. 954, 87 S.Ct. 1021, 18 L.Ed.2d 102. The petition for certiorari also challenged the validity of a warrant authorizing the search of the petitioner's premises. In light of our disposition of this case, we do nto reach that issue.
We find no merit in the petitioner's further suggestion that his indictment must be dismissed. After his conviction was affirmed by the Court of Appeals, he testified before a federal grand jury concerning the charges involved here. Because he was compelled to testify pursuant to a grant of immunity, 48 Stat. 1096, as amended, 47 U.S.C. § 409(l), it is clear that the fruit of his testimony cannot be used against him in any future trial. But the petitioner asks for more. He contends that his conviction must be vacated and the charges against him dismissed lest he be 'subjected to (a) penalty * * * on account of (a) * * * matter * * * concerning which he (was) compelled * * * to testify * * *.' 47 U.S.C. § 409(l). Frank v. United States, 120 U.S.App.D.C. 392, 347 F.2d 486. We disagree. In relevant part, § 409(l) substantially repeats the language of the Compulsory Testimony Act of 1893, 27 Stat. 443, 49 U.S.C. § 46, which was Congress' response to this Court's statement that an immunity statute can supplant the Fifth Amendment privilege against self-incrimination only if it affords adequate protection from future prosecution or conviction. Counselman v. Hitchcock, 142 U.S. 547, 585—586, 12 S.Ct. 195, 206 207, 35 L.Ed. 1110. The statutory provision here involved was designed to provide such protection, see Brown v. United States, 359 U.S. 41, 45—46, 79 S.Ct. 539, 543—544, 3 L.Ed.2d 609, not to confer immunity from punishment pursuant to a prior prosecution and adjudication of guilt. Cf. Reina v. United States, 364 U.S. 507, 513—514, 81 S.Ct. 260, 264—265, 5 L.Ed.2d 249.
4
'The average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. * * * And a person can be just as much, if not more, irritated, annoyed and injured by an unceremonious public arrest by a policeman as he is by a seizure in the privacy of his office or home.' Griswold v. State of Connecticut, 381 U.S. 479, 509, 85 S.Ct. 1678, 1695, 14 L.Ed.2d 510 (dissenting opinion of MR. JUSTICE BLACK).
5
The First Amendment, for example, imposes limitations upon govermental abridgment of 'freedom to associate and privacy in one's associations.' NAACP v. State of Alabama, 357 U.S. 449, 462, 78 S.Ct. 1163, 1172, 2 L.Ed.2d 1488. The Third Amendment's prohibition against the unconsented peacetime quartering of soldiers protects another aspect of privacy from governmental intrusion. To some extent, the Fifth Amendment too 'reflects the Constitution's concern for * * * '* * * the right of each individual 'to a private enclave where he may lead a private life.'" Tehan v. United States ex rel. Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 465, 15 L.Ed.2d 453. Virtually every governmental action interferes with personal privacy to some degree. The question in each case is whether that interference violates a command of the United States Constitution.
6
See Warren & Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890).
7
See, e.g., Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456. Cf. Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233; Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513.
8
In support of their respective claims, the parties have compiled competing lists of 'protected areas' for our consideration. It appears to be common ground that a private home is such an area, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, but that an open field is not. Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898. Defending the inclusion of a telephone booth in his list the petitioner cites United States v. Stone, D.C., 232 F.Supp. 396, and United States v. Madison, 32 L.W. 2243 (D.C.Ct.Gen.Sess.). Urging that the telephone booth should be excluded, the Government finds support in United States v. Borgese, D.C., 235 F.Supp. 286.
9
It is true that this Court has occasionally described its conclusions in terms of 'constitutionally protected areas,' see, e.g., Silverman v. United States, 365 U.S. 505, 510, 512, 81 S.Ct. 679, 682, 683, 5 L.Ed.2d 734; Lopez v. United States, 373 U.S. 427, 438—439, 83 S.Ct. 1381, 1387—1388, 10 L.Ed.2d 462; Berger v. State of New York, 388 U.S. 41, 57, 59, 87 S.Ct. 1873, 1882, 1883, 18 L.Ed.2d 1040, but we have never suggested that this concept can serve as a talismanic solution to every Fourth Amendment problem.
10
Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319.
11
Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697.
12
Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688.
13
See Olmstead v. United States, 277 U.S. 438, 464—466, 48 S.Ct. 564, 567—569, 72 L.Ed. 944. We do not deal in this case with the law of detention r arrest under the Fourth Amendment.
14
Based upon their previous visual observations of the petitioner, the agents correctly predicted that he would use the telephone booth for several minutes at approximately the same time each morning. The petitioner was subjected to electronic surveillance only during this predetermined period. Six recordings, averaging some three minutes each, were obtained and admitted in evidence. They preserved the petitioner's end of conversations converning the placing of bets and the receipt of wagering information.
15
On the single occasion when the statements of another person were inadvertently intercepted, the agents refrained from listening to them.
16
Although the protections afforded the petitioner in Osborn were 'similar * * * to those * * * of conventional warrants,' they were not identical. A conventional warrant ordinarily serves to notify the suspect of an intended search. But if Osborn had been told in advance that federal officers intended to record his conversations, the point of making such recordings would obviously have been lost; the evidence in question could not have been obtained. In omitting any requirement of advance notice, the federal court that autorized electronic surveillance in Osborn simply recognized, as has this Court, that officers need not announce their purpose before conducting an otherwise authorized search if such an announcement would provoke the escape of the suspect or the destruction of critical evidence. See, Ker v. State of California, 374 U.S. 23, 37—41, 83 S.Ct. 1623, 1631—1634, 10 L.Ed.2d 726.
Although some have thought that this 'exception to the notice requirement where exigent circumstances are present,' id., at 39, 83 S.Ct. at 1633, should be deemed inapplicable where police enter a home before its occupants are aware that officers are present, id., at 55—58, 83 S.Ct. at 1640—1642 (opinion of MR. JUSTICE BRENNAN), the reasons for such a limitation have no bearing here. However true it may be that '(i)nnocent citizens should not suffer the shock, fright or embarrassment attendant upon an unannounced police intrusion,' id., at 57, 83 S.Ct. at 1642, and that 'the requirement of awareness * * * serves to minimize the hazards of the officers' dangerous calling,' id., at 57—58, 83 S.Ct. at 1642, these considerations are not relevant to the problems presented by judicially authorized electronic surveillance.
Nor do the Federal Rules of Criminal Procedure impose an inflexible requirement of prior notice. Rule 41(d) does require federal officers to serve upon the person searched a copy of the warrant and a receipt describing the material obtained, but it does not invariably require that this be done before the search takes place. Nordelli v. United States, 9 Cir., 24 F.2d 665, 666 667.
Thus the fact that the petitioner in Osborn was unaware that his words were being electronically transcribed did not prevent this Court from sustaining his conviction, and did not prevent the Court in Berger from reaching the conclusion that the use of the recording device sanctioned in Osborn was entirely lawful. 388 U.S. 41, 57, 87 S.Ct. 1873, 1882.
17
Lopez v. United States, 373 U.S. 427, 464, 83 S.Ct. 1381, 1401, 10 L.Ed.2d 462 (dissenting opinion of MR. JUSTICE BRENNAN).
18
See, e.g., Jones v. United States, 357 U.S. 493, 497—499, 78 S.Ct. 1253, 1256—1257, 2 L.Ed.2d 1514; Rios v. United States, 364 U.S. 253, 261, 80 S.Ct. 1431, 1436, 4 L.Ed.2d 1688; Chapman v. United States, 365 U.S. 610, 613—615, 81 S.Ct. 776, 778, 779, 5 L.Ed.2d 828; Stoner v. State of California, 376 U.S. 483, 486—487, 84 S.Ct. 889, 891—892, 11 L.Ed.2d 856.
19
See, e.g., Carroll v. United States, 267 U.S. 132, 153, 156, 45 S.Ct. 280, 285, 286, 69 L.Ed. 543; McDonald v. United States, 335 U.S. 451, 454—456, 69 S.Ct. 191, 192—194, 93 L.Ed. 153; Brinegar v. United States, 338 U.S. 160, 174—177, 69 S.Ct. 1302, 1310—1312, 93 L.Ed. 1879; Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730; Warden Md. Penitentiary v. Hayden, 387 U.S. 294, 298—300, 87 S.Ct. 1642, 1645—1647, 18 L.Ed.2d 782.
20
In Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145, the Court stated:
'The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits ar as the means by which it was committed, as well as weapons and other things to effect an escape from custody is not to be doubted.'
Whatever one's view of 'the long-standing practice of searching for other proofs of guilt within the control of the accused found upon arrest,' United States v. Rabinowitz, 339 U.S. 56, 61, 70 S.Ct. 430, 433, 94 L.Ed. 653; cf. id., at 71—79, 70 S.Ct. at 437—441 (dissenting opinion of Mr. Justice Frankfurter), the concept of an 'incidental' search cannot readily be extended to include surreptitious surveillance of an individual either immediately before, or immediately after, his arrest.
21
Although '(t)he Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others,' Warden Md. Penitentiary v. Hayden, 387 U.S. 294, 298—299, 87 S.Ct. 1642, 1646, 18 L.Ed.2d 782, there seems little likelihood that electronic surveillance would be a realistic possibility in a situation so fraught with urgency.
22
A search to which an individual consents meets Fourth Amendment requirements, Zap v. United States, 328 U.S. 624, 66 S.Ct. 1277, 90 L.Ed. 1477, but of course 'the usefulness of electronic surveillance depends on lack of notice to the suspect.' Lopez v. United States, 373 U.S. 427, 463, 83 S.Ct. 1381, 1401, 10 L.Ed.2d 462 (dissenting opinion of MR. JUSTICE BRENNAN).
23
Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.
24
See Osborn v. United States, 385 U.S. 323, 330, 87 S.Ct. 429, 433, 17 L.Ed.2d 394.
*
I also think that the course of development evinced by Silverman, supra, Wong Sun, supra, Berger, supra, and today's decision must be recognized as overruling Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, which essentially rested on the ground that coversations were not subject to the protection of the Fourth Amendment.
**
In previous cases, which are undisturbed by today's decision, the Court has upheld, as reasonable under the Fourth Amendment, admission at trial of evidence obtained (1) by an undercover police agent to whom a defendant speaks without knowledge that he is in the employ of the police, Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); (2) by a recording device hidden on the person of such an informant, Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966); and (3) by a policeman listening to the secret micro-wave transmissions of an agent coversing with the defendant in another location, On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952). When one man speaks to another he takes all the risks ordinarily inherent in so doing, including the risk that the man to whom he speaks will make public what he has heard. The Fourth Amendment does not protect against unreliable (or law-abiding) associates. Hoffa v. United States, supra. It is but a logical and reasonable extension of this principle that a man take the risk that his hearer, free to memorize what he hears for later verbatim repetitions, is instead recording it or transmitting it to another. The present case deals with an entirely different situation, for as the Court emphasizes the petitioner 'sought to exclude * * * the uninvited ear,' and spoke under circumstances in which a reasonable person would assume that uninvited ears were not listening.
*
The first paragraph of my Brother HARLAN's concurring opinion is susceptible of the interpretation, although probably not intended, that this Court 'has long held' eavesdropping to be a violation of the Fourth Amendment and therefore 'presumptively unreasonable in the absence of a search warrant.' There is no reference to any long line of cases, but simply a citation to Silverman, and several cases following it, to establish this historical proposition. In the first place, as I have indicated in this opinion, I do not read Silverman as holding any such thing; and in the second place, Silverman was decided in 1961. Thus, whatever it held, it cannot be said it 'has (been) long held.' I think by Brother HARLAN recognizes this later in his opinion when he admits that the Court must now overrule Olmstead and Goldman. In having to overrule these cases in order to establish the holding the Court adopts today, it becomes clear that the Court is promulgating new doctrine instead of merely following what it 'has long held.' This is emphasized by my Brother HARLAN's claim that it is 'bad physics' to adhere to Goldman. Such an assertion simply illustrates the propensity of some members of the Court to rely on their limited understanding of modern scientific subjects in order to fit the Constitution to the times and give its language a meaning that it will not tolerate.
| 01
|
389 U.S. 409
88 S.Ct. 539
19 L.Ed.2d 639
UNITED STATES et al.v.DIXIE HIGHWAY EXPRESS, INC., et al. BRASWELL MOTOR FREIGHT LINES, INC. v. DIXIE HIGHWAY EXPRESS, INC., et al.
Nos. 694 and 707.
Dec. 18, 1967.
Acting Solicitor General Spritzer, Assistant Attorney General Turner, Howard E. Shapiro, Robert W. Ginnane and Betty Jo Christian, for the United States and others.
T. S. Christopher, for appellant Braswell Motor Freight Lines, Inc.
Robert E. Short, for appellees Dixie Highway Express, Inc., and others.
Bates Block, Wentworth Griffin, Ed White, W. D. Benson, Jr., John S. Fessenden, Robert E. Joyner, R. J. Reynolds III and William O. Turney, for appellees Baggett Transp. Co. and others.
PER CURIAM.
1
Pursuant to § 207(a) of the Interstate Commerce Carrier Act, 49 Stat. 551, 49 U.S.C. § 307(a), the Interstate Commerce Commission concluded that a certificate of public convenience and necessity should issue to Braswell Motor Freight Lines, Inc., authorizing Braswell to extend its motor carrier services to stated points. This conclusion was based upon the Commission's finding that existing service to those points was inadequate to serve public needs. Upon suit by several competing motor carriers serving the area, the District Court enjoined the Commission from proceeding with the grant to Braswell on the ground that the Commission had failed to make adequate findings and that it had failed to afford existing carriers an opportunity to rectify deficiencies in their service. Upon remand, the Commission did not take further evidence, but it made additional findings in considerable detail. It again concluded that shippers and receivers were hampered by the inadequacy of existing service, and it held that, despite numerous complaints, existing carriers had not demonstrated that they could be depended upon to furnish adequate service.
2
The competing carriers then filed in the District Court a motion under the All-Writs Act, 28 U.S.C. § 1651, contending that the Commission had disregarded the prior opinion and order of the court and asking that the court enforce its prior judgment. The District Court agreed. It stated that it was the Commission's 'invariable rule' that no certificate would issue to add a carrier to those serving an area without first furnishing existing carriers an opportunity to improve the service. It referred to this as a 'rule of property' operating in favor of existing carriers. Accordingly, it permanently enjoined the Commission from issuing a certificate of convenience and necessity to Braswell 'unless and until the (appellees—the existing motor carriers) are first afforded a reasonable opportunity to furnish such service * * *.'
3
The United States and the Commission, and Braswell, appealed the judgment to this Court under the provisions of 28 U.S.C. §§ 1253 and 2101(b).*
4
The District Court erred in holding that it is the 'unvariable rule' of the Commission to grant existing carriers an opportunity to remedy deficiencies in service, and in holding that carriers have a property right to such opportunity before a new certificate may be issued upon a lawful finding of public convenience and necessity pursuant to the statute. The Commission's power is not so circumscribed. No such limitation has been established by the Commission's own decisions or by judicial determinations. It is, of course, true that the Commission should consider the public interest in maintaining the health and stability of existing carriers, see United States v. Drum, 368 U.S. 370, 374, 82 S.Ct. 408, 410, 7 L.Ed.2d 360 (1962); but it is also true that, upon the basis of appropriate findings, 'the Commission may authorize the certificate even though the existing carriers might arrange to furnish successfully the projected service.' ICC v. Parker, 326 U.S. 60, 70, 65 S.Ct. 1490, 1495, 89 L.Ed. 2051 (1945); see Schaffer Transportation Co. v. United States, 355 U.S. 83, 90—91, 78 S.Ct. 173, 177, 178, 2 L.Ed.2d 117 (1957). Accordingly, we reverse and remand for further proceedings consistent with this opinion.
5
Reversed and remanded.
6
Mr. Justice MARSHALL took no part in the consideration or decision of these cases.
*
Appellees urge that the appeals are untimely because they were filed more than 60 days after the District Court's initial judgment. This is palpably untenable because, without passing upon the appropriateness of the All-Writs procedure which appellees utilized, it is clear that the appeals were properly taken from the District Court's second order entered after the Commission decision upon remand.
| 89
|
389 U.S. 413
88 S.Ct. 541
19 L.Ed.2d 643
Bennie W. BROOKSv.FLORIDA.
No. 14, Misc.
Dec. 18, 1967.
Earl Faircloth, Atty. Gen. of Florida, and Wallace E. Allbritton, Asst. Atty. Gen., for respondent.
PER CURIAM.
1
Petitioner, Bennie Brooks, was convicted of participating in a riot in the Florida prison where he was an inmate and was sentenced to a term of nine years and eight months to run consecutively with the sentence he was already serving. His conviction was affirmed without opinion by the Florida District Court of Appeal, First District, and his petition for writ of certiorari filed in the Florida Supreme Court was dismissed, also without opinion.
2
The disturbance in the prison occurred on May 27, 1965. The same day Brooks was ordered confined in a punishment cell for 35 days with two other prisoners also accused of the rioting. Brooks says the cell was 7 feet long and 6 1/2 feet wide; a witness for the State testified it was 6 feet longer. This minor difference aside, the parties agree that the punishment cell had no external window, that it contained no bed or other furnishings or facilities except a hole flush with the floor which served as a commode, and that during the first 14 days he lived in this cell Brooks' only contact with the outside was an unspecified number of interviews with the prison's investigating officer. It is also agreed that while so confined Brooks was fed a 'restricted diet' consisting, according to the testimony of the investigating officer, of 'peas and carrots in a soup form' three times daily. Brooks' more detailed description of this concoction 'they fed us four ounces of soup three times a day and eight ounces of water'—was not controverted, nor was his testimony that he was stripped naked before being thrown into the cell. On the 15th day of confinement under these conditions, Brooks was taken from the punishment cell and again brought directly to the investigating officer. This time, shortly after questioning began, Brooks confessed and dictated his statement into a tape recorder. The recording was introduced at trial. Brooks says that he was brutally beaten by one officer while the other was taking his statement. However, we do not consider this claim because the officer denied it and the judge disbelieved Brooks' testimony. The judge also concluded that the confession was voluntary. We disagree.
3
Putting to one side quibbles over the dimensions of the windowless sweatbox into which Brooks was thrown naked with two other men, we cannot accept his statement as the voluntary expression of an uncoerced will. For two weeks this man's home was a barren cage fitted only with a hole in one corner into which he and his cell mates could defecate. For two weeks he subsisted on a daily fare of 12 ounces of thin soup and eight ounces of water. For two full weeks he saw not one friendly face from outside the prison, but was completely under the control and domination of his jailers. These stark facts belie any contention that the confession extracted from him within minutes after he was brought from the cell was not tainted by the 14 days he spent in such an oppressive hole. In a long line of cases beginning with Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936), and reaffirmed last Term in Clewis v. State of Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967), we have held that the Constitution does not permit prosecutorial use of an involuntary confession. We have also asserted repeatedly that, in adjudicating the question of voluntariness, 'we cannot escape the responsibility of making our own examination of the record.' Spano v. People of State of New York, 360 U.S. 315, 316, 79 S.Ct. 1202, 1203, 3 L.Ed.2d 1265 (1959). See Haynes v. State of Washington, 373 U.S. 503, 515, 83 S.Ct. 1336, 1344, 10 L.Ed.2d 513 (1963); Chambers v. State of Florida, 309 U.S. 227, 228—229, 60 S.Ct. 472, 473, 84 L.Ed. 716 (1940). The record in this case documents a shocking display of barbarism which should not escape the remedial action of this Court. Accordingly, we reverse the judgment below.*
4
The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment of the Florida District Court of Appeal, First District, must be and hereby is reversed.
5
Reversed.
6
Mr. Justice BLACK concurs in the result.
*
Because we hold that the use at trial of the involuntary confession requires reversal of petitioner's conviction, we find it unnecessary to reach other issues raised by him. Thus, we express no views on petitioner's contentions that (1) he was denied a fair trial because the residents of the rural county where venue was set were hostile toward inmates of the prison and (2) he was denied the effective assistance of counsel because his appointed attorney was forced to trial without an opportunity to prepare to represent petitioner and the 12 codefendants tried with him.
| 01
|
389 U.S. 416
88 S.Ct. 526
19 L.Ed.2d 647
Betty DAMICO et al.v.CALIFORNIA et al.
No. 629, Misc.
Decided Dec. 18, 1967.
George F. Duke, for appellants.
Thomas C. Lynch, Atty. Gen. of California, and Richard L. Mayers and Elizabeth Palmer, Deputy Attys. Gen., for appellees.
PER CURIAM.
1
The motion for leave to proceed in forma pauperis is granted.
2
Appellants, welfare claimants under California Welfare and Institutions Code §§ 11250, 11254, and regulation C—161.20 thereunder, sought damages, a declaratory judgment of unconstitutionality and temporary and permanent injunctive relief in this suit under the Civil Rights Act, 42 U.S.C. § 1983, 28 U.S.C. § 1343. Their complaint alleges that the statute and regulation are discriminatory and that the appellees, in administering them and in applying them to appellants, deprived appellants of equal rights secured by the United States Constitution. The three-judge District Court dismissed the complaint solely because 'it appear(ed) to the Court that all of the plaintiffs (had) failed to exhaust adequate administrative remedies.' This was error. In McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622, noting that one of the purposes underlying the Civil Rights Act was 'to provide a remedy in the federal courts supplementary to any remedy any State might have,' id., at 672, 83 S.Ct. at 1435 we held that 'relief under the Civil Rights Act may not be defeated because relief was not first sought under state law which provided (an administrative) remedy,' id., at 671, 83 S.Ct., at 1435. See Monroe v. Pape, 365 U.S. 167, 180—183, 81 S.Ct. 473, 480—482, 5 L.Ed.2d 492. We intimate no view upon the merits of appellants' allegations nor upon the other grounds not passed upon by the District Court.
3
The judgment of the District Court for the Northern District of California is reversed, and the case is remanded for further proceedings consistent with this opinion.
4
It is so ordered.
5
Judgment reversed and case remanded with directions.
6
Mr. Justice HARLAN, dissenting.
7
California's Aid to Families with Dependent Children program provides welfare assistance to mothers and children rendered destitute through desertion by or separation from the fathers of the children. The law requires that, unless a suit for divorce has been filed, the desertion or separation be of at least three months' duration before AFDC aid will be granted.
8
Appellants were informed by a social worker that, no suit for divorce having been filed, they could not receive AFDC aid before the end of the three-month period; they then brought this suit for a declaration that the three-month requirement violated the Federal Constitution. The District Court, without reaching the question whether it should 'abstain' pending appropriate state proceedings for relief, and without reaching the merits, dismissed on the ground that the plaintiffs had failed to exhaust 'adequate administrative remedies.'
9
This Court, without plenary consideration and without stating its reasons, now reverses the District Court's dismissal, citing McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622. In McNeese, the Court held that Negro students, seeking relief from alleged school racial segregation, did not have to pursue and exhaust certain administrative remedies available under state law before bringing their federal action. Although I did not at the time and do not now fully understand the Court's opinion in McNeese,* the net result of the case as I see it was that the right to assert, in a federal court, that state officials had acted in a manner depriving the plaintiff of clear constitutional rights could not be delayed by the interposition of intentionally or unintentionally inadequate state remedies for the alleged discrimination.
10
If that is a correct description of the exhaustion problem in McNeese, it bears little relation to the exhaustion question here. State AFDC relief was created pursuant to the provisions of the federal Social Security Act, 49 Stat. 627, 42 U.S.C. § 601 et seq. The Federal Government pays the major share of the cost of state aid, see 42 U.S.C. § 603, and in return closely supervises both how it shall be administered and what remedies shall be available to those who have complaints about its operation. Each State receiving federal assistance (which includes California) must formulate and submit to the Secretary of Health, Education, and Welfare, for his approval, a plan of operation of its AFDC program. 42 U.S.C. § 602. In particular, the plan must provide that 'aid to families with dependent children * * * shall be furnished with reasonable promptness to all eligible individuals,' 42 U.S.C. § 602(a)(9), and must 'provide for granting * * * a fair hearing before the State agency (whose creation is required by a separate provision, 42 U.S.C. § 602(a)(3)) to any individual whose claim for aid to families with dependent children is denied or is not acted upon with reasonable promptness.' 42 U.S.C. § 602(a)(4). The California plan approved by the Secretary apparently includes both California's three-month requirement and California's hearing procedure.
11
The Court simply ignores the highly successful federal-state working relationship created by Congress in this area. The right of these appellants to receive AFDC funds involves not only questions of state law, but also the propriety of that law under federal statutory law. For the determination of these questions Congress has specified a state forum in the first instance. Today's holding, made without benefit of briefs and oral argument and on a skimpy record, that 42 U.S.C. § 1983 may be used to bypass 42 U.S.C. § 602 is a disservice to both of these important statutes.
12
I would affirm the judgment below.
*
The source of my difficulty is a compound of the occasional use of language broader than was necessary or warranted by the facts as the majority viewed them, and of my own disagreement with the majority's view of the facts. In Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, in an opinion which I joined, the Court declared that one complaining of unlawful search and seizure by state officials could sue them in a federal court under 42 U.S.C. § 1983, notwithstanding the availability of similar remedies under state law. That case did not say that one who is engaged in a course of dealing with an administrative agency may bypass the orderly procedures established by that agency and the procedures for review of agency action and sue its members individually at any stage. In McNeese it was the prevailing view, with which I disagreed under the circumstances, that the administrative procedures established by the State were inadequate for the vindication of federal rights. Reading Monroe to have interpreted 42 U.S.C. § 1983 'to provide a remedy where state law was inadequate, (and) 'to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice," 373 U.S., at 672, 83 S.Ct., at 1435, the Court concluded that '(w)hen federal rights are subject to such tenuous protection, prior resort to a state proceeding is not necessary.' Id., at 676, 83 S.Ct., at 1438.
The majority opinion in McNeese also, however, attributed to Monroe the establishment of the principle that 42 U.S.C. § 1983 provides a 'supplementary' remedy to any a State might have. This language is now interpreted by the Court to mean that there can be no requirement that a person dealing with an administrative agency continue to deal with it in an orderly fashion, no matter how adequate his remedy there. If this is what the majority opinion in McNeese meant to say, its dictum was gratuitous both in the sense that it was not compelled by the facts as the Court viewed them and in the sense that it was an incorrect interpretation of Monroe.
| 12
|
389 U.S. 384
88 S.Ct. 528
19 L.Ed.2d 621
CASE-SWAYNE COMPANY, Inc., Petitioner,v.SUNKIST GROWERS, INC.
No. 66.
Argued Oct. 18, 19, 1967.
Decided Dec. 18, 1967.
Rehearing Denied Jan. 29, 1968.
See 390 U.S. 930, 88 S.Ct. 846.
William H. Henderson, Washington, D.C., for petitioner.
Seth M. Hufstedler, Los Angeles, Cal., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
This is a treble-damage action under § 4 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 15, for alleged violations of both § 1 and § 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. §§ 1, 2. The District Court granted a directed verdict, at the close of plaintiff's case, for the defendant, Sunkist Growers, Inc. The Court of Appeals for the Ninth Circuit reversed as to that portion of the complaint predicated on § 2 of the Sherman Act, holding that sufficient evidence was presented that Sunkist monopolized or attempted to monopolize trade in the relevant market;1 it affirmed as to the dismissal of the Sherman Act § 1 charge, holding that Sunkist qualified as a cooperative organization under the Capper-Volstead Act, 42 Stat. 388, 7 U.S.C. § 291,2 and therefore could not be held for any intraorganizational conspiracy to restrain trade. In order to determine the scope of that exemption from the antitrust laws, we granted certiorari. 387 U.S. 903, 87 S.Ct. 1686, 18 L.Ed.2d 621 (1967).
2
The issue is whether Sunkist is an association of '(p)ersons engaged in the production of agricultural products as * * * fruit growers' within the meaning of the Capper-Volstead Act, notwithstanding that certain of its members are not actually growers. We hold that it is not.
I.
3
The organizational structure of the Sunkist system is as follows. At the base are some 12,000 growers of citrus fruit in Arizona and California. The growers are organized into 'local associations,' as they are designated in Sunkist's bylaws, numbering approximately 160, each of which operates a packing house for the preparation of the fruit for market. The vast majority of these local associations—about 80% by number and 82% by volume of fruit marketed in the Sunkist system—are, it is stipulated, cooperative associations in which all members are fruit growers.3 A few of the local associations—no more than 5% by number and volume of fruit—are corporate growers whose total volume is sufficient to justify installation of their own packing house facilities.
4
The remainder of the local associations (also designated as 'agency association')—about 15% by number handling about 13% of the fruit in the Sunkist system—are private corporations and partnerships, owning and operating packing houses for profit. Their relationship to the growers whose fruit they handle is defined not by a cooperative agreement but by a marketing contract, i.e., these packing houses contract with each grower to handle his fruit for cost plus a fixed fee. It is the membership of these agency associations in the Sunkist system that gives rise to the issue presented here.
5
The local associations, including these private packing houses, are members of 'district exchanges,' non-profit membership corporations. The principal functions of the approximately threescore district exchanges are in the marketing of the fresh fruit of their member associations; they negotiate sales, arrange for shipment, and serve as conduits of communication between the local associations and Sunkist. Representatives of the district exchanges select the board of directors of Sunkist.
6
Sunkist itself, since 1958,4 has two classes of 'members': the district exchanges, whose principal membership function is to select the board of directors, and the local associations, which vote on all other matters and which have the proprietary ownership of Sunkist's assets. The corporate entity Sunkist Growers, Inc., owns the trade name 'Sunkist' under which the fruit of its members is marketed. It has an extensive sales organization; employs marketing and traffic specialists; and performs many other services for its members through, for example, its research facilities.
7
More particularly, Sunkist owns processing facilities for what is known as 'product' fruit, i.e., fruit that for various reasons it not sold in the fresh fruit market, but rather is used for processed fruit products such as canned or concentrated juices.
8
Sunkist controls approximately 70% of the oranges grown in California and Arizona, and approximately 67% of the product oranges. This control is manifested through various contractual agreements. For example, each grower in the cooperative local associations agrees that he will market all of his fruit through his association. Each grower who contracts with an agency association packing house appoints it as the marketing agent for all of his fruit. That agreement is generally for five shipping seasons, although it may be canceled by any time 'by mutual consent' or on written notice by the grower during August of any year in which it is in force. An escape clause permits the grower to sell such fruit as may be 'mutually agreed upon' between him and the packing house to others, if he can obtain a price higher, in the judgment of the packing house, than that which the grower would obtain through his agreement with it. Should the grower be so released from his agreement, he is to pay to the packing house $2.50 per ton of fruit released.
9
Each of the local associations, including the private packing house agency associations, contracts with its district exchange and with Sunkist Growers, Inc., to market all of its fruit—product and fresh—in the Sunkist system. Each association, under the Sunkist-District Exchange-Association Agreement, reserves the right to decide to what market it will ship and what price it is willing to receive for its fruit; however, Sunkist may decide to pool product fruit and fruit for export, in which event that fruit is handled solely in Sunkist's discretion. Sunkist also determines 'the maximum amount of fresh fruit to be marketed currently,' and allocates the 'opportunity to ship equitably among Local Associations.' Each local association agrees not to release any of its growers from the marketing contract without notifying its district exchange and Sunkist, and must obtain the approval of both if releases total more than 5% of the volume of the particular variety of fruit handled by the association. Further, each district exchange and local association agrees that '(a)ll prices, quotations and allowances shall be issued and distributed solely by Sunkist.'
10
Petitioner Case-Swayne manufacturers single-strength orange juice and other blended orange juices. In its complaint, insofar as relevant to the issues here, petitioner charged that the Sunkist system was a conspiracy in restraint of trade in violation of § 1 of the Sherman Act, the effect of which was to limit sharply the supply of product citrus fruit available to petitioner during the period covered by the complaint.
II.
11
Section 1 of the Capper-Volstead Act (see n. 2, supra) privileges collective activity in processing and marketing on the part of '(p)ersons engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut or fruit growers * * *.' 42 Stat. 388, 7 U.S.C. § 291. Despite that specific language, Sunkist argues that Congress, in enacting the measure, intended to give sanction to any organizational form by which the benefits of collective marketing inured to the grower; and that, because the agency packing houses, by charging cost plus a fixed fee5 for their services, do not participate directly in the gain or loss involved in the collective marketing of fruit through the Sunkist system, they are in the Sunkist system a privileged form of organization for the growers who contract with them.6 We think that argument misconceives the requirements of the Act and runs counter to the relevant legislative history.
12
Congress enacted § 6 of the Clayton Act in response to the urgings of those who felt the Sherman Act's prohibition against combinations in restraint of trade might be applied to imperil the development of cooperative endeavors, principally unions.7 That section provided that the antitrust laws were not to be 'construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help, and not having capital stock or conduted for profit,' i.e., such organizations were not to be deemed 'illegal combinations or conspiracies in restraint of trade * * *.' 38 Stat. 731, 15 U.S.C. § 17. From the standpoint of agricultural cooperatives, the principal defect in that exemption was that it applied only to nonstock organizations. The Capper-Volstead Act was intended to clarify the exemption for agricultural organizations and to extend it to cooperatives having capital stock.8
13
The reports on both H.R. 13931, the predecessor bill that failed of passage, and H.R. 2373, which became the Capper-Volstead Act, state:
14
'Section 1 defines and limits the kind of associations to which the legislation applies. These limitations are aimed to exclude from the benefits of this legislation all but actual farmers and all associations not operated for the mutual help of their members as such producers.' (Emphasis added.) H.R.Rep. No. 24, 67th Cong., 1st Sess., 1 (1921); H.R.Rep. No. 939, 66th Cong., 2d Sess., 1 (1920).
15
That it was intended that only actual producers of agricultural products be covered by the legislation is demonstrated in the debates on the two bills, e.g., the following exchange involving Senator Kellogg, a principal sponsor of the measure:
16
'Mr. CUMMINS. * * * Are the words 'as farmers, planters, ranchmen, dairymen, nut or fruit growers' used to exclude all others who may be engaged in the production of agricultural products, or are those words merely descriptive of the general subject?
17
'Mr. KELLOGG. I think they are descriptive of the general subject. I think 'farmers' would have covered them all.
18
'Mr. CUMMINS. I think the Senator does not exactly catch my point. Take the flouring mills of Minneapolis: They are engaged, in a broad sense, in the production of an agricultural product. The packers are engaged, in a broad sense, in the production of an agricultural product. The Senator does not intend by this bill to confer upon them the privileges which the bill grants, I assume?
19
'Mr. KELLOGG. Certainly not; and I do not think a proper construction of the bill grants them any such privileges. The bill covers farmers, people who produce farm products of all kinds, and out of precaution the descriptive words were added.
20
'Mr. TOWNSEND. They must be persons who produce these things.
21
'Mr. KELLOGG. Yes; that has always been the understanding.'9
22
To be sure, a principal concern of Congress was to prohibit the participation in the collectivity of the predatory middleman, the speculator who bought crops on the field and returned but a small percentage of their eventual worth to the grower. Sunkist focuses on the expression of that concern, urging that the agency associations are not such predatory middlemen. That focus is wide of the mark. We deal here with 'special exceptions to a general legislative plan,' Allen Bradley Co. v. Local Union No. 3, 325 U.S. 797, 809, 65 S.Ct. 1533, 1540, 89 L.Ed. 1939 (1945) (§ 6 of the Clayton Act), and therefore we are not justified in expanding the Act's coverage, which otherwise appears quite plain. The Act states those whose collective activity is privileged under it; that enumeration is limited in quite specific terms to producers of agricultural products.10
23
Nor does the proviso in § 1—'(t)hat such associations are operated for the mutual benefit of the members thereof'—broaden the earlier language. That provision, in conjunction with the other prerequisites for qualification under the Act—either that each member be limited to one vote without regard to the capital he furnished or that dividends on capital be limited to 8%, and that dealings in products of nonmembers be limited—was designed to insure that qualifying associations be truly organized and controlled by, and for, producers. In short, Congress was aware that even organizations of producers could serve a purpose other than the mutual obtaining of a fair return to their members, as producers, or be controlled by persons other than producers, and the proviso adds a measure of insurance that such organizations do not gain the Act's benefits.11 Moreover, virtually the only mention in the legislative history of possible participation in a Capper-Volstead cooperative by nonproducers occurs with respect to cooperatives issuing capital stock.12 Whatever may be the effect and significance of that recognition of the financial stake of nonproducers in an otherwise solely producer organization, their participation and role being narrowly restricted by the voting and dividend prerequisites of the Act, they are unpersuasive here. Capital participation by nonproducers—and that is the extent to which the debates can fairly be read as contemplating their participation at all13—does not directly enlarge the market share already possessed by the producers themselves. The participation in Sunkist of the agency associations has precisely that effect.
24
Sunkist suggests that 'membership' of the agency associations has no 'economic significance,' relying on that provision of the Capper-Volstead Act permitting an association to deal in the products of nonmembers. The argument is that if the agency packing houses were not members of the Sunkist system, Sunkist would still be free to handle their products. But this Court has held that the antitrust implications of the relationship between a cooperative association and others is governed by entirely different standards. 'The right of * * * agricultural producers thus to unite (under the Act) * * * cannot be deemed to authorize any combination or conspiracy with other persons in restraint of trade that these producers may see fit to devise.' United States v. Borden Co., 308 U.S. 188, 204—205, 60 S.Ct. 182, 191, 84 L.Ed. 181 (1939); accord, Maryland & Virginia Milk Producers Assn. v. United States, 362 U.S. 458, 466—467, 80 S.Ct. 847, 853—854, 4 L.Ed.2d 880 (1960). Moreover, the agency associations participate in the control and policy making of Sunkist, even though they may be private profitmaking operations.14 We think Congress did not intend to allow an organization with such nonproducer interests to avail itself of the Capper-Volstead exemption.15
25
The judgment below is reversed and the case is remanded for further proceedings consistent with this opinion.
26
It is so ordered.
27
Reversed and remanded for further proceedings.
28
Mr. Justice HARLAN, concurring in part and dissenting in part.
29
I agree with the Court's holding that Congress did not intend that nonstock organizations with nonproducer members should qualify for the antitrust exemption conferred by § 1 of the Capper-Volstead Act, 7 U.S.C. § 291, and that the Sunkist system therefore is technically not a properly constituted Capper-Volstead cooperative. However, like my Brother WHITE, I am unable to ignore the possible effect of the Court's holding insofar as it subjects this large agricultural organization to antitrust liability extending far beyond the confines of this suit.
30
There is nothing in the record to indicate that Sunkist intended to evade the mandate of the Capper-Volstead Act when it allowed privately owned 'agency association' packing houses to become members of the Sunkist system. Sunkist's only apparent motive in including the agency associations as members was to provide a greater range of packing facilities for citrus growers who desired to market through Sunkist. The agency associations have been an integral part of the Sunkist system for many years.1 Until the bringing of the present action, this aspect of Sunkist's organization had apparently gone without challenge from private persons who dealt with Sunkist. Its legality never seems to have been questioned by any agency of government. Sunkist argued before us, without challenge to its sincerity, that the membership of the agency associations did not deprive it of antitrust immunity so long as all of its actions were taken for the benefit of the growers. There is no reason to doubt that this has been Sunkist's belief through the years.
31
In these circumstances, it seems inequitable that the membership of the agency associations should cause Sunkist to lose all of its previously assumed immunity from liability under § 1 of the Sherman Act. This would evidently be the consequence of the Court's holding, and if not mitigated in any way it would appear to expose Sunkist to very large liabilities. Many of the activities of a marketing organization the size of Sunkist presumably amount to restraints of trade, and under the Court's rationale Sunkist would be subject to treble damage suits in respect of all of them. The chief result would be to allow windfall treble damage recoveries to persons with whom Sunkist dealt at arm's length and in good faith. The main burden would ultimately fall on the growers at the base of the Sunkist organization.
32
I would hold that Sunkist is not liable under § 1 of the Sherman Act for past acts merely because the agency associations participated in its government by virtue of their membership. It seems to me that this result is not only more equitable but accords better with the basic purpose of Congress, which was to aid producers, than does the Court's holding, which burdens the growers with heavy potential liabilities. This belief is supported by the frequent reference in the congressional debates to the forerunner of this very organization as one which Congress intended by the Act to protect.2 Sufficient precedent for this type of equitable mitigation is found in Sunkist Growers, Inc. v. Winckler & Smith Citrus Products Co., 370 U.S. 19, 82 S.Ct. 1130, 8 L.Ed.2d 305, in which this Court held that Sunkist's former 'tripartite' structure did not deprive it of its § 1 immunity. The Court there stated that
33
'To hold otherwise would be to impose grave legal consequences upon organizational distinctions that are of de minimis meaning and effect to these growers who have banded together for processing and marketing purposes within the purview of the Clayton and Capper-Volstead Acts.' Id., at 29, 82 S.Ct., at 1136.
34
The very words of Capper-Volstead § 1, however, make it clear that Congress granted antitrust immunity to agricultural cooperatives only on condition that all of the benefits of cooperative organization were received by agricultural producers. Therefore, I would also hold that Sunkist may not assert antitrust immunity if the damage complained of resulted from attempts by the agency associations to use their power within Sunkist for their own benefit as distinguished from that of the growers.
35
The Court holds, and, for the future, I agree, that even those organizations in which all gains are channeled to the producers may not qualify under Capper-Volstead § 1 if they have nonproducer members. Congress may have excluded nonproducers simply because it felt that the benefits to producers from nonproducer membership were outweighed by the dangers of admitting nonproducer foxes into the cooperative hen roost. However, as the Court recognizes, see ante, at 394-395, the evident congressional concern about the possibility of monopoly by organizations immunized from antitrust prosecution by Capper-Volstead3 indicates that in restricting membership to producers Congress also intended to limit in a rough way the amount of market power which could be controlled by such organizations. The resources of nonproducers were to be available to the cooperatives, not through the broad avenue of membership, but by the narrower path of contract: the Act provides that qualifying organizations and their members 'may make the necessary contracts and agreements' to effect the Act's purposes. To give effect to this legislative intent, I would hold that the marketing agreements of the agency associations with Sunkist and with individual growers must be tested by the standard applicable to contracts with nonmembers.
36
The Court of Appeals held that, treated as contracts with nonmembers, the agreements in question were proper under the Act. 369 F.2d 449, 461—462. I agree. Regarded as contracts, these agreements provide essentially that a grower who desires to market through the Sunkist system and have his fruit packed by an agency association shall deliver to such association his entire crop for the year, that the agency association shall pack it in return for cost plus a fixed fee, and that the entire crop shall then be marketed by Sunkist. The contract may be canceled by the grower in August of any year. Since the main effect of these agreements is simply to give the growers who want to market through Sunkist a wider choice of packing facilities than they would enjoy if limited to cooperative packing houses, I would hold that the agreements are permissible when looked upon as contracts with nonmembers.
37
In accord with this opinion, I would remand the case to the District Court so that Case-Swayne may show what, if any, of the damage allegedly suffered by it resulted from actions taken by the agency associations for their own benefit as distinguished from that of the growers. I need hardly say that for the future Sunkist would forfeit its entire Capper-Volstead antitrust exemption were it to elect to continue the membership of the agency associations.
38
Mr. Justice WHITE, with whom Mr. Justice STEWART joins, concurring in the result.
39
I agree with Court's basic judgment that Congress intended to grant immunity from the antitrust laws only to the cooperative efforts of '(p)ersons engaged in the production of agricultural products as farmers, planters ranchmen, dairymen, nut or fruit growers * * *.' Arrangements between growers and nongrowers are subject to scrutiny under the antitrust laws. Under the controlling decisions any combination between Sunkist and nongrower packing houses, were they not members of Sunkist, would have to meet the standards of the antitrust statutes. United States v. Borden Co., 308 U.S. 188, 60 S.Ct. 182, 84 L.Ed. 181 (1939). Making the nongrower a member of the cooperative should not and does not immunize grower-nongrower transactions from any of the antitrust laws. Despite such membership, these transactions continue to be forbidden if they violate § 1. Indeed, membership should itself be looked upon as an agreement or combination between growers and nongrowers which, if it restrains trade, is subject to suit under the Sherman Act. Hence, since the complaint in this case encompassed a charge that certain arrangements between Sunkist and the nongrower agency associations denied product fruit to Case-Swayne and violated the antitrust laws, I agree that it was error to dismiss the § 1 charge on immunity grounds.
40
But it does not follow that Sunkist has lost its antitrust immunity completely. The bulk of its members are grower cooperatives or marketing agencies, and the great majority of its transactions are dealings with and for the account of these agricultural cooperatives which Congress clearly intended to exempt from the antitrust laws. An exempt organization may not conspire with an outsider to violate § 1, but if it does, it does not forfeit its immunity except for that transaction. I see no reason for a different consequence where the conspiracy or combination takes the form of granting membership in the exempt organization. If nongrower membership is a combination in restraint of trade or if any agreements between Sunkist and the nongrower member violate the Sherman Act, Case-Swayne should be able to collect treble damages for any injury flowing from such violations. But I see little basis for concluding that the membership of the agency association strips Sunkist of its status as an exempt cooperative and exposes it to what would be very extensive liability under the antitrust laws wholly unrelated to the nongrower affiliation.
41
At the base of the Sunkist organization are 12,000 growers who themselves are not members of Sunkist but who are members of local associations which operate packing houses and which pick, pack, and arrange for the marketing of the fruit grown by their members. Most of these local associations appear to qualify as exempt agricultural cooperatives. A relatively small number, however, the so-called agency associations, are privately owned packing houses which buy and pack the fruit of those growers with whom they contract. The local associations, including the agency associations, are in turn organized into district exchanges which, unless agency association membership disqualifies some of them, would seem also to be exempt cooperatives. The district exchanges are primarily marketing organizations. Sunkist, a member corporation, is at the top of the pyramid. Among other things, it has ultimate authority and responsibility for the marketing of both fresh and product fruit.
42
Membership in Sunkist is made up of the local associations and the district exchanges. The agency associations make up about 15% of the membership. They have, however, no direct voice in the election of Sunkist directors since the selection of directors is vested in the exchange members alone. The directors have very wide authority to conduct the affairs of Sunkist. Under the charter and bylaws, general membership carries with it little power and influence. Membership does, however, involve the execution of a membership application and agreement binding the member to Sunkist's charter and bylaws, which give Sunkist extensive powers over the marketing of its members' fruit, including the power to confine the packing, processing, and marketing functions to the Sunkist family. In addition, local associations and exchanges apparently execute the standard 'Sunkist-District Exchange-Association Agreement' which, among other things, contains the agreement by the local association to market fruit exclusively through the exchanges and by the exchange to market exclusively through Sunkist.
43
If Sunkist's exemption is completely lost because of the membership of the nongrower agency associations, several consequences follow. Those district exchanges which have nongrower members will likewise forfeit their exemption. The arrangements among Sunkist exempt exchanges, and exempt local associations will be looked upon as arrangements between exempt and nonexempt organizations. Thus for all practical purposes the entire Sunkist structure will be exposed to antitrust liability for a great many transactions which are wholly between growers or between their cooperative organizations, transactions which Congress intended to exempt from the antitrust laws.
44
Neither the agency associations themselves nor their arrangements with growers are claimed by Sunkist to be Capper-Volstead cooperatives exempt because of that status from examination under the Sherman Act. Also, the contracts and arrangements between the agency associations, nonexempt entities, and the exchanges and Sunkist, which should be treated as otherwise exempt entities, are themselves within the reach of § 1. Among these nonexempt arrangements is the membership of an agency association in either an exchange or Sunkist itself. Case-Swayne should be able to recover from Sunkist those damages which flow from restraints of trade resulting from the agreements between the agency associations and Sunkist or between the agency associations and the district exchanges and from the membership of the agencies it either Sunkist or the exchanges. But Case-Swayne should not recover for injury to its business caused by other intercooperative or intergrower transactions and not resulting from the forbidden relationship between an exempt and a nonexempt entity. This result, in my view, will more nearly serve the policy of Congress in granting antitrust exemption to growers and their cooperative activities.
45
I would remand to the District Court for a trial of the § 1 case under the above principles.
46
Mr. Justice DOUGLAS, dubitante.
47
I am not as certain as Mr. Justice WHITE appears to be that the immunity of the growers or cooperatives granted by the Capper-Volstead Act is only partially lost in case nongrowers combine with the growers or cooperatives. But the question is certainly not free of doubt and it has not been argued. Nor have the questions discussed by Mr. Justice HARLAN been fully presented and argued. So far as we can tell at this stage of the litigation, all of those problems may turn out to be wholly abstract. The extent, let alone the nature, of participation by nongrower elements in the agreements and practices alleged to violate the antitrust laws has indeed hardly been explored. Therefore I think it is the part of wisdom specifically to reserve the questions with regard to the scope of the immunity that may survive today's ruling.
1
369 F.2d 449 (1966), cert. denied, 387 U.S. 932, 87 S.Ct. 2056, 18 L.Ed.2d 994 1967). See Maryland & Virginia Milk Producers Assn. v. United States, 362 U.S. 458, 80 S.Ct. 847, 4 L.Ed.2d 880 (1960); Sunkist Growers, Inc. v. Winckler & Smith Citrus Products Co., 370 U.S. 19, 82 S.Ct. 1130, 8 L.Ed.2d 305 (1962).
2
Section 1 of the Act reads:
'Persons engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut or fruit growers may act together in associations, corporate or otherwise, with or without capital stock, in collectively processing, preparing for market, handling, and marketing in interstate and foreign commerce, such products of persons so engaged. Such associations may have marketing agencies in common; and such associations and their members may make the necessary contracts and agreements to effect such purposes: Provided, however, That such associations are operated for the mutual benefit of the members thereof, as such producers, and conform to one or both of the following requirements:
'First. That no member of the association is allowed more than one vote because of the amount of stock or membership capital he may own therein, or,
'Second. That the association does not pay dividends on stock or membership capital in excess of 8 per centum per annum.
'And in any case to the following:
'Third. That the association shall not deal in the products of nonmembers to an amount greater in value than such as are handled by it for members.' 7 U.S.C. § 291.
3
'Limitation of membership in local associations to actual citrus-fruit producers is a cardinal principle of the Exchange (i.e., Sunkist) system.' Gardner & McKay, California Fruit Growers Exchange System 88 (U.S.Dept. of Agriculture, FCA Cir. No. C—135 (1950)). See also Cumberland, Cooperative Marketing—Its Advantages as Exemplified in the California Fruit Growers Exchange 87 (1917). The corporate name of Sunkist prior to 1952 was the California Fruit Growers Exchange.
4
In 1958, approximately the midpoint of the period relevant to this complaint, Sunkist altered its structure in two principal respects: first, local associations became members of Sunkist Growers directly, whereas under the old bylaws they had been represented through the district exchanges; second, two wholly owned corporate subsidiaries of Sunkist—Exchange Lemon Products Co. and Exchange Orange Products Co.—were merged into Sunkist. Since the parties have agreed that these changes in no way affect the issue here, we discuss Sunkist in its post-1958 form.
5
Under the marketing contract, the agency packing house obtains for its services 'all of its costs of every kind incurred in connection with' processing and marketing the fruit; the so-called 'fixed fee,' in the contract in this record, is an amount 'not in excess of 5 cents per field box on grapefruit, 10 cents on oranges,' etc. We are not advised how that fixed fee is determined, other than that it is the result of bargaining between the company and the grower. It may well be that the fixed fee is dependent on the benefits of collective marketing through Sunkist, in the limited sense that it represents to the parties that one can charge and the other can pay, both anticipating the return the grower may achieve through pooling his fruit with the Sunkist organization. The stipulation, we note, provides only that the agency association 'does not itself participate in either the gain or loss involved in marketing fruit through Sunkist beyond the recovery of its costs and fixed fee for packing.' (Emphasis added.) In our view, however, that discrepancy in the record is not crucial to the decision here.
6
The majority below held that the issue here was resolved sub silentio in favor of Sunkist in Sunkist Growers, Inc. v. Winckler & Smith Citrus Products Co., 370 U.S. 19, 82 S.Ct. 1130, 8 L.Ed.2d 305 (1962). But nongrower participation in Sunkist was not pointed out nor was the issue raised in that case; indeed, it was conceded by the respondents there that Sunkist was a Capper-Volstead cooperative.
7
See H.R.Rep.No. 627, 63d Cong., 2d Sess., 14—16 (1914); Allen Bradley Co. v. Local Union No. 3, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939 (1945).
8
The purpose and object of the limited exemption of the Capper-Volstead Act is fully discussed in Maryland & Virginia Milk Producers Assn. v. United States, 362 U.S. 458, 464—468, 80 S.Ct. 847, 852—854 (1960); see also Hanna, Antitrust Immunities of Cooperative Associations, 13 Law & Contemp.Prob. 488 (1948).
9
62 Cong.Rec. 2052 (1922). See also 60 Cong.Rec. 369 (1920) (remarks of Senator Lenroot). It is significant that an amendment was offered on the floor of the Senate to bring within the bill processors of agricultural products where the grower's return depended upon the price the processor obtained for the finished product, reference being made to the beet sugar manufacturer. 62 Cong.Rec. 2273 (1922). Like Sunkist's argument here, it was stated that 'the beneficiary of this (amendment) would be the producer.' Id., at 2274. But as Senator Norris stated in opposition to the inclusion of the processors (id., at 2275):
'They are not cooperators; they are not producers; it is not an organization composed of producers who incorporate together to handle their own products * * *.'
The amendment was rejected. Id., at 2275, 2281.
10
See Hulbert, Legal Phases of Farmer Cooperatives 170 (U.S.Dept. of Agriculture, FCS Bull. No. 10, 1958):
'This and other language which appears in the act make it plain that a cooperative, to come within the act, must be composed of producers.'
See also Hulbert, Legal Phases of Cooperative Associations 45 (U.S.DEpt. of Agriculture, Bull.No. 1106, 1922); Mischler, Agricultural Cooperative Law, 30 Rocky Mt.L.Rev. 381, 385 (1958); 36 Op.Atty.Gen. 326, 339 (1930); Note, 44 Va.L.Rev. 63, 69—70, 100 (1958).
11
Cf. Sheffield Farms Co., 44 F.T.C. 555 (1948); Gold Medal Farms, Inc., 29 F.T.C. 356 (1939).
12
E.g., 62 Cong.Rec. 2271 (1922); 60 Cong.Rec. 365 (1920).
Sunkist—a membership, rather than stock, corporation—points out that it, then known as the California Fruit Growers Exchange, was favorably referred to during the debates, see, e.g., 62 Cong.Rec. 2052, 2267, 2271, 2277 (1922); 60 Cong.Rec. 312, 315, 360—361, 370 (1920). There is nothing to show, however, that Congress was aware that nonproducers participated in the marketing of fruit in the Sunkist system; in our reading of those references, it is more likely that Congress assumed the organization was solely of producers. For that matter, Senator Walsh, for one, doubted that the Exchange's federation of cooperative associations would even be encompassed by the Act (62 Cong.Rec. 2277—2278). In any event, we cannot take those remarks as intending specific approval of Sunkist, in light of the language of the Act and its other history.
13
It was recognized, for example, that producers who desired to organize for collective marketing might not have, at the outset, the necessary finances to do so, and might therefore seek capital from nonproducers. See 60 Cong.Rec. 365 (1920) (remarks of Senator Walsh); 62 Cong.Rec. 2271 (1922) (same); 62 Cong.Rec. 2273 (1922) (remarks of Senator Norris). See also Hearings on H.R. 2373 before a Subcommittee of the Senate Judiciary Committee, 67th Cong., 1st Sess. (1921).
14
As such, the agency association's interests may in some situations be antithetical to those of the growers with which it has contracted. For example, Sunkist has the power to review contracts between growers and the agency associations. Obviously, to the extent that the agency associations are represented in the councils of Sunkist, they in effect review their own contracts.
15
All we decide is that Sunkist Growers, Inc., is not entitled to assert Capper-Volstead as a defense to the suit based on § 1 of the Sherman Act. We express no views on the merits of that suit.
1
It appears that the agency associations have been members of the system at least since 1924. See McKay & Stevens, Organization and Development of a Cooperative Citrus-Fruit Marketing Agency 22—23 (U.S. Dept. of Agriculture, Bull. No. 1237, 1924).
2
See n. 12, ante, p. 394.
3
See, e.g., 62 Cong.Rec. 2217—2226, 2257—2280.
| 78
|
389 U.S. 560
88 S.Ct. 660
19 L.Ed.2d 770
COMMONWEALTH OF MASSACHUSETTS, Petitioner,v.Donald M. PAINTEN.
No. 37.
Argued Oct. 18, 1967.
Decided Jan. 15, 1968.
Elliot L. Richardson, Boston, Mass., for petitioner.
Louis M. Nordlinger, Boston, Mass., for respondent.
PER CURIAM.
1
In 1958 respondent was tried and convicted in Middlesex Superior Court, Massachusetts, for armed robbery of a bank and related offenses. He appealed, and in 1961 his conviction was affirmed by the Supreme Judicial Court of Massachusetts, sub nom. Commonwealth v. Binkiewicz, 342 Mass. 740, 175 N.E.2d 473.
2
Respondent eventually filed a petition for a writ of habeas corpus in the Federal District Court. Testimony was taken by the District Court on December 30, 1965. It ruled that respondent's Fourth Amendment rights had been violated by the entry into his apartment, by his arrest, and by the search and seizure of certain articles in his apartment which were introduced in evidence against him. Accordingly, it set aside his conviction and ordered his release.1 Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The Court of Appeals affirmed.2 We granted certiorari because of the importance of the constitutional issues presented.3
3
At the time of respondent's trial in 1958, Massachusetts did not have an exclusionary rule for evidence obtained by an illegal search or seizure, Commonwealth v. Wilkins, 243 Mass. 356, 138 N.E. 11 (1923); Commonwealth v. Spofford, 343 Mass. 703, 706, 180 N.E.2d 673, 675 (1962), and the parties did not focus upon the issues now before us. The evidentiary hearing in 1965 took place almost eight years after the events.
4
After oral argument and study of the record, we have reached the conclusion that the record is not sufficiently clear and specific to permit decision of the important constitutional questions involved in this case. The writ is therefore dismissed as improvidently granted. Cf. Smith v. Mississippi, 373 U.S. 238, 83 S.Ct. 1265, 10 L.Ed.2d 321 (1963).
5
Dismissed.
6
Mr. Justice FORTAS, concurring.
7
The dissent written by my Brother WHITE, with whom my Brothers HARLAN, and STEWART join, impels me to add this note. I agree with the Court's action in dismissing the writ of certiorari for having been improvidently granted because the record is not adequate for disposition of the case in terms of its constitutional problems. Mr. Justice WHITE'S opinion is not in disagreement on this point. He would remand the case for a purpose which seems to me to be unreal: that is, to hold an inquiry, almost 10 years after the event, as to 'whether Officer Rufo could have believed that the bag had been abandoned and whether the bag was searched before or after guns were observed.' This inquiry—at this late date—is as elusive as an attempt to capture last night's moonbeam.
8
As some of my colleagues have often said, we do not sit as a court of criminal appeals to review judgments of state courts. The question in the instant case comes here as a result of federal habeas corpus proceedings. We should consider it if, and only if, we should and can dispose of it on its record in terms of constitutional principle. The Court's disposition of this case is based upon the sound premise that we should not use our certiorari jurisdiction to express our views on a point in a case which we cannot dispose of because of inadequacies of the record which cannot realistically be remedied.
9
I should not ordinarily feel it necessary to file a comment in this vein. In the present situation, I am troubled lest my Brother WHITE'S dissent should give the impression that only he and my Brothers HARLAN and STEWART believe that the court below erred in relying on its inferences as to the undisclosed intent of the officers. I agree with the Court's disposition of this case, not because I disagree with the position stated in the dissent on this issue, but because oral argument and detailed consideration of the case after certiorari was granted disclosed the infirmity of the record which precludes the orderly disposition of the case by this Court.
10
Mr. Justice WHITE, with whom Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting.
11
The Court granted certiorari1 because the rule of law applied by the Court of Appeals to the facts found by both it2 and the District Court3 raised troubling and difficult questions about the restrictions imposed by the Fourth Amendment on evidence that may be admitted at a criminal trial. The Court now says, quite rightly, that the record in this case is stale and the facts unclear. We have, however, a set of facts found by a United States District Court and approved by a Court of Appeals. Determining what legal consequences should follow from those facts is difficult, but is the task normally entrusted to this Court. I would accept the facts found by two federal courts and decide the questions of law presented to us.
12
The relevant facts foundbelow are as follows. Two police officers, having a suspicion that respondent had committed felonies but not having probable cause to believe that he had committed them, went to the door of respondent's apartment. Their motive, the courts below found, was to arrest and search, whether or not their investigation provided the probable cause that would make an arrest and search constitutional. This plan was not communicated to respondent, who when he came to the door was led to believe the officers wished only to speak to him. Told no more than that the officers wished to ask questions, respondent asked them to wait a minute, closed the door, tossed a paper bag onto a fire escape, returned, and let the officers enter. The officers did nothing to respondent but ask questions;4 while doing that another officer, posted below, who had seen the bag drop, walked through the apartment and out onto the fire escape, where he found guns and bullets in the bag. The officers arrested respondent, and undertook a complete search of the apartment incident to the arrest.
13
On these facts the District Court concluded that '(s)ince the officers had no probable cause to arrest when they entered the apartment they cannot retroactively validate the entry or arrest by reliance on what they discovered as a result of the illegal entry.' 252 F.Supp., at 857. The Court of Appeals agreed, saying that the officers 'set out to arrest and search (respondent) in the hope that evidence would develop,' and that 'since their actions were improper, the police were not entitled to the fruits.' 368 F.2d, at 144. The question is thus whether the fact that the officers were not truthful in telling respondent their intentions required that the evidence found by the policemen after they entered the apartment be barred from admission at respondent's trial as a 'fruit' of unlawful police conduct.
14
The position of the courts below must rest on a view that a policeman's intention to offend the Constitution if he can achieve his goal in no other way contaminates all of his later behavior. In the case before us the syllogism must be that although the policeman's words requested entry for the purpose of asking respondent questions, and the policeman—on being allowed to enter did nothing to respondent but ask questions, the 'fruits' of the policeman's otherwise lawful request to enter and question—the bag tossed out of the window and into a place where it could be seen from the street—should not be usable by the State. This is because the policeman was willing, had his lawful conduct not developed probable cause justifying respondent's arrest, to search respondent's apartment unlawfully in the hope of finding evidence of a crime.
15
That such a rule makes no sense is apparent when one sees it in the context of an abstruse application of the exclusionary rule, imposed on the States as the only available way to encourage compliance by state police officers with the commands of the Fourth Amendment. See Mapp v. Ohio, 367 U.S. 643, 652—653, 81 S.Ct. 1684, 1690, 1691, 6 L.Ed.2d 1081 (1961). Because we wish to deter policemen from searching without a warrant, we would bar admission of evidence Officer McNamara discovered by ransacking respondent's apartment without a warrant or a basis for warrantless search. The expanded exclusionary rule applied in the opinions below would be defensible only if we felt it important to deter policemen from acting lawfully but with the plan—the attitude of mind—of going further and acting unlawfully if the lawful conduct produces insufficient results. We might wish that policemen would not act with impure plots in mind, but I do not believe that wish a sufficient basis for excluding, in the supposed service of the Fourth Amendment, probative evidence obtained by actions—if not thoughts—entirely in accord with the Fourth Amendment and all other constitutional requirements. In addition, sending state and federal courts on an expedition into the minds of police officers would produce a grave and fruitless misallocation of judicial resources. I voted to grant certiorari in this case in the hope the Court would state that the Court of Appeals erred in its view that a policeman's unlawful subjective intentions require exclusion of evidence obtained by lawful conduct, and I would not dismiss while the opportunity of so stating remains.
16
A second ground that could support a view that the officers' entry was unlawful is the position that the policemen's untruths their failure to tell respondent of their plan—'vitiated' his consent to their entry. I might not agree with, but I could understand, a position that police officers acting without a warrant can obtain lawful consent to enter a home and ask questions only by explaining to the occupants that they have a constitutional right to deny admission, even to officers of the law conducting an authorized and necessary investigation. But I cannot understand a view that consent is permissible if given in response to a mere request to enter uttered by a policeman wishing only to ask questions but not if given to a policeman who says he wishes to question but in fact intends to do more. If the policeman does more we will bar admission of the fruits of his illegal action. But if he does only so much as he has told the occupant he will do, and so less than he was willing to do, the occupant's consent was to the conduct which occurred; in that case there is no reason to exclude what the policeman learns from doing what the occupant consented to his doing.
17
There remains a possibility that respondent's confinement may offend the Constitution. When the officers entered respondent's apartment, they had permission to ask questions but no permission to search. Had they looked in closets or drawers, or even in a closed paper bag lying in view, they would have been acting in violation of the Fourth Amendment. The paper bag containing the guns was on a fire escape attached to an apartment other than respondent's, but that alone did not give the officers permission to seize it. The Fourth Amendment's protection extends to 'effects' as well as to 'persons, houses, papers.' Of course 'abandoned' property may be seized, Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668 (1960), but neither court below inquired whether Officer Rufo reasonably believed this bag had been abandoned or instead should reasonably have thought respondent had set it on the fire escape temporarily without wishing to abandon it, cf. Rios v. United States, 364 U.S. 253, 262, n. 6, 80 S.Ct. 1431, 1437, 4 L.Ed.2d 1688 (1960). If the bag was not abandoned, another question of fact is relevant: whether Officer Rufo saw that the bag contained guns before he opened it, or opened the bag and then saw the guns. Since neither the District Court nor the Court of Appeals reached these issues, I would vacate the judgment of the Court of Appeals and remand the case to the District Court to determine whether Officer Rufo could have believed that the bag had been abandoned and whether the bag was searched before or after guns were observed.5
1
252 F.Supp. 851 (D.C.Mass.1966).
2
368 F.2d 142 (C.A.1st Cir. 1966).
3
386 U.S. 931, 87 S.Ct. 955, 17 L.Ed.2d 805 (1967).
1
386 U.S. 931, 87 S.Ct. 955, 17 L.Ed.2d 805 (1967).
2
368 F.2d 142 (C.A.1st Cir. 1966).
3
252 F.Supp. 851 (D.C.Mass.1966).
4
One officer 'stuck his hand into' the pocket of respondent's companion, one Ash, and 'found about $200.00 in ten and twenty dollar bills stuffed in the pocket.' 252 F.Supp., at 856. The bills were apparently not introduced at respondent's trial, but the officers' conduct in searching Ash without justification may well have influenced the courts below on the question of the officers' intentions.
5
Mr. Justice FORTAS, although he does not disagree with the view that the Court of Appeals erred in issuing the writ of habeas corpus for the reasons which it gave, would nevertheless dismiss the writ of certiorari because the record is stale and inadequate with respect to the issue of abandonment. But if it was error to issue the writ of habeas corpus on the grounds relied on by the Court of Appeals—and there is no infirmity in the record with respect to this question—then the judgment should be reversed unless there is some other basis for the issuance of habeas corpus at the behest of this state prisoner. If the record is unclear with respect to this possible additional ground—here the search of the bag and the seizure of the guns—and it is thought undesirable to have the record reopened and the question clarified, the case should simply be reversed, not dismissed so that the erroneous judgment remains in effect. Habeas corpus should not issue and Painten should not be released unless the record clearly justifies such a judgment.
| 01
|
389 U.S. 477
88 S.Ct. 639
19 L.Ed.2d 716
W. Willard WIRTZ, Secretary of Labor, Petitioner,v.
LOCAL UNION NO. 125, LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL—CIO.
No. 58.
Argued Nov. 8 and 9, 1967.
Decided Jan. 15, 1968.
Louis F. Claiborne, Washington, D.C., for petitioner.
Mortimer Riemer, Cleveland, Ohio, for respondent.
Mr. Justice BRENNAN, delivered the opinion of the Court.
1
This is a companion case to No. 57, Wirtz v. Local 153, Glass Bottle Blowers Ass'n, 389 U.S. 463, 88 S.Ct. 643, 19 L.Ed.2d 705. Petitioner, the Secretary of Labor, filed the action in the District Court for the Northern District of Ohio, Eastern Division, under § 402(b) of the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 482(b). His complaint challenged the validity of a general election of union officers conducted by the respondent Local Union on June 8, 1963, and the validity of a runoff election for the single office of Business Representative made necessary by a tie vote for that office at the June 8 election. The complaint alleged, in part, violations of § 401(e), 29 U.S.C. § 481(e), in permitting members not 'in good standing' to vote and to run for office on both occasions. However, the only allegation that internal union remedies had been exhausted, as is required by § 402(a), was in regard to the runoff election of July 13; the complaint stated that the loser in the runoff election, one Dial, protested and appealed to the General Executive Board of the International Union concerning the conduct of that election and, having received a final denial of his protest by the General Executive Board, filed a timely complaint with the Secretary. The District Court held that the omission in the complaint of an allegation that a member complained internally about the conduct of the June 8 general election was fatal to the Secretary's action addressed to that election and dismissed that part of the complaint. D.C., 231 F.Supp. 590. The Secretary appealed to the Court of Appeals for the Sixth Circuit. During pendency of the appeal, respondent Local conducted its next regular triennial election of officers. The Court of Appeals thereupon vacated the judgment of dismissal and remanded to the District Court with instructions that the portion of the Secretary's complaint dealing with the June 8 election be dismissed as moot. 6 Cir., 375 F.2d 921.1 We granted certiorari. 387 U.S. 904, 87 S.Ct. 1686, 18 L.Ed.2d 621. In light of our decision today in Wirtz v. Local 153, Glass Bottle Blowers Assn., supra, the action of the Court of Appeals must be reversed; we there held that '* * * the fact that the union has already conducted another unsupervised election does not deprive the Secretary of his right to a court order declaring the challenged election void and directing that a new election be conducted under his supervision.' 389 U.S., at 475, 88 S.Ct., at 650.
2
In the circumstances we might remand to the Court of Appeals to decide the merits of the Secretary's appeal. The issue on the merits is whether the District Court erred in holding that the Secretary in his suit may not challenge the alleged violations affecting the general election of June 8 because Dial specifically challenged only the runoff election of July 13 with respect to the office of Business Representative. The merits of this question have been fully briefed and argued in this Court and the underlying issue of statutory construction has already been the subject of several and conflicting rulings by various federal courts.2 The interests of judicial economy are therefore best served if we proceed to resolve this important question now.
3
Respondent Local is governed by the Constitution and the Uniform Local Union Constitution of the Laborers' International Union of North America. Under the Uniform Local Union Constitution as it existed during the period relevant here, a member's good standing was lost by failure to pay membership dues within a specified grace period, and the member was automatically suspended without notice and with loss of all membership rights except the right to readmission (but as a new member) upon payment of a fee. The eligibility of voters and candidates in both elections in this case was determined by reference to a report to the International Union of the names of members for whom a per capita tax had been paid. This report included some 50 to 75 members who were delinquent in the payment of their Local dues and had therefore actually lost good standing under the provisions of the Uniform Local Union Constitution. The cause of this patent disregard of the Local's own constitution was the practice of its Secretary-Treasurer of paying from Local funds the per capita tax of delinquent members selected by him, thus making it appear on the per capita tax report that those members had met their dues obligations when in fact they had not.3 The Secretary's investigation disclosed that approximately 50 of the members voting in the June 8 general election and approximately 60 voting in the July 13 runoff election were ineligible to vote; and that 16 of the 27 candidates for office in the general election, including Dial's opponent who ultimately won the runoff, were ineligible for the same reason.
4
The question is one of statutory construction and must be answered by inference since there is lacking an explicit provision regarding the permissible scope of the Secretary's complaint. On the facts of this case we think the Secretary is entitled to maintain his action challenging the June 8 general election because respondent union had fair notice from the violation charged by Dial in his protest of the runoff election that the same unlawful conduct probably occurred at the earlier election as well.4 We therefore need not consider and intimate no view on the merits of the Secretary's argument that a member's protest triggers a § 402 enforcement action in which the Secretary would be permitted to file suit challenging any violation of § 401 discovered in his investigation of the member's complaint.
5
We reject the narrow construction adopted by the District Court and supported by respondent limiting the Secretary's complaint solely to the allegations made in the union member's initial complaint. Such a severe restriction upon the Secretary's powers should not be read into the statute without a clear indication of congressional intent to that effect. Neither the language of the statute nor its legislative history provides such an indication; indeed, the indications are quite clearly to the contrary.
6
First, it is most improbable that Congress deliberately settled exclusive enforcement jurisdiction on the Secretary and granted him broad investigative powers to discharge his responsibilities,5 yet intended the shape of the enforcement action to be immutably fixed by the artfulness of a layman's complaint which often must be based on incomplete information. The expertise and resources of the Labor Department were surely meant to have a broader play.6 Second, so to constrict the Secretary would be inconsistent with his vital role, which we emphasize today in Wirtz v. Local 153, Glass Bottle Blowers Assn., supra, in protecting the public interest bound up in Title IV. The Act was not designed merely to protect the right of a union member to run for a particular union office in a particular election. Title IV's special function in furthering the general goals of the LMRDA is to insure free and democratic union elections, the regulations of the union electoral process enacted in the Title having been regarded as necessary protections of the public interest as well as of the rights and interests of union members.
7
We can only conclude, therefore, that it would be anomalous to limit the reach of the Secretary's cause of action by the specifics of the union member's complaint. In an analogous context we rejected such a limiting construction of the National Labor Relations Board's authority to fashion unfair labor practice complaints. NLRB v. Fant Milling Co., 360 U.S. 301, 306—309, 79 S.Ct. 1179, 3 L.Ed.2d 1243; National Licorice Co. v. NLRB, 309 U.S. 350, 369, 60 S.Ct. 569, 84 L.Ed. 799.7
8
Respondent argues, however, that the spirit and letter of the statutory requirement that the member first exhaust his internal union remedies before the Secretary may intervene compels the suggested limitation. It contends that even to allow the Secretary to challenge the earlier election for the same violation established as having occurred in the runoff election would be inconsistent with Congress' intention to allow unions first opportunity to redress violations of § 401. This argument is not persuasive.
9
It is true that the exhaustion requirement was regarded by Congress as critical to the statute's objective of fostering union self-government. By channeling members through the internal appellate processes, Congress hoped to accustom members to utilizing the remedies made available within their own organization; at the same time, however, unions were expected to provide responsible and responsive procedures for investigating and redressing members' election grievances. These intertwined objectives are not disserved but furthered by permitting the Secretary to include in his complaint at least any § 401 violation he has discovered which the union had a fair opportunity to consider and redress in connection with a member's initial complaint.
10
Here the Secretary sought to challenge the June 8 general election, alleging that the same unlawful conduct occurring in the runoff affected the general election held only five weeks before. Dial's complaint had disclosed the fraudulent practice with respect to the runoff, and he was apparently able to prove at the hearing before the General Executive Board that that practice enabled nine ineligible members to vote in the runoff election; but his protest was denied because he had lost by 19 votes. The Secretary's investigation, however, discovered that a much larger number of ineligible members had been permitted to vote in that runoff election and that the Secretary-Treasurer responsible for the falsification prepared the per capita tax reports used to determine the eligibility of voters and candidates at both elections. Yet in the face of Dial's evidence raising the almost overwhelming probability that the misconduct affecting the runoff election had also occurred at the June 8 election, the union insists that it was under no duty to expand its inquiry beyond the specific challenge to the runoff election made by Dial. Surely this is not the responsible union self-government contemplated by Congress in allowing the unions great latitude in resolving their own internal controversies. In default of respondent's action on a violation which it had a fair opportunity to consider and resolve in connection with Dial's protest, the Secretary was entitled to seek relief from the court with respect to the June 8 election. Again, Congress, having given the Secretary a broad investigative power, cannot have intended that his right to relief be defined by a complaining member's ignorance of the law or the facts or by the artlessness of the member's protest.
11
Because the complaint as to the June 8 election was dismissed for deficiency in pleading, the factual allegations have not been tried. We therefore reverse the judgment of the Court of Appeals and remand to that court with direction to enter a judgment reversing the District Court's judgment of dismissal and directing further proceedings by that court consistent with this opinion.
12
It is so ordered.
13
Reversed and remanded with direction.
14
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
1
The order of dismissal in the District Court was entered July 14, 1964. On April 18, 1966, the District Court entered an order granting the Secretary's motion for summary judgment regarding the portion of his complaint directed to the runoff election of July 13, 1963, for the office of Business Representative. The runoff was conducted under the Secretary's supervision on June 11, 1966, the same day the union conducted the unsupervised intervening election. Dial lost the runoff.
2
Compare Wirtz v. Hotel, Motel and Club Employees Union, Local 6, 2 Cir., 381 F.2d 500; Wirtz v. Local Unions No. 9 et al., IUOE, 10 Cir., 366 F.2d 911; Wirtz v. Local 174, Musicians, 65 L.R.R.M. 2972; and Wirtz v. Local 450, IUOE, 63 L.R.R.M. 2105, which more or less support the view of the District Court herein, with Wirtz v. Local Unions No. 406, IUOE, D.C., 254 F.Supp. 962; Wirtz v. Local 705, Hotel Employees, 63 L.R.R.M. 2315; and Wirtz v. Local Union 169, International Hod Carriers, D.C., 246 F.Supp. 741, which support a broader view.
These conflicting views particularly justify our resolution of the question without remanding to the Court of Appeals. In contrast, the issue in No. 57, Wirtz v. Local 153, Glass Bottle Blowers Assn., supra, which we did remand to the Court of Appeals, was whether a standard not questioned by any party was properly applied to the particular facts.
3
The International Constitution required respondent Local to remit to the International a per capita tax payment of $1 per member per month. These payments were to be made only for members who had in fact made current payment of their dues to the Local.
4
See Wirtz v. Local Union 169, International Hod Carriers, supra, n. 2, at 246 F.Supp. 751—753.
Although the eligibility of Dial's opponent in the runoff was an issue before the District Court on the Secretary's motion for summary judgment, the judgment was granted on the ground of voter ineligibility; that judgment is not before us.
5
The Secretary's authority under § 601, 29 U.S.C. § 521, both supplements his investigative mandate under § 402(b) and authorizes inquiry without regard to the filing of a complaint by a union member. But when the Secretary investigates pursuant to § 601 without a member's complaint, his remedy is limited to disclosure of violations discovered. Whether violations of § 401 uncovered by a § 601 investigation may be the predicate of a member's protest to the union and an enforcement proceeding under § 402 if the union denies relief is a question we need not and do not reach in this case.
6
Senator Kennedy's reference to the Secretary as the complaining 'union member's lawyer,' 104 Cong.Rec. 10947, Leg.Hist. 1093 (Dept. Labor 1964), does not support the District Court's conclusion. The lawyer's function is to use his skills to give shape and substance to his client's often incompletely expressed complaint.
7
The fact that the National Labor Relations Act does not require prior exhaustion of internal union remedies does not destroy the analogy; nothing in our holding today dispenses with the exhaustion requirement of § 402(a).
| 67
|
389 U.S. 463
88 S.Ct. 643
19 L.Ed.2d 705
W. Willard WIRTZ, Secretary of Labor, Petitioner,v.LOCAL 153, GLASS BOTTLE BLOWERS ASSOCIATION, etc.
No. 57.
Argued Nov. 8, 1967.
Decided Jan. 15, 1968.
Louis F. Claiborne, Washington, D.C., for petitioner.
Albert K. Plone, Camden, N.J., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Petitioner, the Secretary of Labor, filed this action in the District Court for the Western District of Pennsylvania seeking a judgment declaring void the election of officers conducted by respondent Local Union on October 18, 1963, and directing that a new election be conducted under the Secretary's supervision.
2
Section 402(b) of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 482(b), authorizes the Secretary of Labor, upon complaint by a union member who has exhausted his internal union remedies, to file the suit when an investigation of the complaint gives the Secretary probable cause to believe that the union election was not conducted in compliance with the standards prescribed in § 401 of the Act, 29 U.S.C. § 481. If the court finds that a violation of § 401 occurred which 'may have affected the outcome of an election,' it 'shall declare the election, if any, to be void and direct the conduct of a new election under supervision of the Secretary.'1 The alleged illegality in the election was a violation of the provision of § 401(e), 29 U.S.C. § 481(e), that in a union election subject to the Act every union member 'in good standing shall be eligible to be a condidate and to hold office (subject to * * * reasonable qualifications uniformly imposed) * * *.' A Local bylaw provided that union members had to have attended 75% of the Local's regular meetings in the two years preceding the election to be eligible to stand for office.2 The union member whose complaint invoked the Secretary's investigation had not been allowed to stand for President at the 1963 election because he had attended only 17 of the 24 regular monthly meetings, one short of the requisite 75%; under the bylaws, working on the night shift was the only excusable absence and none of his absences was for this reason.
3
The District Court held that the meeting-attendance requirement was an unreasonable restriction upon the eligibility of union members to be candidates for office and therefore violated § 401(e),3 but dismissed the suit on the ground that it was not established that the violation 'may have affected the outcome' of the election. 244 F.Supp. 745. The Secretary appealed to the Court of Appeals for the Third Circuit. The appeal was pending when the Local conducted its next regular biennial election in October 1965. The Court of Appeals held that the Secretary's challenge to the 1963 election was mooted by the 1965 election, and therefore vacated the District Court judgment with the direction to dismiss the case as moot. In consequence, the court did not reach the merits of the question whether the unlawful meeting-attendance qualification may have affected the outcome of the 1963 election. 372 F.2d 86.4 Because the question whether the intervening election mooted the Secretary's action is important in the administration of the LMRDA, we granted certiorari, 387 U.S. 904, 87 S.Ct. 1686, 18 L.Ed.2d 621, and set the case for oral argument with No. 58, Wirtz v. Local Union No. 125, Laborers' Int'l Union, 389 U.S. 477, 88 S.Ct. 639, 19 L.Ed.2d 716. We reverse.
4
The holding of the Court of Appeals did not rest on any explicit statutory provision that on the happening of another unsupervised election the Secretary's cause of action should be deemed to have 'ceased to exist.' People of State of California v. San Pablo & T.R. Co., 149 U.S. 308, 313, 13 S.Ct. 876, 878, 37 L.Ed. 747.5 Indeed a literal reading of § 402(b) would more reasonably compel the contrary conclusion. For no exceptions are admitted by the unambiguous wording that when 'the violation of § 401 may have affected the outcome of an election, the court shall declare the election, * * * if any, to be void and direct the conduct of a new election under supervision of the Secretary. * * *' (Emphasis supplied.)
5
Nonetheless, this does not end the inquiry. We have cautioned against a literal reading of congressional labor legislation; such legislation is often the product of conflict and compromise between strongly held and opposed views, and its proper construction frequently requires consideration of its wording against the background of its legislative history and in the light of the general objectives Congress sought to achieve. See, e.g., National Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612, 619, 87 S.Ct. 1250, 1255, 18 L.Ed.2d 357. The LMRDA is no exception.6
6
A reading of the legislative history of the LMRDA, and of Title IV in particular, reveals nothing to indicate any consideration of the possibility that another election might intervene before a final judicial decision of the Secretary's challenge to a particular election. The only reasonable inference is that the possibility did not occur to the Congress.7 We turn therefore to the question whether, in light of the objectives Congress sought to achieve, the statute may properly be construed to terminate the Secretary's cause of action upon the fortuitous event of another unsupervised election before final judicial decision of the suit.
7
The LMRDA has seven subdivisions dealing with various facets both of internal union affairs and of labor-management relations. The enactment of the statute was preceded by extensive congressional inquiries upon which Congress based the findings, purposes, and policy expressed in § 2 of the Act, 29 U.S.C. § 401.8 Of special significance in this case are the findings that 'in the public interest' remedial legislation was necessary to further the objective 'that labor organizations * * * and their officials adhere to the highest standards of responsibility and ethical conduct in administering the affairs of their organizations * * *,' 29 U.S.C. § 401(a), this because Congress found, 'from recent investigations in the labor and management fields, that there have been a number of instances of breach of trust, corruption, disregard of the rights of individual employees, and other failures to observe high standards of responsibility and ethical conduct * * *' requiring 'supplementary legislation that will afford necessary protection of the rights and interests of employees and the public generally as they relate to the activities of labor organizations * * * and their officers and representatives.' 29 U.S.C. § 401(b).
8
Title IV's special function in furthering the overall goals of the LMRDA is to insure 'free and democratic' elections.9 The legislative history shows that Congress weighed how best to legislate against revealed abuses in union elections without departing needlessly from its long-standing policy against unnecessary governmental intrusion into internal union affairs.10 The extensive and vigorous debate over Title IV manifested a conflict over the extent to which governmental intervention in this most crucial aspect of internal union affairs was necessary or desirable. In the end there emerged a 'general congressional policy to allow unions great latitude in resolving their own internal controversies, and, where that fails, to utilize the agencies of Government most familiar with union problems to aid in bringing about a settlement through discussion before resort to the courts.' Calhoon v. Harvey, 379 U.S. 134, 140, 85 S.Ct. 292, 296, 13 L.Ed.2d 190.
9
But the freedom allowed unions to run their own elections was reserved for those elections which conform to the democratic principles written into § 401. International union elections must be held not less often than once every five years and local union elections not less often than once every three years. Elections must be by secret ballot among the members in good standing except that international unions may elect their officers at a convention of delegates chosen by secret ballot. 29 U.S.C. § 481(a), (b). Specific provisions insure equality of treatment in the mailing of campaign literature; require adequate safeguards to insure a fair election, including the right of any candidate to have observers at the polls and at the counting of ballots; guarantee a 'reasonable opportunity' for the nomination of candidates, the right to vote without fear of reprisal, and, pertinent to the case before us, the right of every member in good standing to be a candidate, subject to 'reasonable qualifications uniformly imposed.' 29 U.S.C. §§ 481(c), (e).
10
Even when an election violates these standards, the stated commitment is to postpone governmental intervention until the union is afforded the opportunity to redress the violation. This is the effect of the requirement that a complaining union member must first exhaust his internal union remedies before invoking the aid of the Secretary. 29 U.S.C. § 482(a). And if the union denies the member relief and he makes a timely complaint to the Secretary, the Secretary may not initiate an action until his own investigation confirms that a violation of § 401 probably infected the challenged election. Moreover, the Secretary may attempt to settle the matter without any lawsuit; the objective is not a lawsuit but to 'aid in bringing about a settlement through discussion before resort to the courts.' Chalhoon v. Harvey, supra. And if the Secretary must finally initiate an action, the election is presumed valid until the court has adjudged it invalid. 29 U.S.C. § 482(a). Congress has explicitly told us that these provisions were designed to preserve a 'maximum amount of independence and self-government by giving every international union the opportunity to correct improper local elections.' S.Rep.No.187, 86th Cong., 1st Sess., 21, 1 Leg.Hist. 417.
11
But it is incorrect to read these provisions circumscribing the time and basis for the Secretary's intervention as somehow conditioning his right to relief once that intervention has been properly invoked. Such a construction would ignore the fact that Congress, although committed to minimal intervention, was obviously equally committed to making that intervention, once warranted, effective in carrying out the basic aim of Title IV.11 Congress deliberately gave exclusive enforcement authority to the Secretary, having 'decided to utilize the special knowledge and discretion of the Secretary of Labor in order best to serve the public interest.' Calhoon v. Harvey, supra. In so doing, Congress rejected other proposals, among them plans that would have authorized suits by complaining members in their own right.12 And Congress unequivocally declared that once the Secretary establishes in court that a violation of § 401 may have affected the outcome of the challenged election, 'The court shall declare the election * * * to be void and direct the conduct of a new election under supervision of the Secretary * * *.' 29 U.S.C. § 482(c). (Emphasis supplied.)
12
We cannot agree that this statutory scheme is satisfied by the happenstance intervention of an unsupervised election. The notion that the unlawfulness infecting the challenged election should be considered as washed away by the following election disregards Congress' evident conclusion that only a supervised election could offer assurance that the officers who achieved office as beneficiaries of violations of the Act would not by some means perpetuate their unlawful control in the succeeding election. That conclusion was reached in light of the abuses surfaced by the extensive congressional inquiry showing how incumbents' use of their inherent advantage over potential rank and file challengers established and perpetuated dynastic control of some unions. See S.Rep.No.1417, 85th Cong., 2d Sess. These abuses were among the 'number of instances of breach of trust * * * (and) disregard of the rights of individual employees * * *' upon which Congress rested its decision that the legislation was required in the public interest.13 Congress chose the alternative of a supervised election as the remedy for a § 401 violation in the belief that the protective presence of a neutral Secretary of Labor would best prevent the unfairness in the first election from infecting, directly or indirectly, the remedial election. The choice also reflects a conclusion that union members made aware of unlawful practices could not adequately protect their own interests through an unsupervised election. It is clear, therefore, that the intervention of an election in which the outcome might be as much a product of unlawful circumstances as the challenged election cannot bring the Secretary's action to a halt. Aborting the exclusive statutory remedy would immunize a proved violation from further attack and leave unvindicated the interests protected by § 401. Title IV was not intended to be so readily frustrated.
13
Respondent argues that granting the Secretary relief after a supervening election would terminate the new officers' tenure prematurely on mere suspicion. But Congress, when it settled on the remedy of a supervised election, considered the risk of incumbents' influence to be substantial, not a mere suspicion. The only assurance that the new officers do in fact hold office by reason of a truly fair and a democratic vote is to do what the Act requires, rerun the election under the Secretary's supervision.
14
The Court of Appeals concluded that it would serve 'no practical purpose' to void an old election once the terms of office conferred have been terminated by a new election. We have said enough to demonstrate the fallacy of this reasoning: First, it fails to consider the incumbents' possible influence on the new election. Second, it seems to view the Act as designed merely to protect the right of a union member to run for a particular office in a particular election. But the Act is not so limited, for Congress emphatically asserted a vital public interest in assuring free and democratic union elections that transcends the narrower interest of the complaining union member.
15
We therefore hold that when the Secretary of Labor proves the existence of a § 401 violation that may have affected the outcome of a challenged election, the fact that the union has already conducted another unsupervised election does not deprive the Secretary of his right to a court order declaring the challenged election void and directing that a new election be conducted under his supervision.14
16
The judgment of the Court of Appeals is reversed and the case remanded to that court with direction to decide the merits of the Secretary's appeal.
17
It is so ordered.
18
Reversed and remanded with direction.
19
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
1
LMRDA § 402, 29 U.S.C. § 482:
'(a) A member of a labor organization—
'(1) who has exhausted the remedies available under the constitutional bylaws of such organization and of any parent body, or
'(2) who has invoked such available remedies without obtaining a final decision within three calendar months after their invocation,
may file a complaint with the Secretary within one calendar month thereafter alleging the violation of any provision of section 401 (including violation of the constitution and bylaws of the labor organization pertaining to the election and removal of officers). The challenged election shall be presumed valid pending a final decision thereon (as hereinafter provided) and in the interim the affairs of the organization shall be conducted by the officers elected or in such other manner as its constitution and bylaws may provide.
'(b) The Secretary shall investigate such complaint and, if he finds probable cause to believe that a violation of this title has occurred and has not been remedied, he shall, within sixty days after the filing of such complaint, bring a civil action against the labor organization as an entity in the district court of the United States in which such labor organization maintains its principal office to set aside the invalid election, if any, and to direct the conduct of an election or hearing and vote upon the removal of officers under the supervision of the Secretary and in accordance with the provisions of this title and such rules and regulations as the Secretary may prescribe. * * *
'(c) If, upon a preponderance of the evidence after a trial upon the merits, the court finds—
'(2) that the violation of section 401 may have affected the outcome of an election,
the court shall declare the election, if any, to be void and direct the conduct of a new election under supervision of the Secretary and, so far as lawful and practicable, in conformity with the constitution and bylaws of the labor organization. * * *
'(d) An order directing an election, dismissing a complaint, or designating elected officers of a labor organization shall be appealable in the same manner as the final judgment in a civil action, but an order directing an election shall not be stayed pending appeal.'
The complaining union member invoked his internal union remedies on October 24, 1963, and, not having received a final decision within three calendar months, filed a timely complaint with the Secretary.
2
Article IX, § 1, of the International Constitution provided that:
'All candidates for office, before nomination, must have attended 75 per cent of the meetings for at least two years prior to the election.'
Article 4, § 12, of the Local's bylaws provided:
'No member may be a candidate unless said member is in good standing and has attended seventy-five per cent (75%) of the regular local meetings since the last local election.'
And § 13 further provided:
'In cases where members have to work at the time of meetings, and so notify the Recording Secretary, they shall be marked present at such meetings, provided they notify the Secretary in writing within seventy-two (72) hours following the meeting. * * *'
3
As a consequence of the meeting-attendance requirement, only 11 of the 500-member Local were eligible to run for office in 1963. The Vice President and Financial Secretary ran for re-election unopposed and there were no candidates for Recording Secretary and for three Trustee positions. These positions were filled by appointment of members who could not have qualified as candidates under the meeting-attendance requirement.
4
Pending decision on the appeal, the Court of Appeals, on the Secretary's application, remanded the case to the District Court to permit the Secretary to make a post-judgment motion to have the 1965 election declared invalid. The District Court denied the motion. That denial was also appealed to the Court of Appeals, which affirmed on the ground that 'absent a complaint by a union member challenging the 1965 election, the Secretary had no authority to sue to establish the invalidity of that election.' 372 F.2d, at 88. Our decision makes unnecessary any consideration of the correctness of that holding.
5
The Court of Appeals adopted the holding of the Court of Appeals for the Second Circuit in Wirtz v. Local Unions 410, IUOE, 366 F.2d 438. The Court of Appeals for the Sixth Circuit in No. 58, Wirtz v. Local Union No. 125, Laborers' Int'l Union, supra, also followed the Second Circuit.
6
Archibald Cox, who actively participated in shaping much of the LMRDA, has remarked:
'The legislation contains more than its share of problems for judicial interpretation because much of the bill was written on the floor of the Senate or House of Representatives and because many sections contain calculated ambiguities or political compromises essential to secure a majority. Consequently, in resolving them the courts would be well advised to seek out the underlying rationale without placing great emphasis upon close construction of the words.' Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959, 58 Mich.L.Rev. 819, 852 (1960).
7
There are references to the desirability of expeditious determinations of the Secretary's suits, but it is clear from the contexts in which they appear that the concern was to settle as quickly as practicable the cloud on the incumbents' titles to office and not to avoid possible intervention of another election. See S.Rep. No. 187, 86th Cong., 1st Sess., 21, I Leg.Hist. 417, U.S.Code Congressional and Administrative News, p. 2318, 104 Cong.Rec. 7954, Leg.Hist. 699 (Dept.Labor 1964) (hereafter cited D.L.Leg.Hist.) (Senator Kennedy); 104 Cong.Rec. 11003, D.L.Leg.Hist. 710 (Senator Smith); cf. Cox, The Role of Law in Preserving Union Democracy, 72 Harv.L.Rev. 609, 631—634 (1959). The provision of § 402 (d), 29 U.S.C. § 482(d), that 'an order directing an election shall not be stayed pending appeal' is consistent with the concern that challenges to incumbents' titles to office be resolved as quickly as possible.
8
The background and legislative history of the 1959 Act are discussed in Aaron, The Labor-Management Reporting and Disclosure Act of 1959, 73 Harv.L.Rev. 851 (1960); Cox, Internal Affairs of Labor Unions, supra, n. 6; Levitan & Loewenberg, The Politics and Provisions of the Landrum-Griffin Act, in Regulating Union Government 28 (Estey, Taft & Wagner eds. 1964); Rezler, Union Elections: The Background of Title IV of LMRDA, in Symposium on LMRDA 475 (Slovenko ed.1961). And see Cox, Preserving Union Democracy, supra, n. 7, at 628—634.
Although Senator Kennedy, a principal sponsor of the legislation, counseled against mixing up the interests of providing for internal union democracy and of enacting measures concerned with relations between labor and management, see 105 Cong.Rec. 883—885, II Leg.Hist. 968—969; cf. S.Rep.No. 187, supra, n. 7, at 5—7, I Leg.Hist. 401—403, neither the debates nor the Act itself reveals unwavering adherence to this principle. See, e.g., Cox, Internal Affairs of Labor Unions, supra, n. 6, at 831—833.
9
'It needs no argument to demonstrate the importance of free and democratic union elections. Under the National Labor Relations and Railway Labor Acts the union which is the bargaining representative has power in conjunction with the employer, to fix a man's wages, hours, and conditions of employment. The individual employee may not lawfully negotiate with his employer. He is bound by the union contract. In practice, the union also has a significant role in enforcing the grievance procedure where a man's contract rights are enforced. The Government which gives unions this power has an obligation to insure that the officials who wield it are responsive to the desires of the men and women whom they represent. The best assurance which can be given is a legal guaranty of free and periodic elections. The responsiveness of union officers to the will of the members depends upon the frequency of elections, and an honest count of the ballots. Guaranties of fairness will preserve the confidence of the public and the members in the integrity of the union elections.' S.Rep. No. 187, supra, p. 7, at 20; and H.R.Rep. No. 741, 86th Cong., 1st Sess., 15—16, I Leg.Hist. 416, 773—774. See S.Rep. No. 187, supra, at 2—5, H.R.Rep. No. 741, supra, at 1—7, I Leg.Hist. 398—401, 759 765.
10
See S.Rep. No. 187, supra, n. 7, at 7, I Leg.Hist. 403:
'In acting on this bill (S. 1555) the committee followed three principles: 1. The committee recognized the desirability of minimum interference by Government in the internal affairs of any private organization. * * * (I)n establishing and enforcing statutory standards great care should be taken not to undermine union self-government or weaken unions in their role as collective-bargaining agents. 2. Given the maintenance of minimum democratic safeguards and detailed essential information about the union, the individual members are fully competent to regulate union affairs. * * * 3. Remedies for the abuses should be direct. * * * (T)he legislation should provide an administrative or judicial remedy appropriate for each specific problem.'
See also ibid.: 'The bill reported by the committee, while it carries out all the major recommendations of the (McClellan) committee, does so within a general philosophy of legislative restraint.'
The election title of the Senate bill referred to in the Committee Report was enacted virtually as drafted by the Senate.
11
See, e.g., S.Rep. No. 187, supra, n. 7, at 34, I Leg.Hist. 430:
'The committee bill places heavy reliance upon reporting and disclosure to union members, the Government and the public to effect correction of abuses where they have occurred. However, the bill also endows the Secretary of Labor with broad power to insure effectuation of its objectives. * * *
* * * He has power to—* * * (e) investigate violations of the election provisions and bring court actions to overturn improperly held elections and supervise conduct of new elections * * *.
'The committee believes that the broad powers granted to the Secretary by this bill combined with full reporting and disclosure to union members and the public provides a most effective combination of devices by which abuses can be remedied.' (Emphasis supplied.)
12
S. 748, 86th Cong., 1st Sess., I Leg.Hist. 84, 118—134; H.R. 8342, 86th Cong., 1st Sess., I Leg.Hist. 687, 727—729. See H.R.Conf.Rep. No. 1147, 86th Cong., 1st Sess., 35, I Leg.Hist. 939.
13
See, supra, at 469-470.
14
There is much discussion in the briefs of possible alternatives to our conclusion, such as expediting proceedings under § 402 to bring about their final decision before the next regular election, or injunctive relief against the conduct of that election pending final decision in the Secretary's suit. That discussion, however, assumes a construction of the statute contrary to that which we have reached and therefore requires no comment.
| 67
|
389 U.S. 486
88 S.Ct. 602
19 L.Ed.2d 723
Nos. 433, 778, 779, 830, 831, 832, 833, 834, 835, 836, 668 Misc., and 664 Misc. PENN-CENTRAL MERGER AND N & W INCLUSION CASES.* Argued Dec. 4, 1967. Decided Jan. 15, 1968. ----------* No. 778, Baltimore & Ohio Railroad Co. et al.
v.United States et al.; No. 779, Norfolk & Western Railway Co. v. United States et al.; No. 830, Oscar Gruss & Son v. United States et al.;
No. 831, New York, New Haven & Hartford Railroad Co. First
Mortgage 4% Bondholders Committee et al. v. United States et al.; No. 832, Erie-Lackawanna Railroad Co. et al. v. United States et al.; No. 833, Boston & Maine Corp. v. United States et al.; No. 834, Reading Co. v. United States et al.; No. 835, City of Scranton et al. v. United States et al.; and No. 836, John Hancock Mutual Life Insurance Co. et al. v. United States et al., on appeal from the United States District Court for the Southern District of New York, argued December 4, 1967. No. 433, City of Pottsville v. United States et al., on appeal from the United States District Court for the Middle District of Pennsylvania; No. 663, Misc., Borough of Moosic v. United States District Court for the Middle District of Pennsylvania et al.; and No. 664, Misc., City of Scranton et al. v. United States District Court for the Middle District of Pennsylvania et al., on motions for leave to file petitions for writs of mandamus and/or certiorari to the United State District Court for the Middle District of Pennsylvania.
[Syllabus from pages 486-490 intentionally omitted]
Howard J. Trienens, Chicago, Ill., Myron S. Isaacs, New York City, Edward A. McDermott, Washington, D.C., Ernest R. von Starck, Philadelphia, Pa., Gordon P. MacDougall, Washington, D.C., Malcolm Fooshee and Lester C. Migdal, New York City, for appellants.
Solicitor General, Erwin N. Griswold, Thomas D. Barr, Harry G. Silleck, Jr., New York City, Joseph Auerback and Hugh B. Cox, Washington, D.C., for appellees.
[Argument of Counsel intentionally omitted from pages 490-491]
Mr. Justice FORTAS delivered the opinion of the Court.
1
These cases again bring before us problems arising from the program to merge the Pennsylvania and New York Central railroads and related problems proceeding from an Interstate Commerce Commission order that certain railroads be included in the Norfolk & Western (N & W) system. The merger and the inclusion orders are part of a vast reorganization of rail transportation implementing the congressional policy of encouraging consolidation of the Nation's railroads into a 'limited number of systems.' Section 407 of the Transportation Act of 1920, amending § 5(4) of the Interstate Commerce Act, 41 Stat. 481 (1920). That policy has been with us, in one form or another, for more than 45 years. The original idea of the 1920 Act, that the ICC would formulate a national plan of consolidation, proved unworkable. It ran into heavy opposition from carriers and eventually had to be abandoned. The 1920 Act was replaced by the Transportation Act of 1940, 54 Stat. 898. Section 5(2)(b) of the Interstate Commerce Act, as amended by the 1940 Act, 54 Stat. 906, 49 U.S.C. § 5(2)(b), which governed the Commission's examination of the present transactions. Under the 1940 Act, the initiation of merger and consolidation proceedings is left to the carriers themselves, and the Commission possesses no power to compel carriers to merge. However, the congressional directive for a limited number of railroad systems has not been changed. The only change has been in the means of achieving that goal. See generally St. Joe Paper Co. V. Atlantic Coast Line R. Co., 347 U.S. 298, 315 321, 74 S.Ct. 574, 584—587, 98 L.Ed. 710 (Appendix) (1954).
2
The Pennsylvania and the New York Central dominate rail transportation in the Northeast. Their freight operations extend over some 20,000 miles of road in 14 States and Canada. They are the two largest passenger carrying railroads in the United States. In 1965 their combined operating revenue surpassed $1,500,000,000 and their combined net income was more than $75,000,000. As independent lines, Pennsylvania and New York Central are, to some extent, in direct competition for rail traffic. There are 32 urban areas in which the two lines are in competition with each other and in which no other rail facilities are available. The two roads operate at 160 common points or junctions and have a substantial amount of parallel trackage and routes. The proposed merger which the ICC has approved contemplates the unification of these vast roads and, as time goes on, the rationalization and elimination of some of the dual facilities and services in various areas and in various respects. The merger will result in 'enormous savings in transit time.' It is estimated that in eight years, the savings in expense will amount to more than $80,000,000 annually. See Baltimore & Ohio R. Co. v. United States, 386 U.S. 372, 379—381, 87 S.Ct. 1100, 1103—1105, 18 L.Ed.2d 159 (1967).
3
At the same time the combination of these two roads will directly and adversely affect various smaller railroads in the service area because of the more effective competitive service that the combined system will offer and because of the tendency of the combined roads, unless restrained by law, to favor their own system rather than to share traffic by interchange with nonsystem roads.
4
In brief, the antecedents of the issues before us are as follows: the Penn-Central merger has been under consideration by the parties and the Commission for about 10 years. It was preceded by the vast N & W-Nickel Plate merger, which the Commission approved in 1964. That transaction, which, it is anticipated, will eventually produce savings for the N & W system of over $29,000,000 annually, resulted in a large rail network covering some 7,000 miles of track and extending in the north from Des Moines and Kansas City to Buffalo and Pittsburgh, and in the southern tier from Cincinnati to Norfolk. See Norfolk & Western Railway Co. and New York, Chicago & St. Louis Railroad Co.—Merger, etc., 324 I.C.C. 1 (1964). The transaction was not presented to this Court for review.
5
In 1962 the parties to the Penn-Central transaction signed an agreement of merger including 36 rail carriers. The merger agreement did not include the New York, New Haven & Hartford Railroad (NH), although that road requested inclusion.
6
Following the merger agreement, the parties submitted the proposal to the Commission for approval under § 5(2) of the Interstate Commerce Act. Exhaustive hearings were held in which States, municipalities, railroads, shippers, and public bodies some 200 parties, in all—took part. The Commission's own staff participated extensively as did the Department of Justice acting for affected interests of the United States other than the regulatory functions of the Commission. All participants, with relatively minor exceptions to which we shall later advert, agreed that the merger itself would be in the public interest. There were sharp differences, however, with respect to certain issues. These primarily concerned the provisions to be made for three smaller lines affected by the proposed merger: the Erie-Lackawanna (E—L), Delaware & Hudson (D & H), and Boston & Maine (B & M) railroads. The Commission approved immediate consummation of the merger, subject to a reservation of jurisdiction to establish protective provisions for the three roads. Pennsylvania Railroad Co.—Merger—New York Central Railroad Co., 327 I.C.C. 475 (1966). Its order was approved by a three-judge court in the Southern District of New York. Erie-Lackawanna R. Co. v. United States, 259 F.Supp. 964 (1966).
7
At the last Term of Court, we reversed. We noted that the Commission itself had found that the survival of the E—L, D & H, and B & M was essential to the public interest and that these roads would be so seriously affected by the competition of the merged company that they might not be able to survive unless adequate protective arrangements were made. In these circumstances we concluded that the Commission should have determined the means to preserve the 'protected roads,' on both an interim and a permanent basis, before permitting consummation of the merger. We expressly stated that we were not passing upon the validity of the merger or the 'peripheral points posed by the various parties.' Baltimore & Ohio R. Co. v. United States, supra, 386 U.S. at 378, 87 S.Ct. at 1103.
8
The Court noted that in 1965 each of the three 'protected roads' had filed applications for inclusion in the N & W system, and that these were pending before the Commission in the N & W-Nickel Plate merger case pursuant to the Commission's continuing jurisdiction over those proceedings. We further noted that the Commission, pursuant to its power under § 5 of the Act to require as a condition of approval of a merger that other railroads be included in the merger, had obligated the merged N & W system to include the E—L, D & H, and B & M if the Commission should so direct, upon such equitable terms as the Commission might prescribe. We stated that if the three protected roads were ordered to be included in the N & W system, '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.' 386 U.S., at 390, 87 S.Ct., at 1109.
9
In accordance with our remand of the Penn-Central merger case, the Commission conducted further proceedings in the N & W case on the pending petitions of the three roads. On June 9, 1967, it issued its decision to the effect that 'inclusion of the petitioners in the N & W system is preferable to their inclusion in the Penn-Central,' and ordered N & W to acquire the stock of the three roads on prescribed terms. Norfolk & Western Railway Co. and New York, Chicago & St. Louis Railroad Co.—Merger, etc., 330 I.C.C. 780, 796 (1967). At the same time, in the remanded Penn-Central merger proceedings, the Commission reconsidered certain protective conditions it had previously devised to aid the three roads, imposed amended protective conditions to operate in the interim between consummation of the Penn-Central merger and the protected lines' inclusion in a major railroad system,1 and again authorized the immediate consummation of the Penn-Central merger. Pennsylvania Railroad Company—Merger—New York Central Railroad Company, 330 I.C.C. 328 (1967).
10
On July 3, 1967, on application of parties opposing the Commission's merger order, the three-judge District Court for the Southern District of New York enjoined implementation of that order pending the decision of that court on review. Actions were also filed by several parties in the same court to set aside the order of the Commission requiring the N & W to include the three protected roads in its system. Suits challenging both the merger and inclusion orders were instituted in other courts, but were stayed so as to permit orderly disposition of the basic issues in the Southern District of New York.2 After expedited proceedings in that court, all complaints attacking the merger and the inclusion orders were dismissed3 and the decisions of the Interstate Commerce Commission in both the merger and the inclusion proceedings were sustained. Erie-Lackawanna R. Co. v. United States, 279 F.Supp. 316. Various of the parties then sought relief in this Court. Because of the importance and urgency of the matter, we granted a further stay of the merger order, consolidated all proceedings that were before us relating to the merger and inclusion decisions, and expedited consideration thereof. See 389 U.S. 946, 88 S.Ct. 311, 19 L.Ed.2d 356.
11
We have before us nine appeals, on behalf of 17 parties, from the decision of the District Court. Also docketed are two related petitions for mandamus or certiorari to the District Court for the Middle District of Pennsylvania, and one appeal from that court.
12
The particular contentions urged upon us, in this multiplicity of proceedings, are many and varied. In general, however, the issues may be articulated as follows: Has the mandate of this Court been fulfilled, in that appropriate provision has now been made for the three smaller roads? Are the terms of the order providing for inclusion of the protected roads in the N & W system fair and equitable and in the public interest? Did the District Court err in refusing to enjoin consummation of the Penn-Central merger? Has adequate provision been made for resolution of the 'peripheral' issues presented by the parties, which would not be foreclosed by a decision authorizing the consummation of the merger and inclusion of the protected roads in the N & W?
13
I. THE MERGER DECISION.
14
A. IN GENERAL.
15
Most of the parties before us are in accord that the merger is in the public interest and should be consummated as promptly as possible. Those urging immediate consummation before this Court include the Department of Justice and the Commission, the States of Pennsylvania, Connecticut, Rhode Island, New York, Massachusetts, and New Jersey; the Railway Labor Executives' Association; the trustees of the NH; the Pennsylvania and New York Central railroads; B & M; and, in substance, the E—L, D & H, and N & W and its allies. While this consensus has reduced the attacks upon the merits of the merger to a minimum, considering the vast size and implications of the transaction, we must nevertheless address ourselves to the basic merits of the merger as well as to the specific objections that are before us.
16
With respect to the merits of the merger, however, our task is limited. We do not inquire whether the merger satisfies our own conception of the public interest. Determination of the factors relevant to the public interest is entrusted by the law primarily to the Commission, subject to the standards of the governing statute. The judicial task is to determine whether the Commission has proceeded in accordance with law and whether its findings and conclusions accord with the statutory standards and are supported by substantial evidence. See, e.g., Illinois Central R. Co. v. Norfolk & W.R. Co., 385 U.S. 57, 69, 87 S.Ct. 255, 262, 17 L.Ed.2d 162 (1966).
17
Section 5 of the Interstate Commerce Act, as amended by the Transportation Act of 1940, 54 Stat. 905, 49 U.S.C. § 5, sets forth the national transportation policy that is to guide the Commission in its scrutiny of mergers proposed by railroads. The Commission is to approve such proposals, pursuant to the terms of § 5(2)(b) of that Act, when they are made upon just and reasonable terms and are 'consistent with the public interest.' In reaching its decision, the Commission is to give weight to a number of factors, such as: '(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).
18
We find no basis for reversing the decision of the District Court that the Commission's approval of the merger is in compliance with law and the statutory standards, and is based on adequate findings supported by substantial evidence. We shall first discuss considerations which are basic to the statutory standards, and we shall then turn to certain particular objections which have been made.
19
It is, of course, true that the policy of Congress, set forth in the Transportation Act, to consolidate the railroads of this Nation into a 'limited number of systems' is a variation from our traditional national policy, reflected in the antitrust laws, of insisting upon the primacy of competition as the touchstone of economic regulation. Competition is merely one consideration here. See Seaboard Air Line R. Co. v. United States, 382 U.S. 154, 86 S.Ct. 277, 15 L.Ed.2d 223 (1965). This departure from the general and familiar standard of industrial regulation emphasizes the need for insistence that, before a rail merger is approved, there must be convincing evidence that it will serve the national interest and that terms are prescribed so that the congressional objective of a rail system serving the public more effectively and efficiently will be carried out. Obviously, not every merger or consolidation that may be agreed upon by private interests can pass the statutory tests.
20
Examination of the record and of the findings in the present case, however, satisfies us that the Commission has properly and lawfully discharged its duties with respect to the merits of the merger. In these elaborate and lengthy proceedings the Commission has considered evidence tendered by others and compiled by its own staff. Upon the aggressive suit of parties representing conflicting interests, it has analyzed every pertinent aspect of the merger and the inclusion order. It has weighed conflicting viewpoints on all of the fundamental issues and many that are tangential. As the Commission concluded, the evidence before it, with negligible exceptions, attested to the probability of significant benefit from the merger, not only to the railroads and their investors, but also to shippers and the general public.
21
The Commission carefully considered the implications of the fact that the Pennsylvania and the New York Central, as individual systems, have operated at a profit, and that there are reasonably good prospects for a continuation of such operation. But it was impressed by the fact that, as individual systems, these profits are not sufficient to put the roads in a position to make improvements important to the national interest, including the maintenance of services which, although essential to the public, are not self-supporting, and furnishing assistance to other roads serving public needs in their general territory. The Commission emphasized that the merger would enable the unified company to 'accelerate investments in transportation property and continually modernize plant and equipment * * * and provide more and better service.' 327 I.C.C. 475, 501—502. And it pointed out that only by permitting the merger would it be possible for the Commission to compel Penn-Central to come to the rescue of the New Haven, as we shall describe.
22
With respect to the lessening of competition where it now exists between the roads to be merged, the Commission pointed out that it will retain containuing power over reductions of service and facilities which are not specifically approved in the merger plans. Such consolidations and abandonments will have to be presented to the Commission for its approval and may be subjected to public criticism and hearings and to conditions or disapproval. It also noted that the rail wervice by the merged company will remain subject to vigorous competition from other roads, including the N & W and the C & O—B & O systems, and from motor, water, and air carriers. The Commission summarized some of the factors which would act as a restraint upon the merged company as follows:
23
'The power of shippers to direct the routing, the availability of numerous routes in a dense network of interline routes, the influence of connecting carriers in preventing a deterioration in service on the joint routes in which they participate, the growing strength of the N & W and C & O—B & O systems, all stand to provide a check against any abuse of economic power by the merged applicants.' 327 I.C.C., at 514.
24
Considering the record, and the findings and analysis of the Commission, we see no basis for reversal of the District Court's decision that the Commission's 'public interest' conclusions are adequately supported and are in accordance with law. We find no basis, consonant with the principles governing judicial review, for setting aside the Commission's determination, approved by the District Court, that the 'public interest' directives of the governing statute have been reasonably satisfied: that the transaction is likely to have a beneficial and not an adverse effect upon transportation service to the public; and that, as we shall discuss, appropriate provisions have been made with respect to other railroads that are directly affected by the merger.
25
B. OBJECTIONS OF CERTAIN PENNSYLVANIA INTERESTS
26
The only objectors in this Court to the public interest findings with respect to the merger are certain interests in the State of Pennsylvania. Appeal No. 835 was taken by the City of Scranton and Milton J. Shapp, a stockholder in the Pennsylvania Railroad Company. These parties filed complaints in the Southern District of New York challenging the Commission's original merger decision. After this Court's remand last Term, they were ordered by the District Court to file supplemental complaints. They declined to comply because, having intervened as plaintiffs in a proceeding challenging the merger in the Middle District of Pennsylvania, they chose to rely upon their asserted right to challenge the Commission's merger and inclusion decisions in the Pennsylvania action. After several warnings, their complaints in the New York court were dismissed, with prejudice.
27
The action in the Middle District of Pennsylvania, in which Shapp and Scranton intervened, was filed by the Borough of Moosic on June 26, 1967, to set aside the Commission's orders, entered after our remand, approving the Penn-Central merger and the inclusion of the three protected roads in the N & W system. The Pennsylvania court stayed the Moosic proceeding by order of July 11, 1967, on the request of the United States and the Commission, for the sound purpose of preventing a multiplicity of litigation regarding the Commission's merger and inclusion decisions. Cf. Kansas City Southern R. Co. v. United States, 282 U.S. 760, 51 S.Ct. 304, 75 L.Ed. 684 (1931). Petitions for mandamus or certiorari, on behalf of Moosic (No. 663, Misc.) and Scranton and Shapp (No. 664, Misc.), seeking to challenge the stay of proceedings entered by the Pennsylvania court, have been filed in this Court. Since it now appears that the Middle District of Pennsylvania has dissolved its stay and commenced hearings, it would be pointless for us to review the stay order. Accordingly, the petitions for mandamus or certiorari are dismissed as moot.
28
Scranton, Shapp, and Moosic attack the Commission's merger and inclusion decisions along a broad front and claim error in the Commission's basic findings that the Penn-Central merger and inclusion of the protected lines in N & W are in the public interest. The thrust of this argument is that the Commission failed to consider or properly to evaluate the adverse effect of the Penn-Central merger, considered in light of the order requiring inclusion of the three protected roads in the N & W system, upon certain affected communities in the State of Pennsylvania. We do not agree. In its April 6, 1966, opinion approving the Penn-Central merger, the Commission examined the arguments made by participating communities in great detail and stated that the 'contentions regarding the adverse effect of the merger on Pennsylvania's economy are not substantiated by the evidence. On this record, the prospects clearly import that the merger will benefit rather than harm the Commonwealth.' 327 I.C.C. 475, 492. At the time it made this finding, the Commission was committed to the proposition enunciated in the April 6, 1966, opinion, that the three protected roads would be included in one of the larger systems because of their inability to survive as independent lines. This Court in its decision last Term emphasized the importance of such inclusion. The Commission's conclusion that the net result of the merger would be beneficial to the State of Pennsylvania is bolstered by the strong position taken by the State in this Court that the decision of the District Court for the Southern District of New York should be affirmed.
29
As we discuss, infra, apart from the general and theoretical argument that the Penn-Central merger and the inclusion of the three roads in the N & W system may harm some Pennsylvania interests, complainants' fears of specific injury resulting from reduction of competition by specific curtailments of service now provided by the three protected lines may be asserted in appropriate proceedings when such curtailment is specifically proposed.
30
All other complaints of these parties relate broadly and generally to the fundamental and underlying economic problems that are involved in the merger and inclusion decisions: for example, the anticompetitive consequences of these decisions and the financial situation and prospects of the Pennsylvania and New York Central as independent lines. They were all the subject of extensive evidence and were analyzed at length by the Commission. In dismissing the complaints of Scranton and Shapp for failure to go forward, Judge Friendly noted that '(w)hile we entertain no doubt of the sufficiency of this (procedural) ground, we think it well to add that * * * we find no merit in the complaints of Shapp and The City of Scranton.' The court remarked that, for the most part, 'the attacks (of Scranton and Shapp) simply represent disagreement with procedural and policy determinations which Congress has committed to the Commission.' 279 F.Supp., at 326, n. 6. We find no reason to reverse the judgment of the District Court for the Southern District of New York for dismissing the complaints of Scranton and Shapp for failure to prosecute, or to set aside its conclusions as to the lack of merit of their claims, particularly in light of the limited function of judicial review of decisions such as those now before us and the opportunity open to them to challenge proposals which may be made for specific curtailment of service.
31
Scranton and Shapp, like the Borough of Moosic, wish now to go forward with their complaints in the Middle District of Pennsylvania, in which they seek an injunction against consummation of the Penn-Central merger and the effectiveness of the inclusion order. But Shapp and Scranton were parties to the New York proceedings and the Borough of Moosic had an adequate opportunity to join in the litigation in that court following the stay of proceedings in the Middle District of Pennsylvania. As we noted, supra, n. 2, all district courts in which actions to review the Commission's findings or for injunctive relief were filed continued their proceedings in deference to the New York court. All parties with standing to challenge the Commission's action might have joined in the New York proceedings.4 In these circumstances, it necessarily follows that the decision of the New York court which, with certain exceptions, we have affirmed, precludes further judicial review or adjudication of the issues upon which it passes. While it is therefore no longer open to the parties to challenge the Commission's approval of the Penn-Central merger and inclusion of the three protected lines in N & W, or its order that immediate consummationof the merger should be permitted, any claims for specific relief, such as particularized objections which may arise from specific proposals for consolidation or reduction of facilities or services, are unaffected by the decision in the present cases. Claims not precluded by the present decision may be pursued before the Commission or in the courts or both, as may be appropriate. This applies to Shapp, to the City of Scranton, and to the Borough of Moosic as well as to any other affected interests. The proceedings in the Middle District of Pennsylvania are not before us, except as we have dismissed as moot the petitions challenging that court's stay of its proceedings, and it will be the task of that court to determine the effect of the present decision upon the proceedings before it. Scranton, Shapp, and Moosic may, of course, seek such relief, if any, in that court as may be available and appropriate in light of our decision herein.
32
Finally, we must mention the City of Pottsville, which has appealed to this Court (No. 433). Pottsville's request to intervene in the Moosic action, upon a complaint similar to that of Moosic, was denied by the Middle District of Pennsylvania. Like Moosic, Pottsville had the opportunity—which it failed to seize—to litigate in the Southern District of New York. It appears that a principal basis for denial of Pottsville's request to intervene was the objection interposed by the United States and that this objection will, after our decision in the instant cases, be withdrawn. Upon this representation by the United States, without reference to or any attempt to consider the scope or content of the action in which intervention is sought, or the issues, if any, which may remain for adjudication in that proceeding, we vacate the decision of the District Court for the Middle District of Pennsylvania denying intervenion and remand Pottsville's case to that court for further consideration in light of our decision today.
33
C. OBJECTIONS OF THE NEW HAVEN'S BONDHOLDERS.
34
Two appeals, Nos. 830 and 831, have been taken on behalf of bondholders of the New York, New Haven and Hartford Railroad Company (NH). Since 1961 the NH has been in reorganization proceedings under § 77 of the Bankruptcy Act, 11 U.S.C. § 205. Despite the shelter of the bankruptcy court, it has been on the verge of financial collapse with the attendant risk to continuance of its rail service. The Commission has found that passenger as well as freight service by the NH is a national necessity and that termination of either would lead to distress in Connecticut, Massachusetts, and Rhode Island, and would severely damage New York City and the Nation generally. See New York, New Haven & Hartford Railroad Co., Trustees, Discontinuance of All Interstate Passenger Trains, 327 I.C.C. 151 (1966).
35
The NH competes in a relatively small part of its service area with the New York Central; but in the NH's financial condition, diversion of even a small amount of the Pennsylvania's connecting traffic from the NH to the Central would inflict consequential injury. Even without reference to the hazard of such diversion, inclusion of the NH in the Penn-Central combination is the only possibility that has been advanced by any of the parties including the complaining bondholders—for continued operation of NH, short of the sheer speculation that the States concerned or the Federal Government might take over the road and its operations.
36
In June 1962, with permission of the bankruptcy court, the New Haven's trustees requested the ICC to make provision under § 5(2)(d) of the Act for its inclusion in the proposed Penn-Central merger. When the Commission first considered the merger, it stated that 'we will require all the New Haven railroad (both passenger and freight operations) to be included in the applicants' transaction'; and in its initial report it provided that 'our approval of the merger is conditioned upon such inclusion.' 327 I.C.C., at 524, 527. It required that the parties to the merger irrevocably stipulate that they would consent to inclusion upon such terms as might be agreed between the NH and the merger parties or, failing this agreement, upon such terms as the Commission might prescribe with the approval of the bankruptcy court. 327 I.C.C., at 553.
37
The trustees of the NH and the two companies conducted lengthy negotiations and finally arrived at an agreement as to inclusion terms dated April 21, 1966, amended October 4, 1966. In July 1967 the NH bankruptcy court warned that New Haven's cash depletion was 'so serious that, if the present rate of loss continues, there will be insufficient left by late September to meet the payroll.' Subsequent improvement of cash position permitted amendment of this dire prediction so that it was expected that operation could be financed to January 1968.
38
The Commission on August 3, 1967, directed the negotiation of a lease between the New Haven trustees and Penn and Central, to be 'immediately available upon consummation of the Penn-Central merger.' The parties, however, reported that preparation of a lease in time to meet the New Haven's needs was not possible. Thereupon, the Commission ordered a hearing as to whether a lease, loan, or other arrangement should be made to assure the NH's continued operation until its acquisition by Penn-Central. On November 21, 1967, the Commission issued an order, subject to the approval of the bankruptcy court providing (a) terms for the inclusion of the New Haven in the Penn-Central system upon effectuation of the Penn-Central merger; (b) for the Penn-Central to lend $25,000,000 to the New Haven over a three-year period in return for trustees' certificates; and (c) for the Penn-Central to bear 100% of the operating losses of the New Haven during the first year after the merger, 50% in the second, and 25% in the third, subject to a ceiling of $5,500,000 in each year on the total amount that Penn-Central could be required to absorb and subject to termination upon transfer of the New Haven assets. Acceptance of these terms by Penn and Central is a required condition of approval of their merger. The Commission has retained jurisdiction 'for the purpose of making such further order or orders in these proceedings as may be necessary or appropriate.'
39
The merits of these provisions are not before us. They have not been reviewed by the bankruptcy court or by a statutory district court under the applicable statute. The New Haven trustees and the States of Connecticut, Massachusetts, Rhode Island, and New York, as well as the United States, have filed briefs urging this Court to affirm approval of the Penn-Central merger, citing the urgent need for this in order to salvage the New Haven's operations. The attack, so far as the New Haven is involved, has been launched by Oscar Gruss & Son, a holder of approximately 14% of the NH's first and refunding mortgage bonds and by the Protective Committee for that issue, which intervened in Gruss' action below. (Nos. 830 and 831.) The claim is that because continued operation of the New Haven at a loss involves progressive erosion of the bondholders' security and because the interim arrangement does not assure that Penn-Central will absorb all of the operating losses, we should not permit the Penn-Central merger to be consummated without simultaneous inclusion of the NH. In view of the probable difficulties in reaching agreement for inclusion of the NH which will satisfy its bondholders, it is virtually certain that this would mean lengthy delay during which the NH would not have access to the interim Penn-Central financial aid, and might be faced with collapse of its operations.
40
The Commission, after hearing the bondholders' contention, pointed out that '(i)t is a fundamental aspect of our free enterprise economy that private persons assume the risks attached to their investments, and the NH creditors can expect no less because the NH's properties are devoted to a public use. Indeed, the assistance the creditors are receiving from the States and would receive from Penn-Central through the sharing of operating losses would raise some of that burden from their shoulders.' Pennsylvania Railroad Company—Merger—New York Central Railroad Company, 331 I.C.C. 643, 704 (1967). The District Court, putting aside questions of the standing of the NH bondholders to attack the Penn-Central merger, affirmed the Commission's rejection of the attack.
41
Continuation of the operations of the NH, which the Commission has found to be essential, can be assured only upon and after effectuation of the merger of the Penn-Central. The bondholders agree that to delay the Penn-Central merger until all proceedings necessary to include the NH have taken place may well mean the end of NH operations. The only realistic way to avoid this is to permit prompt consummation of the Penn-Central merger subject to appropriate conditions respecting the New Haven which Penn-Central will perforce accept by its act of merger. While the rights of the bondholders are entitled to respect, they do not command Procrustean measures. They certainly do not dictate that rail operations vital to the Nation be jettisoned despite the availability of a feasible alternative. The public interest is not merely a pawn to be sacrificed for the strategic purposes or protection of a class of security holders whose interests may or may not be served by the destructive move.
42
While we reject the appeals of the NH bondholders, acceptance or rejection of the terms and conditions on behalf of the NH remains to be determined. The bondholders' objections may be registered and adjudicated in the bankruptcy court or upon judicial review as provided by law. Furthermore, as noted above, the Commission has retained jurisdiction to make further appropriate orders, if necessary, and has provided both that inclusion of the NH in Penn-Central and the making of the loan arrangement on such terms as are prescribed by the Commission, are conditions of approval of the merger.
43
We affirm the District Court's dismissal of the appeals in No. 830 and No. 831. D. OBJECTIONS BASED ON THE PROVISIONS MADE FOR THE PROTECTED ROADS.
44
The N & W and roads associated with its position (the Chesapeake & Ohio (C. & O), Baltimore & Ohio (B & O), and Western Maryland) have filed an appeal (No. 778). In brief and upon argument they stated that they do not object to the Penn-Central merger itself. Their stated position is that they oppose 'immediate consummation'—that is prior to the actual inclusion of E—L, D & H and B & M in the N & W. They also assail the specific operation and effect of the protective conditions and urge modifications thereof, and attack the basic legality of the conditions as a revenue pool.
45
The assailed protective provisions appear as Appendix G to the Commission's order in the merger case. They are essentially of two types: traffic conditions that require the merged Penn-Central not to change routes, rates, or service in such a way as to divert traffic from the protected lines; and revenue indemnity conditions establishing a formula whereby Penn-Central is to compensate the protected lines in the event of adverse revenue results following the merger.5 At the time the case was before us last Term, the Commission had withdrawn the revenue indemnity conditions pending further consideration. After our remand, the Commission further considered all the conditions, amended them in some respects not here material and restored the revenue indemnity conditions. None of the protected roads has lodged objections against these provisions, nor has Penn-Central, and we affirm the District Court's conclusion that they appear to provide adequate interim protection for the three roads in conformity with the purposes insisted upon by the Commission and which this Court sought to ensure by its decision last Term.6
46
The objectors, however, attack the protective provisions on three grounds: First, they claim that the revenue indemnity provisions create a pooling agreement proscribed by § 5(1) of the Interstate Commerce Act, 49 U.S.C. § 5(1). Second, they say that the conditions give each of the protected lines an incentive to divert traffic to Penn-Central and vice versa. Such traffic diversion, they argue, would be at the expense of the objecting, 'unprotected' lines. Third, they also assert that the shield which these provisions give the protected lines dilutes their incentive to join the N & W, permits them or some of them unfairly to 'shop around' for better terms of inclusion, and may delay or about their inclusion in the N & W.
47
We first address ourselves to the argument assailing the indemnity provisions as an illegal pool. As the District Court pointed out, the legislative history of § 5(1) leads to the conclusion that the section was not intended to apply to cases such as this one, in which the putative revenue pool is not the creation of private parties but is imposed by the Commission itself as a condition to consummation of a merger. Additionally, even if we consider the section applicable in these circumstances, there is no merit to the contention that the protective conditions must be struck down. Section 5(1) proscribes 'any contract, agreement, or combination (among) * * * carriers for the pooling or division of traffic, or of service, or of gross or net earnings, or of any portion thereof,' unless the Commission finds that such pooling or division 'will be in the interest of better service to the public or of economy in operation, and will not unduly restrain competition.' The Commission has held that, even if the conditions it established were a pooling arrangement, 'this record clearly supports findings * * * that to protect these carriers clearly is 'in the interest of better service to the public" and "will not unduly restrain competition." 330 I.C.C. 328, 345, n. 8. We agree with the District Court that this finding is supported by substantial evidence in the record. The interim protection of the protected lines is, in the Commission's view and under the decision of this Court last Term, essential. These conditions have been adopted for that purpose and we see no reason on the present record to conclude that they are unlawful. In the event that actual experience reveals that the provisions operate inequitably, recourse may be had to the Commission for relief pursuant to its reserved jurisdiction, subject to judicial review.
48
With respect to the contention that, regardless of whether the indemnity provisions constitute a revenue pool, those provisions will induce the protected carriers and Penn-Central improperly to divert traffic to one another and thereby to injure the unprotected roads, the District Court correctly concluded that there is no basis for rejecting the Commission's findings that neither the protected roads nor Penn-Central 'would have either the motive or the ability to engage in such diversion on any substantial scale.' 279 F.Supp., at 328. This conclusion was reached largely because of the ability of the N & W to retaliate and the limitations imposed by economic conditions and geographic facts. The Commission included in its findings 'a provision that would prohibit the protected carriers from engaging in manipulation, with sanctions if they do,' 330 I.C.C., at 355, and it specifically reserved jurisdiction to reopen proceedings and modify the protective conditions 'in the light of experience.' The Commission has also included a general reservation of jurisdiction, under which it could revise the protective conditions.7 If, in light of experience, improper traffic diversions should develop or, as noted above, if these conditions should otherwise prove to be inequitable, recourse may be had to the Commission under these reservations, subject to judicial review as appropriate.8
49
N & W expresses the fear that the traffic and revenue indemnity provisions will be so attractive that the three lines or some of them will prefer to continue under their umbrella, and will not promptly accept the Commission's ticket of admission to the N & W system. The Commission's reserved power appears to be adequate to deter such conduct if and when it becomes abusive. Further, one of the protected lines, the largest of the three (E L), already has accepted, by stockholder vote, its inclusion in N & W. The board of directors of another (D & H) has recommended to stockholders that inclusion be accepted.9 In view of these circumstances, the fears expressed by N & W and the other protestants as to the dangers which perpetuation of these provisions will pose must be regarded as speculative. Clearly, if one or more of the protected roads should decline to accept the terms for inclusion specified by the Commission's order, the Commission could be called upon to examine, pursuant to its reserved power, the appropriate action to be taken to terminate or modify the interim protective provisions or otherwise to ensure that the shield supplied to the roads is not converted into a sword. The fears expressed by the protestors fall far short of furnishing a reason for rejecting the District Court's approval of the Commission's order that the Penn-Central merger be immediately consummated. Nor is there merit to N & W's contention that it was error for the Commission to fail to rule, now and forever, that the protected roads may not be included in Penn-Central. Whether or not such permission appears likely, there is no occasion for such contingent foreclosure.
50
Finally, we reject the contention that this Court's prior opinion in this matter now precludes us from permitting consummation of the merger until actual inclusion of the three roads in a larger system. With respect to the inclusion problem, our criticism of the original Commission order ran to the ICC's failure to decide the question over which it had undoubted jurisdiction and which the Commission itself had found to be important to the public interest: the determination, so far as the Commission was empowered, of the ultimate home of the three roads. As this Court said: 'we can only conclude that it is necessary that the (Commission's) 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.' 386 U.S., at 390, 87 S.Ct., at 1109. Our decision was not intended to require an indeterminate delay in the consummation of the merger, pending the resolution of the jockeying, negotiating, and fighting among all of the parties concerned and completion of the multitudinous procedures necessarily involved. This would place the public interest as well as the vast majority of the affected private interests at the mercy of decisions not merely of certain corporations whose interests are, in fact, secondary or derivative, but of classes of security holders. It was our intention that the public interest should be served with fairness to all private parties concerned, not that it should be the captive of parties some of whom are understandably engaged in maneuvering solely for the purpose of improving their competitive, strategic, or negotiating positions.
51
There is no provision of law by which the Commission or the courts may compel the three protected roads to accept inclusion in the N & W, as ordered by the Commission, or in any other system: Section 5(2)(d) of the Act provides:
52
'The Commission shall have authority in the case of a proposed transaction under this paragraph involving a railroad or railroads, 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.'
53
It does not make provision for compelling an unwilling railroad which is not itself a party to a merger agreement to accept inclusion under the terms the Commission prescribes. Our opinion on the first appeals commanded the Commission to specify the opportunity provided for the smaller roads to be included in a major system, before approving consummation of the Penn-Central merger. It was not intended to give the protected corporations or the creditors or stockholders of each of them, or the N & W relying on their position, a veto over the public interest which the Commission has found to inhere in this merger.
54
We need not pause to discuss in detail N & W's contention that the Commission's findings do not support a conclusion that N & W must proceed with inclusion of fewer than all three of the protected roads, if, for example, B & M does not accept the terms. The original decision in the N & W-Nickel Plate merger proceedings clearly contemplates action by the Commission upon a 'petition or petitions' of one or more of the three roads. 324 I.C.C. 1, 148. Separate petitions were in fact filed by each of these roads. As the District Court concluded, in light of the favorable action already taken by E—L stockholders and the D & H Board of Directors, the possibility of noninclusion of B & M would not be cause for setting aside the Commission's order.10
E. THE POSITION OF READING CO.
55
No 834 is an appeal on behalf of the Reading railroad. Reading does not ask that the consummation of the merger be stayed. Its complaint is directed to the District Court's affirmance of the Commission's refusal to permit Reading to reopen the record and submit evidence in support of its claim that it should receive protective conditions similar to those the three 'protected roads' were given in Appendix G to the merger order.
56
Reading is controlled by the C & O—B & O system through stock ownership. It has been suggested under the so-called Dereco plan, that the proposed N & W—C & O merger should include the Reading, as well as certain other small roads. Reading did not and does not ask for inclusion in Penn-Central, or for inclusion at this time in N & W along with E—L, D & H, and B & M. It did not offer evidence in the Penn-Central proceedings as to possible traffic diversion, until its tender made after the record had been closed. It now claims, however, that since much of its trackage is paralleled by lines of the Pennsylvania, it will be injured by the merger and should have the benefit of the Appendix G provisions.
57
Reading requests that we remand its case to the Commission for a decision as to whether protective conditions should be established for it. The Commission found, in its original report, that Reading would not be harmed by the merger and that protective conditions were therefore unnecessary. This finding was based in part on a letter submitted by Reading itself to the Commonwealth of Pennsylvania and introduced, without objection from Reading, in evidence before the Commission. Only after the Commission issued its report did Reading object to the finding of no adverse impact upon it as a result of the merger, and then Reading's fear appears to have been chiefly that a finding of no adverse impact might prejudice its eventual attempt to join in the N & W—C & O merger. The Commission held Reading to its 'original concession that the effect of the merger transaction (without the indemnity conditions) upon them would be inconsequential.' 330 I.C.C. 328, 357. In response to Reading's specific concern, the Commission modified its finding of no adverse impact to a finding that no adverse impact had been shown. The District Court upheld this decision and, in addition, concluded that Reading's claim of substantial adverse impact as a result of the Penn-Central merger was unpersuasive on the merits.
58
Ordinarily, we would, without more, concur with the District Court's view. Because of the vastness and complexity of this matter, however, and in oder to ensure that whatever substance there may be to Reading's claim is not sacrificed, we sustain the Commission's denial of Reading's submission on condition that it is without prejudice to any proceeding which Reading may hereafter institute, based on actual experience, for relief from undue prejudice caused by the merger.
59
II. INCLUSION DECISION.
60
Three appeals, No. 779, No. 833, and No. 836, relate to the Commission's order, entered in the N & W-Nickel Plate merger proceedings, prescribing that N & W accept inclusion of the E—L, D & H, and B & M in the N & W system and specifying the terms thereof. Norfolk & Western Railway Co. and New York, Chicago & St. Louis Railroad Co. Merger, etc., 324 I.C.C. 1 (1964), supplemented, 330 I.C.C. 780, reconsidered, 331 I.C.C. 22 (1967). In 1964 the Commission approved the N & W-Nickel Plate merger subject, among other conditions, to the Commission's retention of jurisdiction for five years to permit the filing of petitions by E—L, D & H, and B & M for inclusion in the N & W system. The Commission's approval was also subject to the condition that N & W give its irrevocable consent to inclusion of the three roads on terms that the ICC would itself prescribe in the absence of agreement among the affected parties. 324 I.C.C 1, 148. The three lines in due course filed petitions for inclusion. Hearings were held, and, on June 9, 1967, following our remand in the Penn-Central merger case, the Commission made findings and entered its order requiring N & W to include the three roads in its system under terms it prescribed.
61
Appellants are the N & W, the B & M, and a number of E—L bondholders. As we shall discuss, only the N & W appeal raises issues which go broadly to the merits of the Commission's order implementing N & W's duty to accept inclusion of the three roads. B & M seeks remand on the grounds that the terms fixed by the Commission for N & W's offer to acquire the stock of the B & M are inadequate to reflect B & M's value as part of the N & W system. The third appeal, brought by E—L bondholders, turns on the question whether the Commission should have specifically retained jurisdiction to protect the E—L bondholders in the event that N & W attempts after inclusion improperly to divert E—L traffic to itself. We affirm the District Court's action in disallowing the claims of all of these appellants. Reference is made to preceding sections of this opinion for discussion of the bearing of claims respecting the inclusion order upon the Penn-Central proceeding.
62
We first address ourselves to the demands of E—L bondholders for assurance that the reservation of jurisdiction by the Commission would enable them to obtain consideration of unwarranted traffic diversion by N & W, if that should develop. Since N & W will be acquiring stock control of E—L and E—L's bondholders will look to E—L's fortunes for payment and security, the bondholders fear that N & W may not be entirely solicitous of E—L's welfare. Appellants themselves note that the Commission, in adopting the report and order of the officer presiding over the original hearing, has reserved jurisdiction 'to receive such petitions, institute such investigations, and make such orders to accomplish the objectives and purposes of the plan for inclusion and other terms and conditions prescribed herein * * *.' The Commission has also retained jurisdiction 'for the purpose of making such further order or orders in these proceedings as may be necessary or appropriate, in addition to those orders under jurisdiction expressly retained in the prior reports and orders of the Commission and to those orders which may be issued under section 5(9) of the Interstate Commerce Act.'11 Supplemental Order issued June 9, 1967. We have no doubt that if, after inclusion of E—L, N & W should engage in a course of conduct which invades the rights of E—L bondholders, the bondholders may apply to the Commission for relief and the Commission's reservation of jurisdiction will enable it to rule upon this complaint and to grant relief, if warranted, subject to judicial review.
63
The other two appeals require somewhat more extended comment. We first note that our opinion at the last Term found adequate support for the Commission's conclusion that the public interest requires inclusion of the three roads in a larger system. As we have previously noted, see supra, at 503-505, the Commission's findings and order with respect to the 'public interest considerations' involved in the inclusion of these lines in the N & W system are in conformity with the statute and are supported by substantial evidence.
64
The attack of N & W and B & M upon the Commission's order centers, not upon the fundamental issues, but upon the particular terms of that order. In brief, the Commission has provided that N & W will purchase stock control of E—L and B & M through wholly owned subsidiaries. It has fixed the basis for such purchase in relation to the experienced income of the lines, their earnings having been adjusted for various factors including savings and gains which the Commission found would result from inclusion in the N & W system. The Commission has satisfied itself that traffic losses to the merged Penn-Central would be offset by benefits to N & W not otherwise taken into account. The shareholders of these roads are to receive stock of a newly created subsidiary of N & W, which will eventually be convertible into N & W common stock. In the case of D & H, the means of valuation was the same as for the other protected lines, but N & W is to pay for D & H assets either in cash or with a note and N & W stock.
65
This is the first time in the Commission's history that it has undertaken to 'replace the bargaining session.' It did so here pursuant to the N & W stipulation, which was accepted by N & W as a condition to the N & W-Nickel Plate merger, and in response to the exigencies of the situation emphasized by this Court's decision at our last Term.
66
As we have noted above, the E—L stockholders have voted approval of the inclusion terms. The D & H Board of Directors has recommended approval to its stockholders. N & W complains that the price set for inclusion of the three lines is too high and that some other aspects of inclusion are arbitrary. B & M, on the other hand, complains that the price set for its inclusion is too low. The District Court affirmed the Commission's findings and conclusions, and in the exercise of our reviewing function we find no basis for reversing that court's decision.
67
The method for determining the value and exchange ratio which the Commission adopted, and which we have briefly described, is not attacked. It is a method that is reasonably conventional and generally accepted, always subject to the modifications and adaptations required by individual cases, and we see no basis for holding it erroneous as a matter of law. The attack that is launched is upon factors of particularized judgment and the weight to be ascribed to various values. These are matters as to which reasonable men may reasonably differ in detail, and we see no basis for setting aside the Commission's conclusions as sustained by the District Court. In setting inclusion terms, the Commission was dealing with complicated and elusive predictions about probable traffic patterns following the Penn-Central merger and the inclusion decision. We are no more competent than the Commission and the District Court to ascertain the accuracy of those predictions. We deem it our function, in the complexities of cases such as these, to review the judgment of the District Court with respect to agency actions to make certain that those actions are based upon substantial evidence and to guard against the possibility of gross error or unfairness. If we find those conclusions to be equitable and rational, it is not for us to second-guess each step in the Commission's process of deliberation.
68
N & W's attack upon the inclusion order centers upon its disagreement with the Commission's findings as to prospective earnings of the three roads as part of the N & W system. It argues that the Commission had no basis for concluding that the earnings of E—L, D & H, and B & M, as subsidiaries of N & W, would be adequate to assure their 'viability.'12 It asserts that the Commission has made various invalid adjustments of actual earnings and failed to make others. This, N & W says, is 'the principal area of dispute in these proceedings.'
69
On the other hand, the B & M contends that the Commission's findings substantially underestimate the savings which should be credited to it as an earnings adjustment, and that, therefore, the terms for its inclusion are unjust. Specifically, it urges that the Commission underestimated the probable amount of savings resulting from N & W control and the coordination of operations and equipment repair facilities and reduction of administrative expenses. The Commission, however, accepted and relied on figures submitted by B & M's own witness. B & M now assails these figures, but obviously the Commission was entitled to rely upon them.
70
The District Court examined in some detail the contentions of the parties attacking the financial terms of the inclusion order. We have reviewed the findings of the Commission in light of the evidence of record and the District Court's analysis, and we find no basis for reversing the District Court's judgment. The terms fixed by the Commission are clearly within the area of fairness and equity. Although B & M argues forcefully that the Commission underestimated the savings that should redound to its credit, we cannot say in the circumstances that the order should be reversed and remanded in this respect. It must be noted, as we have discussed in connection with appeals relating to the Penn-Central merger decision, that the inclusion order has no compulsive or coercive effect upon the roads to be included. Unless and until modified by the Commission, it remains available to the protected lines upon the terms which it specifies and which the District Court found to be fair and equitable.13
71
Only one other point of the N & W attack upon the inclusion order requires comment. N & W objects to the conditions prescribed by the Commission to protect the interests of the employees affected by the order. We note that those conditions, protecting employees of the protected lines, are the same as the conditions set by the Commission for N & W's employees at the time of the N & W-Nickel Plate merger. As the District Court held, '(t)he Commission acted within its powers in requiring N & W to protect employees of the three roads as thoroughly as those of the roads it was permitted to absorb only on the condition that it would accept these lines if the Commission so directed.' 279 F.Supp., at 337.14
III. CONCLUSION.
72
The judgment of the District Court for the Southern District of New York is affirmed, subject to the modifications and conditions stated in this opinion. Nos. 778, 779, 830—836 are remanded to that court for the entry of such orders and for such further action as may be consistent with our opinion and judgment herein and as may be appropriate with respect to the exercise of that court's jurisdiction in the premises.
73
The applications of Scranton, Shapp, and Moosic for mandamus or certiorari (Nos. 663, Misc. and 664, Misc.) are denied without prejudice to further proceedings in the District Court for the Middle District of Pennsylvania, consistent with this opinion.
74
In No. 433, jurisdiction is noted, the judgment of the Middle District of Pennsylvania with respect to Pottsville is vacated, and the cause is remanded to that court for further proceedings in light of our decision today.
75
Mr. Justice MARSHALL took no part in the consideration or decision of these cases.
76
Mr. Justice DOUGLAS, dissenting in part in Nos. 433, 663, Misc., and 664, Misc.
77
In my opinion, these cases present important questions concerning the 'public interest' which I feel the Commission should be required to answer before judicial review can be feasible.
78
The Pennsylvania District Court proceedings were initiated by the Borough of Moosic (petitioner in No. 663, Misc.), located in Lackawanna County, Pennsylvania. The Borough brought its action on June 26, 1967, to annul and set aside the orders of the Commission authorizing the Penn-Central merger and requiring the inclusion of E—L, D & H, and B & M in the N & W system.1 Those orders by the Commission had been issued on June 9, 1967, following our remand last Term on March 27, 1967. Baltimore & Ohio R. Co. v. United States, 386 U.S. 372, 87 S.Ct. 1100, 18 L.Ed.2d 159. Moosic, whose complaint is dated June 26, 1967, was joined by intervenors City of Scranton and Milton J. Shapp (petitioners in No. 664, Misc.)2 and the City of Pottsville (appellant in No. 433).3 On July 11, the court granted the applications of Shapp and the City of Scranton to intervene, but denied that of the City of Pottsville.
79
Before the Pennsylvania action was initiated, the District Court for the Southern District of New York, in which the original action to set aside the Commission's order allowing consummation of the Penn-Central merger had been filed (i.e., the action reviewed by this Court last Term), was asked to enjoin consummation of the merger authorized by the Commission's June 9 order until the validity of the inclusion order had been finally determined. On July 3 the New York court temporarily enjoined the merger, and ordered all plaintiffs and intervening plaintiffs in the original action to file supplemental complaints by July 17, attacking the June 9, 1967, order of the Commission in the Penn-Central Merger Case, or their complaints would be dismissed with prejudice.
80
Also before the Pennsylvania action was filed, N & W (on June 13) filed an action in a federal district court in Virginia to set aside the inclusion order; and on June 23, D & H filed a similar action in the Southern District of New York. Other interested parties had apparently indicated that they were contemplating filing additional actions in still other district courts, and the Government and the Commission urged all parties to present their challenges to the original District Court in New York. In a hearing before that court on June 28, two days after the filing of Moosic's complaint in Pennsylvania, it was stated that no objections to venue would be interposed by the Government against any party choosing to litigate in the New York forum. Thereafter, the United States and the Commission moved in the Virginia and Pennsylvania courts to stay proceedings pending the final determination of the New York actions. The Virginia court continued its proceedings until after the decision of the New York court should become available to it. The Pennsylvania court issued a stay until October 1, 1967.
81
Upon failing twice to have the stay order dissolved by the Pennsylvania court, the Borough of Moosic and Shapp and the City of Scranton petitioned this Court to vacate the stay order and command the District Court to proceed with their complaints. The Court today dismisses those two petitions.4
82
The three communities involved—the Borough of Moosic and the cities of Scranton and Pottsville, make a broadside attack on many aspects of the merger in their actions in the Pennsylvania court. Among those many issues tendered is at least one that has never been considered by any court, namely, whether the inclusion of E L, D & H, and B & M into N & W would have such a serious detrimental impact on their communities—in terms of services, employment, and business—as to make their inclusion against the 'public interest' within the meaning of the Interstate Commerce Act. The communities also contend that they have not been afforded an adequate opportunity to present their arguments to the Commission.
83
This Court quotes the conclusion of the Commission that the 'contentions regarding the adverse effect of the merger on Pennsylvania's economy are not substantiated by the evidence. On this record, the prospects clearly import that the merger will benefit rather than harm the Commonwealth.' This statement, however, is taken from an earlier (April 6, 1966) opinion by the Commission in the merger case. Pennsylvania Railroad Co. Merger—New York Central Railroad Co., Finance Docket No. 21989, 327 I.C.C. 475, 492. In other words, the Commission was there directing its attention to the effects which the merger of the Penn and Central railroads itself would have on various Pennsylvania communities. It was not concerned with the community impact of the inclusion of E—L, D & H, and B & M into the N & W system. That issue was not then even before the Commission, but was presented only at a later date in the separately docketed N & W Inclusion case, in which the Commission issued its order on June 9, 1967. Norfolk & Western Railway Co. and New York, Chicago & St. Louis Railroad Co.—Merger, etc., Finance Docket No. 21510, 330 I.C.C. 780.
84
The Court seems to suggest that because the Commission in its April 6, 1966, order also contemplated that E—L, D & H, and B & M would eventually be included in some major system, it must have been taking into account the impact of such inclusion on the communities served by those roads when it made the statement quoted above. But this assumption flies in the face of the Commission's case-by-case approach. It ignores the fact that the evidence before the Commission in Finance Docket No. 21989 (the Penn-Central Merger Case) relating to the community impact of the Penn-Central merger was not addressed to the impact which the eventual inclusion of E—L, D & H, and B & M into N & W would have on communities served by those roads. See Recommended Report, Finance Docket No. 21989, at 229—286; 327 I.C.C. 475, 489—493. And if the Court were correct in divining the Commission's hidden intent, I would have no doubt that the Commission did not provide adequate opportunity to the communities which would be affected by the inclusion of the three roads in any major system to participate in the proceedings. Infra, at 535—536.
85
Congress has, of course, committed all questions of policy under § 5 to the Commission; but on judicial review, we must be able to say that the Commission has made the necessary findings in determining policy—in this instance, that the inclusion will be in the 'public interest.' I do not find in the opinion of the District Court, or in the Court's opinion, a searching inquiry into the Commission's conclusions regarding the community impact of its orders in the Inclusion Case to ascertain whether they are adequately supported by 'basic or essential findings.' State of Florida v. United States, 282 U.S. 194, 215, 51 S.Ct. 119, 125, 76 L.Ed. 291; United States v. Carolina Freight Carriers Corp., 315 U.S. 475, 489, 62 S.Ct. 722, 729, 86 L.Ed. 971. A few words about the community impact of this case—the Inclusion Case—will point up what I mean.
86
In the Recommended Report of Commissioner Webb, served on December 22, 1966, in the Inclusion Case, scant attention was paid to the issues tendered by the community interests. Commissioner Webb noted that many representatives of various shipper and community interests testified concerning the vital need for the services of the three roads. He then disposed of the assertions of Milton J. Shapp and certain Pennsylvania interests in one sentence:
87
'Contrary to the assertions of Shapp and other Pennsylvania interests, intramodal competition would not be significantly lessened.'
An accompanying footnote reads:
88
'Shapp's contentions that competition would be substantially curtailed and that rail facilities in the eastern and western portions of Pennsylvania would be contracted are predicated on the merger of both E—L and D & H into N & W. However, the merger of E—L into N & W is not authorized herein (only control was authorized). Moosic submitted testimony through its Mayor and Northampton through the Chairman of its Board of Commissioners, in which opinions were expressed that inclusion of E—L and D & H in the N & W system would be injurious to shippers and receivers and the economies of their areas. No evidence was offered to support these opinions and they are not sustained by any other evidence in the record.'
89
This cursory treatment of the allegations of Shapp and other Pennsylvania interests is not an analysis of the merits of their assertions sufficient for judicial review. This is hardly a considered treatment of the effects which inclusion would have on communities presently served by more than one of the roads to be included in the N & W system.5
90
The parties in the Pennsylvania court argue that the Hearing Examiner and Commission failed to relate the various pieces of evidence which were available concerning the community impact of any reduction in services or facilities likely to result from the inclusion order in the communities involved. In particular, the parties note that Moosic would be a prime candidate for the pruning of facilities since it has a substantial amount of E—L and D & H track, and that Scranton would be reduced to a two-railroad town with E—L and D & H also having duplicating facilities in the area. It was noted that even though the Commission stated that its inclusion order did not authorize the abandonment of facilities, the evidence introduced by E—L in support of inclusion demonstrated clearly that the avowed purpose underlying the entire transaction was substantially to reduce facilities in the Wilkes Barre-Scranton-Binghamton area, and thereby effect economies. It was further alleged that according to E—L's own plan presented to the Commission, inclusion of E—L and D & H into N & W would lead to the tearing up of the main line double track between Binghamton and Scranton, and would thus take Scranton off the main line between Chicago and New York.
91
The communities also contend that their opportunity to participate meaningfully in the Inclusion proceedings was seriously limited: the Commission and its Hearing Examiner denied all requests by Moosic to hold hearings in the Scranton area so that its citizens, businessmen, and civic leaders could be heard concerning the railroad proposals. And the City of Scranton describes the difficulty of meaningful participation by community interests in the following manner:
92
'The April 6, 1966 report of the Commission in the PRR—NYC Merger Case stated that its decision is related to the 'inclusion' proceeding, F.D. 21510, whereby E—L, D & H and B & M seek to be absorbed by N & W. The Commission stated that it took official notice of F.D. 21510 and that it had a bearing on its decision. (327 I.C.C. 475, 487—489.) Yet the fact was that the Commission, on April 6, 1966, did not and could not have considered the evidence of the nonrailroad parties to F.D. 21510, because such evidence from the nonrailroad parties was not circulated until April 13, 1966, and was not received in evidence prior to June 16, 1966. The Commission could not in its April 6, 1966 report have considered the public interest aspects of the inclusion case, but could only have based its PRR—NYC decision in this regard strictly upon consideration of railroad evidence, railroad positions, and railroad arguments.' It is not at all clear to me that the Commission offered a meaningful opportunity in the Inclusion Case to local and regional interests to present their arguments. That is a matter for the Pennsylvania court to determine in this Inclusion Case.
93
As respects the question of 'public interest' in the N & W Inclusion Case, the Commission concluded:
94
'On the positive side, inclusion of the petitioners in N & W will strengthen railroad competition, enhance the adequacy of the transportation service provided by N & W as well as the three petitioners by opening new routes and instituting new service, produce the economies and efficiencies inherent in single-line operation, and permit the joint use where possible, of facilities, equipment and routes. * * * 'Our order herein does not authorize the abandonment of lines, operations or facilities by N & W or the petitioners. Applications for such abandonments are to be filed in appropriate proceedings. We expect N & W to maintain proper divisions with the petitioners.' 330 I.C.C. 780, 827.
95
Despite the Commission's disclaimer that the inclusion order 'does not authorize the abandonment of lines, operations or facilities,' it appears that some abandonment will almost certainly result given the geographical location of the lines of the four roads involved and the companies' desire for efficiency. In addition, the Commission itself, in the first paragraph quoted above, indicates that it contemplates 'economies and efficiencies inherent in single-line operation,' and 'the joint use where possible, of facilities, equipment and routes'—all of which portend significant effects on the local communities stretched along the routes of the roads. Deferral of the question of community interests until a subsequent hearing on abandonments will not ensure adequate protection of those interests; for at the subsequent hearing the Penn-Central merger would be a fact, and the pressures would be great for increased economies on the part of the N & W system to make it a more efficient competitor of Penn-Central.
96
Communities which depend heavily on the railroad industry for employment, such as the City of Scranton, would be affected significantly by any loss of jobs. In its opinion in the N & W Inclusion Case, the Commission noted that in the earlier phase of this proceeding, N & W had entered into agreements with certain labor unions which provided that elimination of jobs resulting from the N & W-Nickel Plate unification would be accomplished only through normal attrition (i.e., 'principally by death, retirement, discharge for cause, or resignation.' 330 I.C.C. 780, 822, n. 26); the agreements were apparently modified at a later date to prohibit transfer of employees to other jobs beyond their general locality. For those employees not covered by the agreements, the Commission imposed certain protective conditions prescribed in Southern Ry. Co.—Control—Central of Georgia Ry. Co., 317 I.C.C. 557, as supplemented and clarified in 317 I.C.C. 729 and 320 I.C.C. 377. The Commission concluded that the employees of E—L, D & H, and B & M should be protected in the same manner as their counterparts involved in the N & W-Nickel Plate proceedings. For all employees not covered by attrition agreements, the protection would consist of the following: either N & W's existing agreements had to be modified to cover employees of the included roads or similar new agreements were to be drafted; and, if no agreement was concluded within 60 days, the Commission would impose appropriate conditions. The Commission denied the requests of D & H and B & M to extend this employee protection to their supervisory, professional, and executive personnel.
97
Whether the use of attrition agreements to eliminate jobs has a substantial adverse impact simply because jobs are eliminated is a question not free of doubt.
98
The Commission outlined the importance of the service of the three protected roads to the public, but limited this to a showing that, as a geographical matter, the lines of all three roads supplied needed services. 330 I.C.C. 780, 793—794. As far as appears from its decision, the Commission did not consider the unfavorable impact on the communities now served by more than one of the protected roads when the three roads are put into a single system.
99
Under a hearing in its opinion entitled 'Advantages to petitioners and to the public,' the Commission noted that under N & W control, the three protected roads could achieve substantial savings; and it observed further that:
100
'The petitioners as well as the public will benefit from the unified management of what is now several separate companies operating independently. Among others, such benefits will include joint routes of affiliated lines, the prospect of single-line service, elimination of interchanges, improved schedules, and a more flexible distribution of equipment. Such benefits will increase the petitioners' ability to preserve and improve their present services and meet the needs of the shipping public. Through expanded piggyback operations, petitioners will be in a better position to meet the competition of motor carriers. Because many industries prefer to locate plants where a single-line through-route service will be available, more opportunities for industrial development will be created. As part of the large N & W system, the use of more modern equipment and facilities will be justified, resulting in greater efficiency, improved operations and better service to the public.' 330 I.C.C. 780, 795.
101
These general conclusions are not addressed to the objections made by the communities affected. Moreover, the Commission's references to 'joint routes,' 'elimination of interchanges,' and a 'more flexible distribution of equipment,' suggests that community fears of eventual abandonment or scaling down of facilities are well founded.
102
The issues tendered by the parties in the Pennsylvania court, touching on the questions just described, are substantial and are not now before this Court for review. They have not been briefed or argued; and I fail to understand how the Court can presume to decide them.
103
The Court suggests that the community interests involved can obtain adequate protection from possible curtailment of service by asserting their challenges 'in appropriate proceedings when such curtailment is specifically proposed.' Yet it seems clear that postponing review of this question until a subsequent proceeding on proposed abandonments will not protect the communities adequately. The inclusion of the three protected roads into the N & W system surely portends significant curtailment and rerouting of the facilities of one or more of the four roads involved. Once the Penn-Central merger is consummated, N & W and its three included roads will face competitive injury unless their operations are streamlined and economized. The interests of the communities stretched along the routes of E—L, D & H, B &M, and N & W might well weigh less against the threat of Penn-Central competition once the merger has been consummated than those interests would if they were considered and evaluated before actual competition from a merged Penn-Central system is felt.
104
I do not suggest that we can now decide whether the impact on community interests justifies disapproval by the Commission of the inclusion of the three protected roads into N & W. The question of the adequacy of the Commission's findings on this point has not been presented either to this Court or to the New York District Court; and as pointed out previously, I have grave doubts that the Commission's opinion in the Inclusion Case contains adequate findings on the issue to permit responsible judicial review.
105
The cases presently pending in Pennsylvania present, inter alia, the question whether the Commission failed to evaluate the adverse impact of the inclusion of the E—L, D & H, and B & M into the N & W system upon the communities served by the carriers involved.
106
In the action before the New York District Court, here for review in Nos. 778 and 779, that court dismissed the complaints of Shapp and the City of Scranton, with prejudice, for failing to file supplemental complaints attacking the Commission's June 9, 1967, order in the Penn-Central Merger Case. But the complaints of Shapp and Scranton that were dismissed with prejudice dealt only with the merits of the Commission's approval of the Penn-Central merger in its April 1966 decision in Finance Docket No. 21989. They did not attack the Commission's later (June 9, 1967) order in the separately docketed Inclusion proceedings. Thus, there is no question of res judicata present with regard to those parts of Shapp's and Scranton's complaints in the Pennsylvania court which attack the Commission's June 9 order in the Inclusion Case. And, of course, no question of res judicata arises with respect to the complaints of Moosic and Pottsville. Even if the Penn-Central Merger and N & W Inclusion Cases are regarded as inseparable, it is clear that the community impact aspect of the Inclusion Case was not considered by the New York court. It is evident from the record and that court's opinion that the primary concern of the court related to various aspects of the merger and inclusion orders tendered by the railroad parties which were unrelated to at least some of the attacks leveled by the parties in the Middle District of Pennsylvania, including the question of community impact.6
107
The Court seemingly declares, however, a new rule of res judicata in its effort to prevent the parties in Pennsylvania from proceeding with their actions challenging the basic validity of the Commission's inclusion order on the ground, inter alia, that the Commission has not made adequate findings on the issue of the community impact of that order. Because the Borough of Moosic, which had properly filed a suit in the Middle District of Pennsylvania but saw its action stayed, refused to accept the invitation of the New York District Court (a court in which Moosic was never a party, and which neither assumed jurisdiction over Moosic nor attempted to do so by making it an involuntary plaintiff) to come to New York and litigate, the Court holds that Moosic is bound by the decision of the New York court in the Inclusion Case. The New York court itself did not attempt to hold that its orders in the Inclusion Case would bind Moosic if it did not join in the New York proceedings. And I am at a loss to discover any such principle in the law of res judicata.
108
A party is entitled to its day in court;7 and I cannot fathom how a party can be deprived of that right or waive it by refusing an invitation—not even an order—to litigate in another court located in another State.8 The Court could reach its conclusion under the doctrine of res judicata only if Moosic could be termed in 'privity' with one of the parties litigating in the New York action. See, e.g., Lawlor v. National Screen Service Corp., 349 U.S. 322, 75 S.Ct. 865, 99 L.Ed. 1122; Bank of Kentucky v. Commonwealth of Kentucky, 207 U.S. 258, 28 S.Ct. 82, 52 L.Ed. 197; Mutual Benefit Life Ins. Co. v. Tisdale, 91 U.S. 238, 23 L.Ed. 314; In re Howard, 9 Wall. 175, 19 L.Ed. 634. But Scranton and Shapp were the only community interests in the New York court who challenged the Commission's basic finding that the Penn-Central merger was in the public interest; and, as pointed out, their allegations were not directed to the Commission's order in the N & W Inclusion Case. The Borough of Moosic is a separate community, with distinct interests based on the facilities and lines of the various roads located within the Borough, or serving the Borough. Under such conditions, Moosic cannot properly be called in privity with Scranton or Shapp.9
109
The Court states that 'further judicial review or adjudication of the issues upon which (the New York District Court) passes' is precluded by its decision. But, as I have already pointed out, the New York court did not pass on at least some of the contentions, including the question of the community impact of the inclusion order, which are raised by the parties in Pennsylvania; nor were those questions even presented to the New York Court for review.
110
Congress might, of course, channel all complaints against an administrative agency order to a particular court. It has indeed done so in many instances through provisions that a person aggrieved by a certain type of order should seek review in a designated court of appeals. 28 U.S.C. § 2341 et seq. (1964 ed., Supp. II). Where review of an agency order is lodged in a court of appeals and review of the same agency order is also sought in other such courts, the court of appeals where review was first sought is the one to which all other courts are directed to transfer all proceedings with respect to the agency order. 28 U.S.C. § 2112(a) (1964 ed., Supp. II). That has the obvious advantage of centralizing and consolidating judicial review and avoiding conflicts which might obtain if the parties could go to any court that had venue. Congress, however, has made no such provision respecting ICC orders. Section 2112, on which the Court relies, provides in subsection (d) that its provisions are not applicable to review of agency orders in the district courts. ICC orders are reviewable by three-judge district courts. 28 U.S.C. § 1336(a), § 2325. The general provision for transfer of actions from one district court to another is 28 U.S.C. § 1404(a). But 28 U.S.C. § 1398 provides, with exceptions not relevant here, that actions challenging ICC orders 'shall be brought only in the judicial district wherein is the residence or principal office of any of the parties bringing such action.' And where the jurisdiction of more than one three-judge district court has been invoked and a motion to transfer the proceedings from one to another has been made, the motion is denied if venue would not have been proper for an original action in the district court to which transfer is sought.10 When a three-judge district court in New York was asked to transfer proceedings challenging an ICC order to the district court in Maryland, where another like challenge was being made, it declined, saying, 'None of the plaintiffs in the actions in the Southern District of New York has its residence or principal office in the District of Maryland.' New York Central R. Co. v. United States, 200 F.Supp. 944, 947 (D.C.S.D.N.Y.1961). The New York District Court, speaking through Judge Friendly, refused to invoke the procedure provided for in 28 U.S.C. § 2112(a), since that section applies, as already noted, only to review of agency orders in the courts of appeal. Id., at 949—950. That court was much more faithful to the system of review, which Congress has provided, than we are today. Moosic and Scranton by no stretch of the imagination have their 'residence' in New York. By 28 U.S.C. § 1398 venue plainly lies in Pennsylvania; and Congress has provided no method of transferring those suits to New York.11
111
It is not only hard cases which make bad law. Cases surcharged with the pressure for instant and immediate decision to the same12 and create precedents which plague us.
112
It seems clear to me that we must permit the parties to litigate in the Pennsylvania court whether E—L, D & H and B & M should be included in the N & W system. By no stretch of the imagination can it be argued that the question of the adverse impact on the Pennsylvania communities of the inclusion of the three roads in the N & W system, as now posed by the parties in Pennsylvania, was here for review or was before the New York District Court. See Erie-Lackawanna R. Co. v. United States, 279 F.Supp. 316, at 325—326.
113
Last Term we held that the ultimate fate of the three protected roads must be determined before the Penn-Central merger could be consummated. This surely means that judicial review must first be had at least with respect to the contentions which bear on the basic validity of the inclusion order—that is, whether the order is in the 'public interest,' as required by 49 U.S.C. § 5(2) (d)—as distinguished from collateral questions about the order which need not delay the Penn-Central merger. The basic validity of the inclusion order certainly involves the impact of the inclusion on the communities served by the three lines in question. Whether other questions of like character have survived need not now be determined. It is certain that at least the community-impact issue has not been resolved. And its intimate connection with our holding last Term is evident. For what if it were found that by reason of the impact on the communities the inclusion order was not in the public interest? Our 'protected' roads would then have no home.
114
The stay order of the Pennsylvania court has expired, and that court is now proceeding with these cases. For purposes of review by this Court, the petitions in Nos. 663, Misc. and 664, Misc., seeking review of the stay order or mandamus to compel the Pennsylvania court to proceed with the cases, can be dismissed. But those petitions did not present to this Court any question concerning the merits of the parties' actions in Pennsylvania; rather they attacked the validity of the order staying their actions in deference to proceedings then being conducted in the New York District Court. And, as already pointed out, at least the question of the community impact of the inclusion order, which is raised in Pennsylvania, has not been presented either to this Court or the New York District Court for review. I therefore dissent from the Court's holding that all of the parties now litigating in Pennsylvania are precluded from challenging 'the Commission's basic findings that the * * * inclusion of the protected lines in N & W (is) in the public interest.' If the Pennsylvania court believes that the allegations of the plaintiffs are substantial, it should be free to enjoin the merger until questions concerning the basic validity of the inclusion order, at least so far as impact on the Pennsylvania communities is concerned, have been resolved.
115
Mr. Justice DOUGLAS, dissenting in part in Nos. 778, 779, 830 836.
116
These cases present at least one serious problem under 49 U.S.C. § 5(2). Section 5(2)(a) authorizes two or more carriers to consolidate provided that the Commission finds under subdivision (b) that the 'terms and conditions' are 'just and reasonable' and 'will be consistent with the public interest.' Moreover, under subdivision (d) of § 5(2), the Commission 'as a prerequisite to its approval' of the merger may require the inclusion of another railroad in the territory 'upon equitable terms.'
117
I do not think the Commission has made those necessary findings under § 5(2).
118
The majority opinion adopts a piecemeal approach to judicial review of the Commission's orders, which, as I view it, does not conform with our duty of judicial review in one respect.
119
In the majority opinion last Term, Mr. Justice Clark noted that '(o)ur experience with other mergers, and common sense as well, indicate that the 'scrambling' goes fast but the unscrambling is interminable and seldom effectively accomplished.' Baltimore & Ohio R. Co. v. United States, 386 U.S. 372, 392, 87 S.Ct. 1100, 1110, 18 L.Ed.2d 159. Because of this, we refused to allow the Penn-Central merger to be consummated before the fate of the three protected roads (the Erie-Lackawanna, Delaware & Hudson, and Boston & Maine) had been determined. Some aspects of the Commission's merger and inclusion orders—those which do not go to the heart of the Commission's decision (that is, its determination that the merger or inclusion is in the 'public interest')—can await later judicial review. Examples would be the contentions of Reading and the E—L bondholders. But I fail to see how we can affirm the Commission's decision that this entire transaction is in the 'public interest' without considering those points raised by the parties which do go to the heart of the controversy. I refer specifically to the contentions of the parties in the Middle District of Pennsylvania (see my partial dissent in Nos. 433, 663, Misc. and 664, Misc.), and to Nos. 830 and 831 which involve claims of the New Haven creditor interests, to which I now turn.
120
Certain bondholder interests of the New York, New Haven & Hartford Railroad Company (New Haven) attack the Commission's failure to provide for actual inclusion of the New Haven in the Penn-Central system as a condition simultaneous with, or precedent to, consummation of the merger. Following the filing of these appeals, the Commission, on November 16, 1967, issued a decision concerning the treatment of the New Haven in the merger plan, styling the opinion as a supplemental order in the Penn-Central Merger Case. Pennsylvania Railroad Co.—Merger—New York Central Railroad Co., Finance Docket No. 21989, 331 I.C.C. 643. On that date the Commission approved as a first step in the New Haven's reorganization a conveyance of its assets to Penn-Central; it fixed terms for interim financing on the basis of a $25,000,000 loan commitment from Penn-Central; and it provided for the sharing of New Haven's operating losses by Penn-Central, on a sliding scale, pending New Haven's inclusion in the merged system. The Commission also specifically provided that consummation of the merger would constitute irrevocable assent by Penn-Central to enter into the interim financing arrangement.
121
The sale agreement proposed by the New Haven trustees provided for New Haven's physical assets and investments to be purchased by Penn-Central free and clear of liens and other encumbrances. The lien of the New Haven creditors' interests would shift from New Haven's present assets to the assets held by the trustees as the proceeds of the sale. Provision for the preservation of priorities and rights of claimants was made in the plan. The trustees originally submitted, pursuant to § 77 of the Bankruptcy Act,1 a plan of reorganization to be accomplished in two steps. Initially, only the first step, providing for the sale of the New Haven to the merged Penn-Central system, was presented to the Commission for approval. After that part of the plan had been completed, the trustees intended to implement the second step, relating to distributing the assets of the New Haven estate or issuing new New Haven securities.
122
Certain bondholder interests contested the legality of the two-step plan. But in a decision rendered in May 1967 the Court of Appeals held that a decision on the legality of such a plan would be premature. In the Matter of the New York, New Haven & Hartford R. Co., 378 F.2d 635 (C.A.2d Cir. 1967). In September 1967 the New Haven trustees filed the second part of their plan, but requested the Commission to make immediate findings required under § 5(2)(d) of the Interstate Commerce Act with respect to the first part of the plan, rather than await completion of the reorganization proceedings. Creditor interests opposed this request by arguing that creditor claims, in the order of priority, would have to be considered by the Commission before it could arrive at 'equitable terms' within the meaning of § 5(2)(d). The Commission chose to adopt the procedure suggested by the trustees, and approved the plan for the sale of assets independently of a complete reorganization plan.
123
In short, the Commission concluded that an immediate decision on the question under § 5(2)(d) of 'equitable terms' for the sale of assets would satisfy 'a legal preliminary to NH inclusion without delay once the Penn-Central merger is consummated.'2 On the other hand, it said, delay of such a decision until completion of New Haven's reorganization would prevent a timely rescue of the New Haven as an operating common carrier. Thus the Commission opted in favor of 'improved service through a consummated Penn-Central merger including an operational NH, while the NH creditors are freed to litigate at will the distribution of their estate.'3
124
The bondholder interests before this Court contend that under either the majority or dissenting opinions in St. Joe Paper Co. v. Atlantic Coast Line R. Co., 347 U.S. 298, 74 S.Ct. 574, 98 L.Ed. 710, any sale of the New Haven to the merged Penn-Central system would require at least its submission to a vote of bondholders. See also Reconstruction Finance Corp. v. Denver & Rio Grande Western R. Co., 328 U.S. 495, 66 S.Ct. 1282, 90 L.Ed. 1400. The bondholders also argue that the Commission ignored the admonition of this Court in Palmer v. Commonwealth of Massachusetts, 308 U.S. 79, 88, 60 S.Ct. 34, 38, 84 L.Ed. 93, that the powers of the Commission and courts under § 77 of the Bankruptcy Act can properly be exercised only in the context of 'a complete plan of reorganization for an insolvent road.'
125
In justifying its action, the Commission noted that except for subsections (b) (1), (4), and (5), of § 77, there is no provision in § 77 that deals specifically with the form or content of a reorganization plan. Therefore, no language of § 77 was believed to prohibit evaluation of the New Haven properties and the approval of their sale before approval of a plan for restructuring the New Haven. The Commission noted the doctrine of 'wasting assets' employed under Chapter X of the Bankruptcy Act to permit two-step plans of reorganization, and analogized that doctrine to the instant case—since in the view of the Commission, the New Haven could properly be classified as a 'wasting asset.'4
126
With respect to interim financing of the New Haven, the Commission approved a loan proposal under which Penn-Central would make available to the New Haven a total of $25,000,000 over three years to enable the New Haven to continue its operations until its assets were conveyed to Penn-Central. The Commission noted that the loan authorization did not impair the jurisdiction of the reorganization court since that court would still have to approve issuance of trustees' certificates to evidence those advances.5
127
The loan provisions approved by the Commission provided further that any time the cash balance of the New Haven fell below $5,000,000, the trustees could borrow from the $25,000,000 commitment enough money to equal a $5,000,000 cash balance plus $2,500,000. The Commission set an interval of at least three months between loan takedowns, and provided that any reduction in the aid which New Haven was receiving from the New England States would reduce correspondingly the amount that could be borrowed from Penn-Central. The interest rate on the loans was declared to be the prime rate of the Morgan Guaranty Trust Company of New York City prevailing at the time the loan is taken down. December 13, 1971, was designated as the maturity date for the trustees' certificates. Finally, the loan provisions would be terminated upon the occurrence of any of the following events: (1) acquisition of the New Haven by Penn-Central; (2) a final and effective order by a regulatory authority or court granting permission to liquidate the New Haven or to dispose of it to someone other than Penn-Central; (3) cessation of the New Haven operation as a going railroad; (4) a determination that Penn-Central shall not acquire the New Haven; (5) the expiration of three years from the date of the Penn-Central merger.
128
Although the New Haven creditors argued before the Commission that their interests would be reduced by the issuance of the trustees' certificates, which would acquire precedence over their claims against the New Haven estate, the Commission reasoned that:
129
'We consider such a result part of the process of distributing the burdens of the NH's operations. It is a fundamental aspect of our free enterprise economy that private persons assume the risks attached to their investments, and the NH creditors can expect no less because the NH's properties are devoted to a public use. Indeed, the assistance the creditors are receiving from the States and would receive from Penn-Central through the sharing of operating losses would raise some of that burden from their shoulders.'6
130
The Commission did not place all of New Haven's operating losses on Penn-Central during the period of the loan agreement. The amount to be absorbed by Penn-Central is governed by a specific formula approved by the Commission.7 With respect to deciding how much of the loss was to be assumed by Penn-Central under the formula, the Commission noted two main factors: (1) the admonition of the reorganization court that safeguards against endless litigation by New Haven creditors should be established; and (2) in the interim period before conveyance of New Haven's assets to Penn-Central, the opportunities to integrate New Haven's operations into the Penn-Central system would be restricted, so that many operating economies and efficiencies could not be realized until complete inclusion of the New Haven. The Commission felt that the existence of these factors tended to limit the portion of New Haven losses which Penn-Central should have to absorb under the formula. The final amount decided upon was 100% of the loss during the first year, 50% during the second, and 25% during the third. Further, the Commission set $5,500,000 as the maximum Penn-Central share of operating losses in any one year.
131
Finally, the Commission provided that under the purchase agreement, the trustees' certificates evidencing the loans were to be offset in an amount equal to the operating loss absorbed by Penn-Central. The Commission asserted that the burdens on the New Haven creditors caused by the loan-loss absorption agreement would be relatively small—and not significantly different from the burdens under a lease agreement. The Commission expected that the total amount loaned by Penn-Central over three years would probably be 'substantially less than $25 million.'8 It noted that the requirements for loans would increase in relation to the operating losses of the New Haven; but as the operating losses increased, Penn-Central would absorb a part of the increase. At the same time, the Commission pointed out that since the amount of losses to be assumed by Penn-Central would decline each year (from 100% to 50% to 25%), the creditors would have much to gain by speedily completing the reorganization proceedings.
132
The bondholder interests attack the operating loss provisions of the Commission's order—contending that Penn-Central should be required to absorb all the operating losses of the New Haven. They also assert that the purchase price approved by the Commission for the sale of New Haven assets to Penn-Central ($125,000,000, being the value of the consideration to be received by the New Haven) is too low. Further, as indicated above, they contend that the Commission is without authority to adopt a two-step reorganization plan which prevents the bondholders from voting on the first aspect of the plan—the sale of assets.
133
The New Haven trustees argue that the bondholders will have the opportunity to object to these actions of the Commission in the reorganization court and to seek judicial review of its action. Indeed, Oscar Gruss & Son (appellant in No. 830) and the Bondholders' Committee (appellant in No. 831) have indicated that they intend to seek judicial review of the November 16 order. The trustees also suggest that the questions presented involve only the quantum of consideration to be paid by Penn-Central in implementation of its eventual take-over of the New Haven, and do not merit postponing consummation of the Penn-Central merger.
134
On the other hand, the bondholders contend that their objections to the Commission's November 16 order are so substantial that even if they have only partial success on judicial review, the feasibility of inclusion would be open to serious question. If inclusion of the New Haven in the Penn-Central system could not be accomplished, a major underpinning in the Commission's finding that the merger was in the public interest would be removed.9 The New Haven might then have to be liquidated in the reorganization court. Perhaps eventual operation by the Federal Government, or by the States concerned, would be the outcome. In fact, appellant in No. 831 has pending before the reorganization court a petition for immediate liquidation of the New Haven. The bondholders, of course, seek to recover as much of their investment as possible. To the extent that any loans from Penn-Central to the New Haven would not be offset by Penn-Central's obligation to absorb a portion of the New Haven operating losses, the bondholders' equity would be diluted.
135
The Commission is commanded by § 5(2)(d) of the Act to authorize inclusion of a road only on 'equitable terms.'10 Are the operating loss provisions, as they now stand, 'equitable terms'? The provisions may well constitute a prelude to the slow bleeding or squeezing out of creditor interests, as their equity is diminished by loans.
136
High finance has a great inventive genius; and one does not have to be sophisticated to see how Penn-Central with the use of this loan device can pick up New Haven for a song.
137
The Commission has itself stated that the Penn-Central merger would not be in the public interest without the complete inclusion of the New Haven.11 Clearly we should not approve this merger and decide that the mandate of § 5(2) (b) has been fulfilled without at the same time concluding that the loan agreement and the sharing of the New Haven deficit are 'equitable.'
138
On its face the requirement that Penn-Central share the operating losses of the New Haven on a decreasing scale each year from 100% to 50% to 25%—seems inequitable. Why a 100—50—25 formula? Why not 100—10—1 or 50—25—10 or 25—50—100? The Commission does not clearly indicate how it arrived at its 100—50—25 formula. Of the two factors mentioned by it in making its determination (preventing endless litigation by New Haven creditors, and the inability to realize many economies during the interim period before the sale of New Haven's assets to Penn-Central), only the first would appear to have any relation to the adoption of a sliding-scale formula.
139
On its face this formula for sharing of losses seems inherently coercive. It would indeed appear that the Commission sought to force the creditors to accede to its proposal within a year. The pressure would indeed be great; for once the merger between Penn and Central is consummated, the New Haven creditors would have to absorb the losses of the New Haven at an increasing rate if they did not accept the Commission's proposal.
140
If that is the purpose and effect of this provision concerning Penn-Central's sharing of the operating losses of the New Haven, the issue may well have spent itself, unless we grant judicial review prior to the consummation of the merger. Of course, if the merger is approved, one way in which the coercive effect of this provision of the plan could be eliminated would be to undo the merger. But that gets back to the problem of unscrambling mergers of this kind and intricacy, once they are consummated—the difficulty emphasized by Mr. Justice Clark when the case was here before. 386 U.S. 372, 392, 87 S.Ct. 1100, 1110, 18 L.Ed.2d 159.
141
The Court, while not presuming to approve the November 16, 1967, order of the Commission as prescribing 'equitable terms' for inclusion, takes the position that the Commission has done all that is required at this point with respect to the inclusion of the New Haven. But I am unable to reconcile this position with the requirements of the statute, which directs in § 5(2)(d) that a road may be included in another only upon 'equitable terms.'
142
The coercive nature of the operating loss provision may well frustrate effective judicial review once the Penn-Central merger is a fact.
143
On the other hand, if the creditor interests do challenge the Commission's order in the courts, and are successful, inclusion in the Penn-Central system on 'equitable terms' at the time of that decision might well be impossible. The Commission itself seemed to recognize the possibility that the New Haven might not be included in the Penn-Central system in its November 16 report,12 although it evidently believed that the possibility of non-inclusion did not justify delaying consummation of the Penn-Central merger. Such an approach is not permissible under the statutory scheme, when the Commission has stated that the Penn-Central merger would not be in the public interest unless the New Haven were included in that merged system. And, as the bondholders have noted, there exists a substantial doubt whether the inclusion of the New Haven on equitable terms as required by § 5(2)(d) has been provided.
144
Is such a coercive provision an 'equitable' term within the meaning of § 5(2) (d)? Is 'equitable' to be taken to mean what is a 'fair' distribution of losses, risks, and burdens between the old creditor interests and the acquiring company? These are old and perennial problems in the reorganization and merger field. They involve a delicate weighing of legal rights and practical realities. How we can approve the merger under the statutory system without determining whether the loan provision and the provision for sharing of losses are 'equitable' remains a mystery.
1
See infra, at 511—512.
2
See Memorandum Order of the District Court, issued July 3, 1967. Circuit Judge Friendly, for the District Court, noted that 'litigation in six or more different district courts has seemingly been averted and all issues concentrated in a single court of first instance.' We agree that this is commendable. If review of the inclusion decision and of the merger decision were in different courts, the difficulties presented by these cases would be multipulied.
3
The Central Railroad of New Jersey (CNJ) asked and was granted a dispensation from the District Court's schedule for briefs and argument. The CNJ has reserved the right to assert that the Commission's order should contain certain protective conditions for it. It has waived the right to argue that the Penn-Central merger should be delayed. The complaint of the CNJ was not dismissed with the others and the Southern District of New York has yet to consider the position of this line.
4
The process of the New York court ran throughout the Nation. 28 U.S.C. § 2321. In addition, the United States waived possible objections on venue grounds to appearances by any party in the New York litigation. In these circumstances, it would be senseless to permit parties seeking to challenge the merger and the inclusion orders to bring numerous suits in many different district courts. See for the provision governing review of orders of administrative agencies in the courts of appeals, 28 U.S.C. § 2112.
5
The formula is directed to compensation for an approximation of the revenues which may be lost by the protected lines to Penn-Central. Revenue ratios are determined by dividing the combined 1965 freight revenues of Penn and Central into the 1965 freight revenues of each of the protected lines. For any given subsequent year, the total freight revenue of the merged Penn-Central and of the protected line in question is then multiplied by that line's revenue ratio. The actual earned freight revenue of the protected line for the given year is then subtracted from the figure obtained by this multiplication. If the result is a positive figure, it is multiplied by an indemnification ratio of 50%, which yields the total amount of indemnity owed. The Commission has indicated that the indemnity conditions are to supplement the traffic conditions not to replace them; Penn-Central is not given a choice of obeying the traffic conditions or paying liquidated damages, in the form of indemnity.
6
E—L and D & H unsuccessfully sought from the Commission a provision for 'capital loss indemnification' to be paid them by Penn-Central in the event that the price for their inclusion in N & W was reduced because of the effect of the Penn-Central merger on their traffic. Although E—L and D & H have presented an appeal (No. 832) on this issue to this Court, the appeal is contingent on our reversal of the Commission's inclusion terms or our upsetting of the protective conditions. Because we today make neither of these decisions, the appeal of E—L and D & H is dismissed.
7
In establishing the protective conditions, the Commission has ordered '(t) hat the jurisdiction of this Commission be, and it is hereby, retained for the purpose of making such further order or orders in these proceedings as may be necessary or appropriate, in addition to those orders under jurisdiction expressly retained in the prior reports and orders of the Commission and to those orders which may be issued under section 5(9) of the Interstate Commerce Act.' See n. 11, infra.
8
The 'protected period' during which the conditions are to be in effect will run from the date of consummation of the merger until the date of actual 'inclusion of (the) protected carrier in a Railway System which includes Norfolk & Western Railway Company or any successor thereto, or in the Railway System to be operated by the merged company * * *; provided, however, that if, as to any such protected carrier, no such inclusion shall have been effected within 1 year (of) the final determination of (i) the petitions which such protected carrier now has pending for inclusion in such Railway Systems, and (ii) any new or supplemental petition or petitions which such protected carrier may seasonably file for inclusion in any such Railway System then, as to that protected carrier, the protective period shall end when this Commission shall so order.' 330 I.C.C., at 362.
9
N & W places emphasis on a letter written to stockholders by the President of D & H, who is a director and a large stockholder, to the effect that he is formulating an alternative proposal to inclusion in the N & W. But at oral argument counsel for D & H reiterated that road's desire that this Court affirm the inclusion order and the merger judgment, and there is no basis in the record before us for concluding that the D & H board of directors has changed its position.
10
The remaining arguments by appellants in No. 778 may be briefly noted and answered. There is no substance to appellants' contention that the Commission failed to find that the consummation of the merger under the protective conditions would be in the public interest. As the District Court concluded, this finding is 'implicit in the very concept of devising conditions permitting consummation prior to actual inclusion of the protected roads in a major system and was made explicit when the Commission said that only 'some of the merger benefits' would be prevented and that the conditions would not work 'an undue hardship upon applicants either in their operations or merger implementation.' 327 I.C.C., at 532; see also 330 I.C.C., at 361. To deny evidentiary basis for this finding would defy common sense.' 279 F.Supp., at 329. And appellants' attack upon the District Court's opinion on the basis of SEC v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 1760, 91 L.Ed. 1995 (1947), totally misconceives the limited office of that decision. See n. 14, infra.
11
Section 5(9) provides that 'the Commission may from time to time, for good cause shown, make such orders, supplemental to any order made (under its power to authorize railroad consolidations) * * * as it may deem necessary or appropriate.'
12
N & W contends that, for this reason, the Commission should have considered alternatives to inclusion as possible means of saving the service of the protected lines. We believe N & W is considerably embarrassed, in making these arguments, by the fact that the Commission has contemplated inclusion of the protected lines in N & W ever since 1964, when N & W was permitted to consummate its highly successful merger with the Nickel Plate, and when N & W consented in principle to the inclusion of the three roads in N & W. The protected lines were scarcely faring better in 1964 than they are now. Despite the Commission's recognition that these lines are 'weak,' it has found their inclusion in N & W to be in the public interest.
13
There is no substance to N & W's argument that the Commission failed to consider the possibility that one or more of the protected lines would not join N & W. The Commission plainly did consider this possibility. It was not required to set a scale of terms for inclusion depending on the various hypothetical consequences of its order.
14
We reject N & W's argument that the District Court was guilty of a violation of the rule of SEC v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 1760, 91 L.Ed. 1995 (1947). N & W attempts to extend the principle of that case far beyond its limits. But even if we were to accept N & W's construction of the case, N & W's conclusion would not follow. N & W relies on a statement by the District Court to the effect that 'our discussion has revealed many ways by which, in our view, the Commission could support terms as favorable as it has established even if the Court should have held some of its subsidiary findings to be insufficient.' 279 F.Supp., at 355. But that statement does not indicate that the court was basing its affirmance of the Commission on grounds other than those relied on by the Commission itself. On the contrary, the District Court appears to have agreed in substance with all the major findings of the Commission. To the Commission's analysis it added several points that it believed would also support the Commission's conclusions. The ultimate terms for inclusion were, of necessity, approximations based on the probable value of the protected lines to N & W. The District Court found that these values had been properly computed but that, even if they were not, N & W was protected by several adjustments that had been made by the Commission in order to ensure that inclusion was fair to N & W.
1
The Borough of Moosic was a party to the N & W Inclusion Case before the Commission, in which it offered testimony and submitted exceptions. It was not, however, a party before the Commission in the Penn-Central Merger Case, reviewed by this Court last Term. Moosic, however, seeks to challenge the merger order in the Pennsylvania action. Since Moosic is served only by E—L and D & H, the Borough notes that it became concerned with the proposed Penn-Central merger only after it learned that the merger was in part responsible for the petitions of E—L and D & H for inclusion into N & W.
2
The City of Scranton and Milton J. Shapp were parties to both proceedings before the Commission, and were intervenors in the
previous action commenced in the Southern District of New York, which was reviewed by this Court last Term. They were the only parties before the New York court last Term that challenged the basic validity of the Penn-Central merger. (See Baltimore & Ohio R. Co. v. United States, 386 U.S. 372, 462, 87 S.Ct. 1100, 1147, 18 L.Ed.2d 159 (dissenting opinion of MR. JUSTICE FORTAS).) Their original complaint in the New York court was dismissed with prejudice by that court on October 19, 1967, pursuant to Rule 41(b), Fed.Rules Civ.Proc., for failure to file a supplemental complaint attacking the Commission's order of June 9, 1967, in the Penn-Central Merger Case. Scranton and Shapp were never parties to the N & W Inclusion Case in the New York court.
Milton J. Shapp is a stockholder of the Pennsylvania Railroad Company, and a citizen of Pennsylvania. The City of Scranton is served by E—L, D & H and the Central Railroad of New Jersey. The city's interest stems both from the fact that the Penn-Central merger has necessitated the inclusion of E—L and D & H into N & W, thus making Scranton a two-railroad town, and from its fears that the proposed N & W—C & O merger will be approved along with the inclusion of CNJ therein, which would reduce Scranton to a one-railroad town. Since Scranton is a part of the Scranton-Wilkes Barre industrial and distribution complex of northeastern Pennsylvania, it also has an interest in the other railroads serving that economic area—the Reading Company, Lehigh Valley, and the Pennsylvania Railroad, together with their switching lines. The city and its surrounding area constitute one of the most important centers of railroad activity in the Eastern District.
3
City of Pottsville was a party to the Commission proceedings involving the Penn-Central merger. The city is a municipal corporation located in Schuylkill County, Pennsylvania, and is served by the Reading Company and the Pennsylvania Railroad Company.
4
Pottsville (No. 433) seeks review of the order of the Pennsylvania court denying its application for intervention in the Moosic case on the ground that the city was not located in the Middle District of Pennsylvania and 'the defendant has objected to parties raising their objections to these I.C.C. Orders other than in the Southern District of New York * * *.' The Government, however, has no objection to the intervention of Pottsville below, and concedes that the court was in error in assuming that the Government's desire to have all actions challenging the Commission's orders brought in the New York court constituted an objection to Pottsville's formally becoming a party in the Moosic case. I therefore concur with the Court and agree to vacate the order denying Pottsville's application for leave to intervene and to remand to the District Court where Pottsville may renew its application.
5
This brusque treatment of the community allegations contrasts sharply with the lengthy discussion of certain community interest aspects of the Penn-Central merger found in the Recommended Report in Finance Docket No. 21989, at 229—286.
6
With respect to the N & W Inclusion action, the court below noted that only 'two points come even close to the larger public interest in the transaction * * *.' Those points were: first, N & W's complaint that the Commission should have considered the desirability of including the three protected roads along with the Reading Co. and the Central of New Jersey as wholly owned subsidiaries, not in the N & W system, but in the proposed N & W—B & O—C & O system; and second, N & W's assertion that the Commission erred in failing to find that inclusion of any of the three protected roads in the Penn-Central system rather than the N & W system would not be in the public interest. N & W has pursued the latter argument in this Court, asserting that by failing to make the suggested finding the Commission has left open the possibility that one or more of the three protected roads can eventually obtain inclusion in the merged Penn-Central system if inclusion in the N & W system is not voted by shareholders. The court rejected both of these contentions, holding that the Commission was not required to inject the N & W—B & O—C & O proposal into the instant proceeding or to make the negative finding requested by N & W to preclude the possibility of eventual inclusion of one or more of the three roads in the Penn-Central system. The court directed the remainder of its opinion dealing with the N & W Inclusion Case to examining the financial terms of the inclusion order, the employee protective conditions imposed by the Commission, the Commission's general standard for, and method of, valuation, certain attacks by E—L, D & H and B & M on matters of valuation peculiar to each road, and the possibility of non-inclusion of D & H and/or B & M in the N & W system—none of which involved the community impact problem. Erie-Lackawanna R. Co. v. United States, 279 F.Supp., at 336—352 (D.C.S.D.N.Y.1967).
7
Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22.
8
Moosic states in its petition (No. 663, Misc.) that it did not wish to litigate in New York because that court had decided to treat the Penn-Central Merger Case and the N & W Inclusion Case as 'separate proceedings for judicial review purposes,' and such an approach would prejudice Moosic 'since the adverse impact of N & W Inclusion must be considered as an integral part of any judicial review of PRR—NYC, and vice versa.' Moosic also notes that 'the community public interest issues inherent in (its) case * * * are clearly outside the scope of the litigation in the other forms.'
9
In Hansberry v. Lee, 311 U.S. 32, 43, 61 S.Ct. 115, 119, 85 L.Ed. 22, we stated that even 'when the only circumstance defining the class is that the determination of the rights of its members turns upon a single issue of fact or law,' it might be possible for a State constitutionally to adopt a procedure whereby the judgment could be made binding on all members of the class; but only if 'the procedure were so devised and applied as to insure that those present are of the same class as those absent and that the litigation is so conducted as to insure the full and fair consideration of the common issue.' This Court in the instant case makes no inquiry, however, whether Moosic can be termed a member of the 'same class' as one or more of the parties in the New York court; or whether the issues are 'common,' and if they are, whether the proceedings have been conducted to ensure their 'full and fair consideration.'
The Court does not appear to argue that the action in the New York court was a 'class action' within Rule 23, Fed.Rules Civ.Proc. Indeed, the court below did not treat it as such, nor make the findings (Rule 23(a) and (b)) or give the type of notice (Rule 23(c)) required by that Rule for class actions.
I can find no authority for a rule which would require a party not under the jurisdiction of the inviting court to respond affirmatively to an invitation to intervene or else be bound by an adverse decision. Indeed, Chase National Bank v. City of Norwalk, 291 U.S. 431, 54 S.Ct. 475, 78 L.Ed. 894, would suggest that the rule is to the contrary. The Court stated in that case that '(t)he law does not impose upon any person absolutely entitled to a hearing the burden of voluntary intervention in a suit to which he is a stranger. * * * Unless duly summoned to appear in a legal proceeding, a person not a privy may rest assured that a judgment recovered therein will not affect his legal rights.' Id., at 441, 54 S.Ct., at 479.
10
Our decisions in Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254, and Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945, indicate that § 1404(a) permits transfer only to a district court in which the plaintiff would have been entitled, without regard to consent by the defendant, to bring his action originally. Moosic and Scranton could not have brought an original action in New York.
11
If statutory provisions provide that a person aggrieved must litigate his contentions in a specific federal court, fair notice has been given that if he does not appear and present his claims in the designated court, he will forfeit his right to be heard. But when there is no such statutory provision and when indeed the applicable statute provides for review in the Pennsylvania District Court, the place of residence, is due process satisfied when an aggrieved person, who was never a party in the New York court or in privity with any party there, is deprived of a right to be heard on an issue not litigated in that court, simply because he was invited to participate and the United States waived objections? That, I submit, is not a wholly frivolous question.
Nationwide service of process was available to the New York court. 28 U.S.C. § 2321. The United States and the ICC had waived all objections to venue against any party seeking to litigate in New York. But although the United States and the Commission moved successfully in the New York court under Rule 19, Fed.Rules Civ.Proc., to join N & W as an involuntary plaintiff in D & H's action challenging the inclusion order, they made no effort to join Moosic pursuant to that Rule.
12
'Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but 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.' Holmes, J., dissenting, in Northern Securities Co. v. United States, 193 U.S. 197, 400—401, 24 S.Ct. 436, 468, 48 L.Ed. 679.
1
11 U.S.C. § 205. See also 49 U.S.C. § 20b.
2
Pennsylvania Railroad Co.—Merger—New York Central Railroad Co., Finance Docket No. 21989, 331 I.C.C. 643, 653.
3
Id., at 653—654.
4
Id., at 112. With respect to the 'wasting asset' doctrine in Chapter X proceedings, see, e.g., In re The Sire Plan, Inc., 332 F.2d 497 (C.A.2d Cir. 1964); In re V. Loewer's Gambrinus Brewery Co., Inc., 141 F.2d 747 (C.A.2d Cir. 1944).
5
By an order dated December 19, 1967, the reorganization court (D.C.Conn.) authorized the New Haven Trustees to issue up to $25,000,000 in trustees' certificates to evidence any loans from Penn-Central obtained pursuant to the Commission's November 16, 1967 order. The court ordered that each certificate issued was to constitute an expense of administration equal in priority to other expenses of administration; and that the proceeds derived by the Trustees from the issuance of the certificates could be expended by them for purposes deemed necessary within their discretion (including current maintenance and operation expenses), subject to the supervision of the court. The court provided that the Trustees would not be required to seek any further authorization to make borrowings under the Penn-Central loan agreement; but it directed them to notify the court and the other parties concerned when they intended to take down a loan, and reserved jurisdiction to modify its order with respect to any of these future borrowings.
6
331 I.C.C. 643, 704.
7
See Id., at 717—720.
8
Id., at 719.
9
The Commission authorized the Penn-Central merger, subject to the express condition (Condition No. 8, in Appendix A to its Report and Order dated April 6, 1966, Pennsylvania Railroad Co. Merger—New York Central Railroad Co., 327 I.C.C. 475, as modified in 328 I.C.C. 304 and 330 I.C.C. 328), that the merged system include the properties and operations of the New Haven. The Commission found that the merger would effectively destroy the ability of the New Haven to survive, and would not be in the public interest without the complete inclusion of the New Haven.
10
49 U.S.C. § 5(2)(d). Section 5(2)(b) authorizes acquisition of one carrier by another on terms which are 'just and reasonable.' See, e.g., Schwabacher v. United States, 334 U.S. 182, 68 S.Ct. 958, 92 L.Ed. 1305; Cleveland, C., C. & St. L.R. Co. v. Jackson, 22 F.2d 509 (C.A.6th Cir. 1927); Stott v. United States, 166 F.Supp. 851 (D.C.S.D.N.Y.1958).
11
Pennsylvania Railroad Co.—Merger—New York Central Railroad Co., 327 I.C.C. 475, 524.
12
In its summary of the contingencies upon which the obligation of Penn-Central to loan $25,000,000 to the New Haven would be terminated, the Commission included: 'If a regulatory authority or court by a final and effective order grants permission to liquidate the NH or to dispose of it to someone other than Penn-Central'; and 'If it should be determined that Penn-Central shall not acquire the NH.'
| 78
|
389 U.S. 429
88 S.Ct. 664
19 L.Ed.2d 683
Oswald ZSCHERNIG et al., Appellants,v.William J. MILLER, Administrator et al.
No. 21.
Argued Nov. 7, 1967.
Decided Jan. 15, 1968.
Peter A. Schwabe, Sr., Portland, Or., for appellants; Peter A. Schwabe, Jr., on the brief.
Wayne M. Thompson, Salem, Or., for appellees; Robert Y. Thornton, Atty. Gen., on the brief.
Briefs of amici curiae were filed by Sol. Gen. Thurgood Marshall, Acting Asst. Atty. Gen. Carl Eardley, John S. Martin, Jr., and Alan S. Rosenthal, Washington, D.C., for the United States and by Edward Mosk, Hollywood, Cal., for Slaff, Mosk & Rudman.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This case concerns the disposition of the estate of a resident of Oregon who died there intestate in 1962. Appellants are decedent's sole heirs and they are residents of East Germany. Appellees include members of the State Land Board that petitioned the Oregon probate court for the escheat of the net proceeds of the estate under the provisions of Ore.Rev.Stat. § 111.070 (1957),1 which provides for escheat in cases where a nonresident alien claims real or personal property unless three requirements are satisfied:
2
(1) the existence of a reciprocal right of a United States citizen to take property on the same terms as a citizen or inhabitant of the foreign country; (2) the right of United States citizens to receive payment here of funds from estates in the foreign country; and
3
(3) the right of the foreign heirs to receive the proceeds of Oregon estates 'without confiscation.'
4
The Oregon Supreme Court held that the appellants could take the Oregon realty involved in the present case by reason of Article IV of the 1923 Treaty of Friendship, Commerce and Consular Rights with Germany2 (44 Stat. 2135) but that by reason of the same Article, as construed in Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633, they could not take the personalty. 243 Or. 567, 412 P.2d 781; 243 Or. 592, 415 P.2d 15. We noted probable jurisdiction. 386 U.S. 1030, 87 S.Ct. 1475, 18 L.Ed.2d 590.
5
The Department of Justice, appearing as amicus curiae submits that, although the 1923 Treaty is still in force, Clark v. Allen should be overruled insofar as it construed the personalty provision of Article IV. That portion of Article IV speaks of the rights of '(n)ationals of either High Contracting Party' to dispose of 'their personal property of every kind within the territories of the other.' That literal language and its long consistent construction, we held in Clark v. Allen, 'does not cover personalty located in this country and which an American citizen undertakes to leave to German nationals.' 331 U.S., at 516, 67 S.Ct., at 1438.
6
We do not accept the invitation to re-examine our ruling in Clark v. Allen. For we conclude that the history and operation of this Oregon statute make clear that § 111.070 is an intrusion by the State into the field of foreign affairs which the Constitution entrusts to the President and the Congress. See Hines v. Davidowitz, 312 U.S. 52, 63, 61 S.Ct. 399, 402, 85 L.Ed. 581.
7
As already noted3 one of the conditions of inheritance under the Oregon statute requires 'proof that such foreign heirs, distributees, devisees or legatees may receive the benefit, use or control of money or property from estates of persons dying in this state without confiscation, in whole or in part, by the governments of such foreign countries,' the burden being on the nonresident alien to establish that fact.
8
This provision came into Oregon's law in 1951. Prior to that time the rights of aliens under the Oregon statute were defined in general terms of reciprocity,4 similar to the California Act which we had before us in Clark v. Allen, 331 U.S., at 506, 67 S.Ct., at 1433 n. 1.
9
We held in Clark v. Allen that a general reciprocity clause did not on its face intrude on the federal domain. 331 U.S., at 516—517, 67 S.Ct., at 1438—1439. We noted that the California statute, then a recent enactment, would have only 'some incidental or indirect effect in foreign countries.' Id., at 517, 67 S.Ct., at 1439.5
10
Had that case appeared in the posture of the present one, a different result would have obtained. We were there concerned with the words of a statute on its face, not the manner of its application. State courts, of course, must frequently read, construe, and apply laws of foreign nations. It has never been seriously suggested that state courts are precluded from performing that function, albeit there is a remote possibility that any holding may disturb a foreign nation—whether the matter involves commercial cases, tort cases, or some other type of controversy. At the time Clark v. Allen was decided, the case seemed to involve no more than a routine reading of foreign laws. It now appears that in this reciprocity area under inheritance statutes, the probate courts of various States have launched inquiries into the type of governments that obtain in particular foreign nations—whether aliens under their law have enforceable rights, whether the so-called 'rights' are merely dispensations turning upon the whim or caprice of government officials, whether the representation of consuls, ambassadors, and other representatives of foreign nations is credible or made in good faith, whether there is in the actual administration in the particular foreign system of law any element of confiscation.
11
In a California case, involving a reciprocity provision, the United States made the following representation:
12
'the operation and effect of the statute is inextricably enmeshed in international affairs and matters of foreign policy. The statute does not work disinheritance of, or affect ownership of property in California by, any group or class, but on the contrary operates in fields exclusively for, and preempted by, the United States; namely, the control of the international transmission of property, funds, and credits, and the capture of enemy property. The statute is not an inheritance statute, but a statute of confiscation and retaliation.' In re Bevilacqua's Estate, 161 P.2d 589, 593 (Dist.Ct.App.Cal.) superseded by 31 Cal.2d 580, 191 P.2d 752.
13
In its brief amicus curiae, the Department of Justice states that: 'The government does not * * * contend that the application of the Oregon escheat statute in the circumstances of this case unduly interferes with the United States' conduct of foreign relations.'
14
The Government's acquiescence in the ruling of Clark v. Allen certainly does not justify extending the principle of that case, as we would be required to do here to uphold the Oregon statute as applied; for it has more than 'some incidental or indirect effect in foreign countries,' and its great potential for disruption or embarrassment makes us hesitate to place it in the category of a diplomatic bagatelle.
15
As we read the decisions that followed in the wake of Clark v. Allen, we find that they radiate some of the attitudes of the 'cold war,' where the search is for the 'democracy quotient' of a foreign regime as opposed to the Marxist theory.6 The Oregon statute introduces the concept of 'confiscation,' which is of course opposed to the Just Compensation Clause of the Fifth Amendment. And this has led into minute inquiries concerning the actual administration of foreign law, into the credibility of foreign diplomatic statements, and into speculation whether the fact that some received delivery of funds should 'not preclude wonderment as to how many may have been denied 'the right to receive' * * *.' See State Land Board v. Kolovrat, 220 Or. 448, 461—462, 349 P.2d 255, 262, rev'd sub nom. Kolovrat v. Oregon, 366 U.S. 187, 81 S.Ct. 922, 6 L.Ed.2d 218 on other grounds.
16
That kind of state involvement in foreign affairs and international relations—matters which the Constitution entrusts solely to the Federal Government—is not sanctioned by Clark v. Allen. Yet such forbidden state activity has infected each of the three provisions of § 111.070, as applied by Oregon.
17
In State Land Board v. Pekarek, 234 Or. 74, 378 P.2d 734, the Oregon Supreme Court in ruling against a Czech claimant because he had failed to prove the 'benefit' requirement of subsection (1)(c) of the statute said:
18
'Assuming, without deciding, that all of the evidence offered by the legatees was admissible, it can be given relatively little weight. The statements of Czechoslovakian officials must be judged in light of the interest which they had in the acquisition of funds for their government. Moreover, in judging the credibility of these witnesses we are entitled to take into consideration the fact that declarations of government officials in communist-controlled countries as to the state of affairs existing within their borders do not always comport with the actual facts.' Id., at 83, 378 P.2d, at 738.
19
Yet in State Land Board v. Schwabe, 240 Or. 82, 400 P.2d 10, where the certificate of the Polish Ambassador was tendered against the claim that the inheritance would be confiscated abroad, the Oregon court, appraising the current attitude of Washington, D.C., toward Warsaw, accepted the certificate as true. Id., at 84, 400 P.2d at 11.
20
In State By and Through State Land Board v. Rogers, 219 Or. 233, 347 P.2d 57, the court held Bulgarian heirs had failed to prove the requirement of what is now § (1)(b) of the reciprocity statute, the 'right' of American heirs of Bulgarian decedents to get funds out of Bulgaria into the United States. Such transmission of funds required a license from the Bulgarian National Bank, but the court held the fact that licenses were regularly given insufficient, because they were issued only at the discretion or 'whim' of the bank. Id., at 245, 347 P.2d, at 63.7
21
As one reads the Oregon decisions, it seems that foreign policy attitudes, the freezing or thawing of the 'cold war,' and the like are the real desiderata.8 Yet they of course are matters for the Federal Government, not for local probate courts.
22
This is as true of (1)(a) of § 111.070 as it is of (1)(b) and (1)(c). In Clostermann v. Schmidt, 215 Or. 55, 332 P.2d 1036, the court—applying the predecessor of (1)(a)—held that not only must the foreign law give inheritance rights to Americans, but the political body making the law must have 'membership in the family of nations' (id., at 65, 332 P.2d, at 1041), because the purpose of the Oregon provision was to serve as 'an inducement to foreign nations to so frame the inheritance laws of their respective countries in a manner which would insure to Oregonians the same opportunities to inherit and take personal property abroad that they enjoy in the state of Oregon.' Id., at 68, 332 P.2d, at 1042.
23
In In re Estate of Krachler, 199 Or. 448, 263 P.2d 769, the court observed that the phrase 'reciprocal right' in what is now part (1)(a) meant a claim 'that is enforceable by law.' Id., at 455, 263 P.2d, at 773. Although certain provisions of the written law of Nazi Germany appeared to permit Americans to inherit, they created no 'right,' since Hitler had absolute dictatorial powers and could prescribe to German courts rules and procedures at variance with the general law. Bequests "grossly opposed to sound sentiment of the people" would not be given effect. Id., at 503, 263 P.2d, at 794.9
24
In short, it would seem that Oregon judges in construing § 111.070 seek to ascertain whether 'rights' protected by foreign law are the same 'rights' that citizens of Oregon enjoy. If, as in the Rogers case, the alleged foreign 'right' may be vindicated only through Communist-controlled state agencies, then there is no 'right' of the type § 111.070 requires. The same seems to be true if enforcement may require approval of a Fascist dictator, as in Krachler. The statute as construed seems to make unavoidable judicial criticism of nations established on a more authoritarian basis than our own.
25
It seems inescapable that the type of probate law that Oregon enforces affects international relations in a persistent and subtle way. The practice of state courts in withholding remittances to legatees residing in Communist countries or in preventing them from assigning them is notorious.10 The several States, of course, have traditionally regulated the descent and distribution of estates. But those regulations must give way if they impair the effective exercise of the Nation's foreign policy. See Miller, The Corporation as a Private Government in the World Community, 46 Va.L.Rev. 1539, 1542—1549 (1960). Where those laws conflict with a treaty, they must bow to the superior federal policy. See Kolovrat v. Oregon, 366 U.S. 187, 81 S.Ct. 922. Yet, even in absence of a treaty, a State's policy may disturb foreign relations. As we stated in Hines v. Davidowitz, supra, 312 U.S., at 64, 61 S.Ct., at 402, 'Experience has shown that international controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs to another's subjects inflicted, or permitted, by a government.' Certainly a State could not deny admission to a traveler from East Germany nor bar its citizens from going there. Passenger Cases, 7 How. 283, 12 L.Ed. 702; cf. Crandall v. State of Nevada, 6 Wall. 35, 18 L.Ed. 744; Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204. If there are to be such restraints, they must be provided by the Federal Government. The present Oregon law is not as gross an intrusion in the federal domain as those others might be. Yet, as we have said, it has a direct impact upon foreign relations and may well adversely affect the power of the central government to deal with those problems.
26
The Oregon law does, indeed, illustrate the dangers which are involved if each State, speaking through its probate courts, is permitted to establish its own foreign policy.
27
Reversed.
28
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
29
Mr. Justice STEWART, with whom Mr. Justice BRENNAN joins, concurring.
30
While joining the opinion of the Court, I would go further. Under the Oregon law involved in this case, a foreigner cannot receive property from an Oregon decedent's estate unless he first meets the burden of proving, to the satisfaction of an Oregon court, that his country (1) grants to United States citizens a 'reciprocal right' to take property on the same terms as its own citizens; (2) assures Americans the right 'to receive payment' here of funds orginating from estates in that country; and (3) gives its own citizens the 'benefit, use or control' of property received from an Oregon estate 'without confiscation, in whole or in part.' The East German claimants in this case did not show in the Oregon courts that their country could meet any one of these criteria. I believe that all three of the statutory requirements on their face are contrary to the Constitution of the United States.
31
In my view, each of the three provisions of the Oregon law suffers from the same fatal infirmity. All three launch the State upon a prohibited voyage into a domain of exclusively federal competence. Any realistic attempt to apply any of the three criteria would necessarily involve the Oregon courts in an evaluation, either expressed or implied, of the administration of foreign law, the credibility of foreign diplomatic statements, and the policies of foreign governments. Of course state courts must routinely construe foreign law in the resolution of controversies properly before them, but here the courts of Oregon are thrust into these inquiries only because the Oregon Legislature has framed its inheritance laws to the prejudice of nations whose policies it disapproves and thus has trespassed upon an area where the Constitution contemplates that only the National Government shall operate. 'For local interests the several states of the Union exist, but for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power.' Chinese Exclusion Case, 130 U.S. 581, 606, 9 S.Ct. 623, 630, 32 L.Ed. 1068. 'Our system of government is such that the interest of the cities, counties and states, no less than the interest of the people of the whole nation, imperatively requires that federal power in the field affecting foreign relations be left entirely free from local interference.' Hines v. Davidowitz, 312 U.S. 52, 63, 61 S.Ct. 399, 402, 85 L.Ed. 581.
32
The Solicitor General, as amicus curiae, says that the Government does not 'contend that the application of the Oregon escheat statute in the circumstances of this case unduly interferes with the United States' conduct of foreign relations.' But that is not the point. We deal here with the basic allocation of power between the States and the Nation. Resolution of so fundamental a constitutional issue cannot vary from day to day with the shifting winds at the State Department. Today, we are told, Oregon's statute does not conflict with the national interest. Tomorrow it may. But, however that may be, the fact remains that the conduct of our foreign affairs is entrusted under the Constitution to the National Government, not to the probate courts of the several States. To the extent that Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633, is inconsistent with these views, I would overrule that decision.
33
Mr. Justice HARLAN, concurring in the result.
34
Although I agree with the result reached in this case, I am unable to subscribe to the Court's opinion, for three reasons. First, by resting its decision on the constitutional ground that this Oregon inheritance statute infringes the federal foreign relations power, without pausing to consider whether the 1923 Treaty of Friendship, Commerce and Consular Rights with Germany1 itself vitiates this application of the state statute, the Court has deliberately turned its back on a cardinal principle of judicial review. Second, correctly construed the 1923 treaty, in my opinion, renders Oregon's application of its statute in this instance impermissible, thus requiring reversal of the state judgment. Third, the Court's constitutional holding, which I reach only because the majority has done so, is in my view untenable. The impact of today's holding on state power in this field, and perhaps in other areas of the law as well, justifies a full statement of my views upon the case.
I.
35
Even in this age of rapid constitutional change, the Court has continued to proclaim adherence to the principle that decision of constitutional issues should be avoided wherever possible.2 In his celebrated concurring opinion in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 56 S.Ct.466, 480, 80 L.Ed. 688, Mr. Justice Brandeis listed the self-imposed rules by which the Court has avoided the unnecessary decision of constitutional questions. In his fourth rule he dealt with the situation presented by this case, declaring that:
36
'The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. * * * Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 191, (29 S.Ct. 451, 53 L.Ed. 753); Light v. United States, 220 U.S. 523, 538 (31 S.Ct. 485, 55 L.Ed. 570.)' Id., at 347, 56 S.Ct., at 483.3
37
The above rule should control the disposition of this case, for there is what I think must be regarded, within the meaning of Ashwander, as a nonconstitutional ground on which the decision could be founded. Although the appellants chose to argue only the constitutional question, the United States, as amicus curiae, forcefully, and I believe correctly, contended that the full relief sought by the appellants should be afforded by overruling the construction of the 1923 treaty, rather than the constitutional holding, in Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633. The Court simply states that '(w)e do not accept the invitation to re-examine our ruling in Clark v. Allen.' See ante, at 432. I believe that the principle of avoiding unnecessary constitutional adjudication obliges us to accept that invitation and to inquire whether the treaty might provide an adequate alternative ground for affording the appellants their due.4
II.
38
Article IV of the 1923 treaty with Germany provides:
39
'Where, on the death of any person holding real or other immovable property or interests therein within the territories of one High Contracting Party, such property or interest therein would, by the laws of the country or by a testamentary disposition, descend or pass to a national of the other High Contracting Party, whether resident or non-resident, were he not disqualified by the laws of the country where such property or interests therein is or are situated, such national shall be allowed a term of three years in which to sell the same, this term to be reasonably prolonged if circumstances render it necessary, and withdraw the proceeds thereof, without restraint or interference, and exempt from any succession, probate or administrative duties or charges other than those which may be imposed in like cases upon the nationals of the country from which such proceeds may be drawn.
40
'Nationals of either High Contracting Party may have full power to dispose of their personal property of every kind within the territories of the other, by testament, donation, or otherwise, and their heirs, legatees and donees, of whatsoever nationality, whether resident or non-resident, shall succeed to such personal property, and may take possession thereof, either by themselves or by others acting for them, and retain or dispose of the same at their pleasure subject to the payment of such duties or charges only as the nationals of the High Contracting Party within whose territories such property may be or belong shall be liable to pay in like cases.'
41
In Clark v. Allen, supra, this Court considered the application of this treaty provision to a case much like the present one. In Clark, one who was apparently an American citizen died in California and left her real and personal property to German nationals. The California Probate Code provided that
42
'The rights of aliens not residing within the United States * * * to take either real or personal property or the proceeds thereof in this State by succession or testamentary disposition, upon the same terms and conditions as residents and citizens of the United States is dependent in each case upon the existence of a reciprocal right upon the part of citizens of the United States to take real and personal property and the proceeds thereof upon the same terms and conditions as residents and citizens of the respective countries of which such aliens are inhabitants and citizens and upon the rights of citizens of the United States to receive by payment to them within the United States or its territories money originating from the estates of persons dying within such foreign countries.' Cal.Prob.Code § 259, added by Stats. 1941, c. 895, § 1.
43
The Clark Court first considered whether the 1923 treaty with Germany had survived the events of the years 1923—1947. It concluded that the treaty was still in effect and that it clearly entitled the German citizens to take the real estate left them by the decedent.
44
The Court then went on to discuss the application of the treaty to personalty. It noted that a practically identical provision of a treaty with Wurttemburg had been held in the 1860 case of Frederickson v. State of Louisiana, 23 How. 445, 16 L.Ed. 577, not to govern '(t)he case of a citizen or subject of the respective countries residing at home, and disposing of (personal) property there in favor of a citizen or subject of the other * * *,' id., at 447, and that the Frederickson decision had been followed in 1917 cases involving three other treaties.5 The Court then said: the territory of the 'other' contracting party; and it is 'such personal property' that the 'heirs, legatees and donees' are entitled to take.
45
'Petitioner, however, presents a detailed account of the history of the clause which was not before the Court in Frederickson v. State of Louisiana, supra, and which bears out the construction that it grants the foreign heir the right to succeed to his inheritance or the proceeds thereof. But we do not stop to review that history. For the consistent judicial construction of the language since 1860 has given it a character which the treaty-making agencies have not seen fit to alter. And that construction is entirely consistent with the plain language of the treaty. We therefore do not deem it appropriate to change that construction at this late date, even though as an original matter the other view might have much to commend it.' 331 U.S., at 515—516, 67 S.Ct., at 1438.
46
In the case now before us, an American citizen died in Oregon, leaving property to relatives in East Germany. An Oregon statute conditioned a nonresident alien's right to inherit property in Oregon upon the existence of a reciprocal right of American citizens to inherit in the alien's country upon the same terms as citizens of that country; upon the right of American citizens to receive payment within the United States from the estates of decedents dying in that country; and upon proof that the alien heirs of the American decedent would receive the benefit, use, and control of their inheritance without confiscation.6 The Oregon Supreme Court affirmed the finding of the trial court that the evidence did not establish that American citizens were accorded reciprocal rights to take property from or to receive the proceeds of East German estates. However, it found that the 1923 treaty was still effective with respect to East Germany, and consequently held that under Clark v. Allen the East German heirs must be permitted to take the real, though not the personal, property despite the Oregon statute.
47
I, too, believe that the 1923 treaty is still applicable to East Germany.7 However, I am satisfied that Clark v. Allen should not be followed insofar as the Court there held that the words of the 1923 treaty must be taken to bear the meaning ascribed to them in Frederickson v. State of Louisiana because of the 'consistent judicial construction of the language since 1860.' This reasoning assumes both that the drafters of the 1923 treaty knew of the Frederickson decision and that they thought Frederickson would control the interpretation of that treaty. The first assumption seems open to substantial doubt, and the second is not beyond question.
48
There is evidence that in 1899, almost 40 years after the Frederickson decision, the State Department's treaty draftsmen were not aware of the meaning given to the crucial treaty language in that opinion. For in 1895 the British Ambassador initiated correspondence with the State Department in which he proposed a treaty which would assure that 'no greater charges (would) be imposed * * * on real or personal property in the United States inherited by British subjects, whether demiciled within the union or not, then are imposed upon property inherited by American citizens,' in return for provisions assuring to American citizens reciprocal rights in Great Britain.8 The ensuing treaty of 18999 contained language substantially identical to that in the subsequent 1923 treaty with Germany. Since it is highly unlikely that the British Ambassador intended that British subjects should be able to inherit personal property from American decedents only if those decedents happened also to be British subjects, or that the State Department so understood him, it is clear enough that the draftsmen in 1899 must have been unaware of Frederickson.
49
It is also conceivable that the drafters of the 1923 treaty thought that Frederickson was inapplicable to that treaty. Because the article of the Wurttemburg treaty dealing with realty was not brought to the attention of the Frederickson Court, the Frederickson decision was based largely upon he Court's understanding that
50
'The case of a citizen or subject of the respective countries residing at home, and disposing of property there in favor of a citizen or subject of the other, was not in the contemplation of the contracting Powers, and is not embraced in this article of the treaty.' 23 How., at 447—448.
51
Hence, the drafters of the 1923 treaty might have assumed that Frederickson was not applicable to that treaty, in which the inclusion of the realty provision made it clear that the parties did consider the case of a citizen dying in his own country. In view of these indications that the draftsmen of the 1923 treaty very likely did not intend that the words of the treaty should bear the meaning given them in Frederickson, it seems to me that the Court in Clark v. Allen erred in holding the question foreclosed. Accordingly, a de novo inquiry into the meaning of the treaty seems entirely appropriate.
III.
52
The language of Article IV of the 1923 treaty with Germany, which was quoted earlier, is based upon Article X of the treaty of 1785 with Prussia.10 Article X provided:
53
'The citizens or subjects of each party shall have power to dispose of their personal goods within the jurisdiction of the other, by testament, donation or otherwise; and their representatives, being subjects or citizens of the other party, shall succeed to their said personal goods * * * and dispose of the same at their will, paying such dues only as the inhabitants of the country wherein the said goods are, shall be subject to pay in like cases. * * * And where, on the death of any person holding real estate within the territories of the one party, such real estate would by the laws of the land descend on a citizen or subject of the other, were he not disqualified by alienage, such subject shall be allowed a reasonable time to sell the same, and to withdraw the proceeds without molestation, and exempt from all rights of detraction on the part of the government of the respective states.'
54
This part of the treaty with Prussia was in turn founded upon earlier treaties with France, the Netherlands, and Sweden.11 The treaty of 1778 with France specifically freed American citizens from the burdens of two restrictions of the right of aliens to dispose of or inherit property which were then common in the civil law countries: the droit d'aubaine and the droit de de traction. The droit d'aubaine was the feudal right of the sovereign to appropriate the property of an alien who died within the realm; an aspect of this doctrine was 'the complementary incapacity of an alien to inherit, even from a citizen.' Nielsen v. Johnson, 279 U.S. 47, 55, 49 S.Ct. 223, 225, 73 L.Ed. 607 n. 2.12 The droit d'aubaine was replaced during the 18th century by the droit de de traction, a tax 'imposed on the right of an alien to (inherit) * * * the property of persons dying within the realm,' Nielsen v. Johnson, supra, at 56, 49 S.Ct., at 225 n. 2, and levied upon the removal of the inherited property by the alien from the decedent's country.13
55
The 1782 treaty with the Netherlands and the 1783 treaty with Sweden were framed more generally. They provided that:
56
'The subjects of the contracting parties in the respective states, may freely dispose of their goods and effects either by testament, donation or otherwise, in favour of such persons as they think proper; and their heirs in whatever place they shall reside, shall receive the succession * * *.'14
57
The 1785 treaty with Prussia, which is substantially identical to the 1923 treaty, differed from the earlier treaties in two important respects. For one thing, it dealt separately with realty and with personalty.15 This separate treatment stemmed from the fact that at common law aliens could freely inherit personalty but could not succeed to realty.16 The Continental Congress, apparently fearing that under the Articles of Confederation it lacked power thus to alter the laws of the States, instructed the Commissioners who negotiated the treaty '(t)hat no rights be stipulated for aliens to hold real property within these States, this being utterly inadmissible by their several laws and policy,' but that a person who would inherit personalty but for his alienage should be permitted to sell the property and withdraw the proceeds within a reasonable time.17
58
The other important difference was that the provision of the Prussian treaty dealing with the disposal and inheritance of personalty, though generally based upon the corresponding language in the Dutch and Swedish treaties, was altered by the addition of the phrase 'within the jurisdiction of the other,' so as to read:
59
'The citizens or subjects of each party shall have power to dispose of their personal goods within the jurisdiction of the other, by testament, donation or otherwise; and their representatives, being subjects or citizens of the other party, shall succeed to their said personal goods * * * and dispose of the same at their will, paying such dues only as the inhabitants of the country wherein the said goods are, shall be subject to pay in like cases. * * *' (Emphasis added.) There is no precise indication why this phrase was added. Its function seems to have been to define more clearly than the earlier treaties the cases in which disposition of property required protection from the droit d'aubaine, namely those instances when property was disposed of in a country other than that of the citizenship of the owner. Under this construction, the phrase would modify the word 'dispose' rather than the words 'personal goods' (or 'personal proerty' in the 1923 treaty). The right of succession would be unaffected, since the words 'said personal goods' (or 'such personal property' in the 1923 treaty) would refer to all 'personal goods' (or to 'personal property of every kind' in the 1923 treaty) and not merely to those personal goods within the territory of the other party to the treaty.
60
Several factors point to the conclusion that this construction is correct, and that the phrase 'within the jurisdiction of the other' was not intended to modify the words 'personal goods' and thereby to limit the right of succession. The addition of the phrase 'within the jurisdiction of the other' was unrelated to the problem of freeing rights of succession from the droit de de traction, since that exaction was imposed upon succession by an alien to the property of any person dying within the realm, regardless of the citizzenship of the decedent. The phrase therefore cannot have been intended to modify the right of succession in order to enlarge or contract this freedom.
61
Moreover, the terms of the newly added real property clause affirmatively indicate that the 'personal goods' clause of the 1785 treaty (and therefore the 'personal property' clause of the 1923 treaty) was intended to confer the right to inherit personal property from both alien and citizen decedents. The first draft of the 1785 treaty was substantially similar to the earlier Dutch and Swedish treaties, and quite clearly would have permitted aliens to succeed to real or personal proerty regardless of whether the decedent died in his own country.18 However, as noted earlier, the Continental Congress out of caution instructed the Commissioners that aliens should not be allowed by the treaty to succeed to and hold real estate but should be limited to sale of the land and removal of the proceeds. This indicates that the real estate clause was intended purely as a limitation on the rights accorded with respect to personal property and was not supposed to confer any greater rights. The real property clause certainly permitted inheritance from both alien and citizen, for it allowed succession 'on the death of any person holding real estate.' This was acknowledged by the Court in Clark v. Allen, supra, 331 U.S. at 517, 67 S.Ct. at 1439, with respect to the 1923 treaty. It would seem to follow that the more liberal personal property clause was also intended to allow inheritance regardless of the decedent's nationality.
62
The conclusion that the personal property clause of the 1785 (and hence of the 1923) treaty was intended to grant a right of inheritance no matter what the decedent's citizenship finds additional support in the State Department's interpretations of similar treaty provisions during the 19th century. When negotiating substantially identical provisions in treaties with German states in the 1840's, the then Minister to Prussia, Mr. Wheaton, indicated his belief that the proposed treaties would protect 'naturalized Germans, resident in the U(nited) States, who are entitled to inherit the property of their relations deceased in Germany.'19 There was no suggestion that the treaties would apply only to real property or, with respect to personal property, only to the small class of naturalized Germans whose 'relations' in Germany happened also to be American citizens. In responding to Mr. Wheaton, the State Department instructed him to take as his 'general guide' the treaty with Prussia and others similarly worded, and instructed him that the object should be 'the removal of all obstructions * * * to the withdrawal from the one country, by the citizens or subjects of the other, of any property which may have been transferred to them by * * * will,—or which they may have inherited ab intestato.'20
63
Later in the century, after the Frederickson decision, the State Department several times indicated that it regarded similarly worded treaties as assuring citizens of one country the right to inherit personal property of citizens of the other dying in their own country. In 1868 and 1880 the Department asserted, under a similarly worded treaty,21 the right of American citizens to inherit personal property of Swiss decedents who died in Switzerland.22 In 1877, it took the same position with respect to the rights of Russian heirs to inherit the personal property of American decedents under a like treaty with Russia.23 The negotiations leading to the British treaty of 1899, which have previously been described, reveal the same attitude.
64
This course of history, coupled with the general principle that 'where a provision of a treaty fairly admits of two constructions, one restricting, the other enlarging rights which may be claimed under it, the more liberal interpretation is to be preferred,'24 leads in my opinion to the conclusion that Article IV of the 1923 treaty should be construed as guaranteeing to citizens of the contracting parties the rights to inherit personal property from a decedent who dies in his own country. I would overrule Frederickson v. State of Louisiana, supra, and Clark v. Allen, supra, insofar as they hold the contrary. Considerations of stare decisis should not stand in the way of rectifying two decisions that rest on such infirm foundations. Compare Swift & Co., Inc. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194, with Kesler v. Department of Public Safety, 369 U.S. 153, 82 S.Ct. 807, 7 L.Ed.2d 641. Properly construed, the 1923 treaty, which of course takes precedence over the Oregon statute under the Supremacy Clause, entitles the appellants in this case to succeed to the personal as well as the real property of the decedent despite the state statute.
IV.
65
Upon my view of this case, it would be unnecessary to reach the issue whether Oregon's statute governing inheritance by aliens amounts to an unconstitutional infringement upon the foreign relations power of the Federal Government. However, since this is the basis upon which the Court has chosen to rest its decision, I feel that I should indicate briefly why I believe the decision to be wrong on that score, too.
66
As noted earlier, the Oregon statute conditions an alien's right to inherit Oregon property upon the satisfaction of three conditions: (1) a reciprocal right of Americans to inherit property in the alien's country; (2) the right of Americans to receive payment in the alien's country; and (3) proof that the alien heirs of the Oregon decedent would receive the benefit, use, and control of their inheritance without confiscation. In Clark v. Allen, supra, the Court upheld the constitutionality of a California statute which similarly conditioned the right of aliens to inherit upon reciprocity but did not contain the other two restrictions. The Court in Clark dismissed as 'farfetched' the contention that the statute unconstitutionally infringed upon the federal foreign relations power. See 331 U.S., at 517, 67 S.Ct., at 1439. The Court noted that California had not violated any express command of the Constitution by entering into a treaty, agreement, or compact with foreign countries. It said that '(w) hat California has done will have some incidental or indirect effect in foreign countries. But that is true of many state laws which none would claim cross the forbidden line.' Ibid.
67
It seems to me impossible to distinguish the present case from Clark v. Allen in this respect in any convincing way. To say that the additional conditions imposed by the Oregon statute amount to such distinctions would be to suggest that while a State may legitimately place inheritance by aliens on a reciprocity basis, it may not take measures to assure that reciprocity exists in practice and that the inheritance will actually be enjoyed by the person whom the testator intended to benefit. The years since the Clark decision have revealed some instances in which state court judges have delivered intemperate or ill-advised remarks about foreign governments in the course of applying such statutes, but nothing has occurred which could not readily have been foreseen at the time Clark v. Allen was decided.
68
Nor do I believe that this aspect of the Clark v. Allen decision should be overruled, as my Brother STEWART would have it. Prior decisions have established that in the absence of a conflicting federal policy or violation of the express mandates of the Constitution the States may legislate in areas of their traditional competence even though their statutes may have an incidental effect on foreign relations.25 Application of this rule to the case before us compels the conclusion that the Oregon statute is constitutional. Oregon has so legislated in the course of regulating the descent and distribution of estates of Oregon decedents, a matter traditionally within the power of a State. See ante, at 440. Apart from the 1923 treaty, which the Court finds it unnecessary to consider, there is no specific interest of the Federal Government which might be interfered with by this statute. The appellants concede that Oregon might deny inheritance rights to all nonresident aliens.26 Assuming that this is so, the statutory exception permitting inheritance by aliens whose countries permit Americans to inherit would seem to be a measure wisely designed to avoid any offense to foreign governments and thus any conflict with general federal interests: a foreign government can hardly object to the denial of rights which it does not itself accord to the citizens of other countries.
69
The foregoing would seem to establish that the Oregon statute is not unconstitutional on its face. And in fact the Court seems to have found the statute unconstitutional only as applied. Its notion appears to be that application of the parts of the statute which require that reciprocity actually exist and that the alien heir actually be able to enjoy his inheritance will inevitably involve the state courts in evaluations of foreign laws and governmental policies, and that this is likely to result in offense to foreign governments. There are several defects in this rationale. The most glaring is that it is based almost entirely on speculation. My Brother DOUGLAS does cite a few unfortunate remarks made by state court judges in applying statutes resembling the one before us. However, the Court does not mention, nor does the record reveal, any instance in which such an occurrence has been the occasion for a diplomatic protest, or, indeed, has had any foreign relations consequence whatsoever.27 The United States says in its brief as amicus curiae that it
70
'does not * * * contend that the application of the Oregon escheat statute in the circumstances of this case unduly interferes with the United States' conduct of foreign relations.'28
71
At an earlier stage in this case, the Solicitor General told this Court:
72
'The Department of State has advised us * * * that State reciprocity laws, including that of Oregon, have had little effect on the foreign relations and policy of this country. * * * Appellants' apprehension of a deterioration in international relations, unsubstantiated by experience, does not constitute the kind of 'changed conditions' which might call for re-examination of Clark v. Allen.'29
73
Essentially, the Court's basis for decision appears to be that alien inheritance laws afford state court judges an opportunity to criticize in dictum the policies of foreign governments, and that these dicta may adversely affect our foreign relations. In addition to finding no evidence of adverse effect in the record, I believe this rationale to be untenable because logically it would apply to many other types of litigation which come before the state courts. It is true that, in addition to the many state court judges who have applied alien inheritance statutes with proper judicial decorum,30 some judges have seized the opportunity to make derogatory remarks about foreign governments. However, judges have been known to utter dicta critical of foreign governmental policies even in purely domestic cases, so that the mere possibility of offensive utterances can hardly be the test.
74
If the flaw in the statute is said to be that it requires state courts to inquire into the administration of foreign law, I would suggest that that characteristic is shared by other legal rules which I cannot believe the Court wishes to invalidate. For example, the Uniform Foreign Money-Judgments Recognition Act provides that a foreign-country money judgment shall not be recognized if it 'was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law.'31 When there is a dispute as to the content of foreign law, the court is required under the common law to treat the question as one of fact and to consider any evidence presented as to the actual administration of the foreign legal system.32 And in the field of choice of law there is a nonstatutory rule that the tort law of a foreign country will not be applied if that country is shown to be 'uncivilized.'33 Surely, all of these rules possess the same 'defect' as the statute now before us. Yet I assume that the Court would not find them unconstitutional.
75
I therefore concur in the judgment of the Court upon the sole ground that the application of the Oregon statute in this case conflicts with the 1923 Treaty of Friendship, Commerce and Consular Rights with Germany.
76
Mr. Justice WHITE, dissenting.
77
I would affirm the judgment below. Generally for the reasons stated by Mr. Justice HARLAN in Part IV of his separate opinion, I do not consider the Oregon statute to be an impermissible interference with foreign affairs. Nor am I persuaded that the Court's construction of the 1923 treaty in Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431 (1947), and of similar treaty language in earlier cases should be overruled at this late date.
1
'(1) The right of an alien not residing within the United States or its territories to take either real or personal property or the proceeds thereof in this state by succession or testamentary disposition, upon the same terms and conditions as inhabitants and citizens of the United States, is dependent in each case:
'(a) Upon the existence of a reciprocal right upon the part of citizens of the United States to take real and personal property and the proceeds thereof upon the same terms and conditions as inhabitants and citizens of the country of which such alien is an inhabitant or citizen;
'(b) Upon the rights of citizens of the United States to receive by payment to them within the United States or its territories money originating from the estates of persons dying within such foreign country; and
'(c) Upon proof that such foreign heirs, distributees, devisees or legatees may receive the benefit, use or control of money or property from estates of persons dying in this state without confiscation, in whole or in part, by the governments of such foreign countries.
'(2) The burden is upon such nonresident alien to establish the fact of existence of the reciprocal rights set forth in subsection (1) of this section.
'(3) If such reciprocal rights are not found to exist and if no heir, devisee or legatee other than such alien is found eligible to take such property, the property shall be disposed of as escheated property.'
2
Article IV provides:
'Where, on the death of any person holding real or other immovable property or interests therein within the territories of one High Contracting Party, such property or interests therein would, by the laws of the country or by a testamentary disposition, descend or pass to a national of the other High Contracting Party, whether resident of non-resident, were he not disqualified by the laws of the country where such property or interests therein is or are situated, such national shall be allowed a term of three years in which to sell the same, this term to be reasonably prolonged if circumstances render it necessary, and withdraw the proceeds thereof, without restraint or interference, and exempt from any succession, probate or administrative duties or charges other than those which may be imposed in like cases upon the nationals of the country from which such proceeds may be drawn.
'Nationals of either High Contracting Party may have full power to dispose of their personal property of every kind within the territories of the other, by testament, donation, or otherwise, and their heirs, legatees and donees, of whatsoever nationality, whether resident or non-resident, shall succeed to such personal property, and may take possession thereof, either by themselves or by others acting for them, and retain or dispose of the same at their pleasure subject to the payment of such duties or charges only as the nationals of the High Contracting Party within whose territories such property may be or belong shall be liable to pay in like cases.'
3
Supra, n. 1.
4
Ore.Comp.L.Ann. § 61—107 (1940).
5
In Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, the District Court had held the California reciprocity statute unconstitutional because of legislative history indicating that the purpose of the statute was to prevent American assets from reaching hostile nations preparing for was on this country. Crowley v. Allen, 52 F.Supp. 850, 853 (D.C.N.D.Calif.). But when the case reached this Court, petitioner contended that the statute was invalid, not because of the legislature's motive, but because on its face the statute constituted 'an invasion of the exclusively Federal field of control over our foreign relations.' In discussing how the statute was applied, petitioner noted that a California court had accepted as conclusive proof of reciprocity the statement of a foreign ambassador that reciprocal rights existed in his nation. Brief for petitioner in Clark v. Allen, No. 626, October Term 1946, pp. 73—74. Thus we had no reason to suspect that the California statute in Clark v. Allen was to be applied as anything other than a general reciprocity provision requiring just matching of laws. Had we been reviewing the later California decision of Estate of Gogabashvele, 195 Cal.App.2d 503, 16 Cal.Rptr. 77, see n. 6 infra, the additional problems we now find with the Oregon provision would have been presented.
6
See Estate of Gogabashvele, 195 Cal.App.2d 503, 16 Cal.Rptr. 77, disapproved in Estate of Larkin, 65 Cal.2d 60, 52 Cal.Rptr. 441, 416 P.2d 473, and Estate of Chichernea, Cal., 57 Cal.Rptr. 135, 424 P.2d 687. One commentator has described the Gogabashvele decision in the following manner:
'The court analyzed the general nature of rights in the Soviet system instead of examining whether Russian inheritance rights were granted equally to aliens and residents. The court found Russia had no separation of powers, too much control in the hands of the Communist Party, no independent judiciary, confused legislation, unpublished statutes, and unrepealed obsolete statutes. Before stating its holding of no reciprocity, the court also noted Stalin's crimes, the Beria trial, the doctrine of crime by analogy, Soviet xenophobia, and demonstrations at the American Embassy in Moscow unhindered by the police. The court concluded that a leading Soviet jurist's construction of article 8 of the law enacting the R.S.F.S.R. Civil Code seemed modeled after Humpty Dumpty, who said, 'When I use a word * * *, it means just what I choose it to mean—neither more nor less." Note, 55 Calif.L.Rev. 592, 594—595, n. 10 (1967).
7
The Rogers case, we are advised, prompted the Government of Bulgaria to register a complaint with the State Department, as disclosed by a letter of November 20, 1967, written by a State Department adviser to the Oregon trial court stating: 'The Government of Bulgaria has raised with this Government the matter of difficulties reportedly being encountered by Bulgarian citizens resident in Bulgaria in obtaining the transfer to them of property or funds from estates probated in this country, some under the jurisdiction of the State of Oregon. * * *'
8
Such attitudes are not confined to the Oregon courts. Representative samples from other States would include statements in the New York courts, such as 'This court would consider sending money out of this country and into Hungary tantamount to putting funds within the grasp of the Communists,' and 'If this money were turned over to the Russian authorities, it would be used to kill our boys and innocent people in Southeast Asia. * * *' Heyman, The Nonresident Alien's Right to Succession Under the 'Iron Curtain Rule,' 52 Nw.U.L.Rev. 221, 234 (1957). In Pennsylvania, a judge stated at the trial of a case involving a Soviet claimant that 'If you want to say that I'm prejudiced, you can, because when it comes to Communism I'm a bigoted anti-Communist.' And another judge exclaimed, 'I am not going to send money to Russia where it can go into making bullets which may one day be used against my son.' A California judge, upon being asked if he would hear argument on the law, replied, 'No, I won't send any money to Russia.' The judge took 'judicial notice that Russia kicks the United States in the teeth all the time,' and told counsel for the Soviet claimant that 'I would think your firm would feel it honor bound to withdraw as representing the Russian government. No American can make it too strong.' Berman, Soviet Heirs in American Courts, 62 Col.L.Rev. 257, and n. 3 (1962).
A particularly pointed attack was made by Judge Musmanno of the Pennsylvania Supreme Court, where he stated with respect to the Pennsylvania Act that:
'It is a commendable and salutary piece of legislation because it provides for the safekeeping of these funds even with accruing
interest, in the steelbound vaults of the Commonwealth of Pennsylvania until such time as the Iron Curtain lifts or sufficiently cracks to allow honest money to pass through and be honestly delivered to the persons entitled to them. Otherwise, wages and other monetary rewards faithfully earned under a free enterprise democratic system could be used by Communist forces which are committed to the very destruction of that free enterprising world of democracy.' Belemecich's Estate, 411 Pa. 506, 508, 192 A.2d 740, 741, rev'd sub nom. Consul General of Yugoslavia at Pittsburgh v. Pennsylvania, 375 U.S. 395, 84 S.Ct. 452, 11 L.Ed.2d 411, on authority of Kolovrat v. Oregon, 366 U.S. 187, 81 S.Ct. 922.
And further:
'* * * Yugoslavia, as the Court below found, is a satellite state where the residents have no individualistic control over their destiny, fate or pocket-books, and where their politico-economic horizon is raised or lowered according to the will, wish or whim of a self-made dictator.' Id., 411 Pa., at 509, 192 A.2d, at 742.
'All the known facts of a Sovietized state lead to the irresistible conclusion that sending American money to a person within the borders of an Iron Curtain country is like sending a basket of food to Little Red Ridinghood in care of her 'grandmother.' It could be that the greedy, gluttonous grasp of the government collector in Yugoslavia does not clutch as rapaciously as his brother confiscators in Russia, but it is abundantly clear that there is no assurance upon which an American court can depend that a named Yugoslavian individual beneficiary of American dollars with have anything left to shelter, clothe and feed himself once he has paid financial involuntary tribute to the tyranny of a totalitarian regime.' Id., at 511, 192 A.2d, at 742 743.
Another example is a concurring opinion by Justice Doyle in In re Hosova's Estate, 143 Mont. 74, 387 P.2d 305:
'In this year of 1963, the Central Committee of the Communist Party of the U.S.S.R. issued the following directive to all of its members, 'We fully stand for the destruction of imperialism and capitalism. We not only believe in the inevitable destruction of
capitalism, but also are doing everything for this to be accomplished by way of the class struggle, and as soon as possible.'
'Hence, in affirming this decision the writer is knowingly contributing financial and to a Communist monolithic satellite, fanatically dedicated to the abolishing of the freedom and liberty of the citizens of this nation.
'By reason of self-hypnosis and failure to understand the aims and objective of the international Communist conspiracy, in the year 1946, Montana did not have statutes to estop us from making cash contributions to our own ultimate destruction as a free nation.' Id., at 85—86, 387 P.2d, at 311.
9
In Mullart v. State by and through State Land Board, 222 Or. 463, 353 P.2d 531, the court had little difficulty finding that reciprocity existed with Estonia. But it took pains to observe that in 1941 Russia 'moved in and overwhelmed it (Estonia) with its military might. At the same time the Soviet hastily and cruelly deported about 60,000 of its people to Russia and Siberia and, in addition, exterminated many of its elderly residents. This policy of destroying or decimating families and rendering normal economic life chaotic continued long afterward.' Id., at 467, 353 P.2d, at 534.
'(A)ny effort to communicate with persons in Estonia exposes such persons to possible death or exile to Siberia. It seems that the Russians scrutinize all correspondence from friends of Estonians in lands where freedom prevails and subject the recipient to suspicion of a relationship inimical to the Soviet. * * * This line of testimony has the support of reliable historical matter of which we take notice. We mention it as explaining the futility of attempting, under the circumstances, to secure more cogent evidence than hearsay in the matter.' Id., at 476, 353 P.2d, at 537—538.
10
See Berman, Soviet Heirs in American Courts, 62 Col.L.Rev. 257 (1962); Chaitkin, The Rights of Residents of Russia and its Satellites to Share in Estates of American Decedents, 25 S.Cal.L.Rev. 297 (1952).
1
Dec. 8, 1923, 44 Stat. 2132, T.S.No. 725.
2
See, e.g., Giles v. State of Maryland, 386 U.S. 66, 80—81, 87 S.Ct. 793, 800, 17 L.Ed.2d 737; Hamm v. City of Rock Hill, 379 U.S. 306, 316, 85 S.Ct. 384, 391, 13 L.Ed.2d 300; Bell v. State of Maryland, 378 U.S. 226, 237, 84 S.Ct. 1814, 1820, 12 L.Ed.2d 822; Communist Party of United States of America v. Catherwood, 367 U.S. 389, 392, 81 S.Ct. 1465, 1467, 6 L.Ed.2d 919; Poe v. Ullman, 367 U.S. 497, 503, 81 S.Ct. 1752, 1755, 6 L.Ed.2d 989; International Ass'n of Machinists v. Street, 367 U.S. 740, 749, 81 S.Ct. 1784, 1789, 6 L.Ed.2d 1141.
3
See also Alma Motor Co. v. Timken Co., 329 U.S. 129, 136 137, 67 S.Ct. 231, 233—234, 91 L.Ed. 128.
4
It is true, of course, that the treaty would displace the Oregon statute only by virtue of the Supremacy Clause of the Constitution. Yet I think it plain that this fact does not render inapplicable the teachings of Ashwander. Disposition of the case pursuant to the treaty would involve no interpretation of the Constitution, and this is what the Ashwander rules seek to bring about. Cf. Swift & Co., Inc. v. Wickham, 382 U.S. 111, 126—127, 86 S.Ct. 258, 15 L.Ed.2d 194.
5
Petersen v. State of Iowa, 245 U.S. 170, 38 S.Ct. 109, 62 L.Ed. 225; Duus v. Brown, 245 U.S. 176, 38 S.Ct. 111, 62 L.Ed. 228; Skarderud v. Tax Commission of State of North Dakota, 245 U.S. 633, 38 S.Ct. 133, 62 L.Ed. 522.
'The construction adopted by those cases is to say the least, permissible when the syntax of the sentences dealing with realty and personalty is considered. So far as realty is concerned, the testator includes 'any person'; and the property covered is that within the territory of either of the high contracting parties. In case of personalty, the provision governs the right of 'nationals' of either contracting party to dispose of their property within
6
The statute appears in the majority opinion in n. 1, ante, at 430.
7
The appellees argue that a substantial part of the 1923 treaty has been terminated or abrogated by the 1954 Treaty of Friendship, Commerce and Navigation with the Federal Republic of Germany, 7 U.S.T. 1839, T.I.A.S. No. 3593. However, Article XXVI of the 1954 treaty specifies that it extends only to 'all areas of land and water under the sovereignty or authority of' the Federal Republic of Germany, and to West Berlin. The United States does not challenge the holding of the Oregon Supreme Court that the 1923 treaty still applies to East Germany. See Brief for the United States as amicus curiae 6, n. 5.
8
125 Notes from Great Britain, Sept. 24, 1895, MSS., Nat. Archives.
9
Treaty of March 2, 1899, with Great Britain, 31 Stat. 1939.
10
July, Aug., Sept., 1785, 8 Stat. 88.
11
See Art. XI, Treaty of Feb. 6, 1778, with France, 8 Stat. 18; Art. VI, Treaty of Oct. 8, 1782, with the Netherlands, 8 Stat. 36; Art. VI, Treaty of April 3, 1783, with Sweden, 8 Stat. 64.
12
See also 3 Vattel, The Law of Nations or the Principles of Natural Law § 112, at 147—148 (1916 ed.); Wheaton, Elements of International Law § 82, at 115—116 (1866 ed.).
13
See Borchard, Diplomatic Protection of Citizens Abroad § 39, at 88 (1916 ed.); 4 Miller, Treaties and other International Acts of the United States of America 547 (1934).
14
The quotation is from the Swedish treaty. The wording of the Dutch treaty differs only slightly.
15
The earlier treaties used the words 'effects' and 'goods,' which have been held to include realty. Todok v. Union State Bank of Harvard, Neb., 281 U.S. 449, 454, 50 S.Ct. 363, 365, 74 L.Ed. 956.
16
See 1 Blackstone, Commentaries 372; 2 Kent, Commentaries 61—63.
17
See XXVI Journals of the Continental Congress 357, 360 361.
18
See 2 Diplomatic Correspondence of the United States 1783 1789, at 111, 116—117.
19
Despatch, Wheaton to Legare, June 14, 1843, 3 Despatches, Prussia, No. 226, MSS., Nat. Archives; see 4 Miller Treaties and other International Acts of the United States of America 547—548 (1934).
20
4 Miller, supra, at 546, 548.
21
Treaty of Nov. 25, 1850, with Switzerland, 11 Stat. 587, 590.
22
See Diplomatic Correspondence of the United States, 1868, Pt. II, 194, 196—197; Foreign Relations of the United States, 1880, 952—953.
23
See 4 Moore, Digest of International Law 6 (1906). The treaty was the Treaty of Dec. 18, 1832, with Russia, 8 Stat. 444.
24
Bacardi Corp. of America v. Domenech, 311 U.S. 150, 163, 61 S.Ct. 219, 226, 85 L.Ed. 98, citing Jordan v. Tashiro, 278 U.S. 123, 127, 49 S.Ct. 47, 48, 73 L.Ed. 214; Nielsen v. Johnson, 279 U.S. 47, 52, 49 S.Ct. 223, 224, 73 L.Ed. 607.
the United States from the estates of decedents dying in
25
See, e.g., State of Ohio ex rel. Clarke v. Deckebach, 274 U.S. 392, 47 S.Ct. 630, 71 L.Ed. 1115; Frick v. Webb, 263 U.S. 326, 44 S.Ct. 115, 68 L.Ed. 323; Webb v. O'Brien, 263 U.S. 313, 44 S.Ct. 112, 68 L.Ed. 318; Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255; Heim v. McCall, 239 U.S. 175, 36 S.Ct. 78, 60 L.Ed. 206.
26
Brief for Appellants 13. Thus, this case does not present the question whether a uniform denial of rights to nonresident aliens might be a denial of equal protection forbidden by the Fourteenth Amendment. Cf. Blake v. McClung, 172 U.S. 239, 260—261, 19 S.Ct. 165, 173, 43 L.Ed. 432.
27
The communication from the Bulgarian Government mentioned in the majority opinion in n. 7, ante, at 437, apparently refers not to intemperate comments by state-court judges but to the very existence of state statutes which result in the denial of inheritance rights to Bulgarians.
28
Brief for the United States as amicus curiae 6, n. 5.
29
Memorandum for the United States 5.
30
See, e.g., Estate of Larkin, 65 Cal.2d 60, 52 Cal.Rptr. 441, 416 P.2d 473.
31
Uniform Foreign Money-Judgments Recognition Act § 4(a)(1), 9B Unif. Laws Ann. 67.
32
See Generally Schlesinger, Comparative Law 31—143 (2d ed.1959).
33
See Slater v. Mexican National R. Co., 194 U.S. 120, 129, 24 S.Ct. 581, 584, 48 L.Ed. 900 (Holmes, J.); American Banana Co. v. United Fruit Co., 213 U.S. 347, 355—356, 29 S.Ct. 511, 512, 53 L.Ed. 826 (Holmes, J.); Cuba R. Co. v. Crosby, 222 U.S. 473, 478, 32 S.Ct. 132, 56 L.Ed. 274 (Holmes, J.); Walton v. Arabian American Oil Co., 2 Cir., 233 F.2d 541, 545.
| 910
|
390 U.S. 1
88 S.Ct. 651
19 L.Ed.2d 787
Edward J. HARDIN, as Mayor of Tazewell, Tennessee et al., Petitioners,v.KENTUCKY UTILITIES COMPANY. POWELL VALLEY ELECTRIC CO-OPERATIVE, Petitioner, v. KENTUCKY UTILITIES COMPANY. TENNESSEE VALLEY AUTHORITY, Petitioner, v. KENTUCKY UTILITIES COMPANY.
Nos. 40, 50, 51.
Argued Dec. 13, 1967.
Decided Jan. 16, 1968.
Robert H. Marquis, Knoxville, Tenn., and William R. Stanifer, Tazewell, Tenn., for petitioners.
Malcolm Y. Marshall, Louisville, Ky., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
The question for decision in these cases is whether Congress has prohibited the Tennessee Valley Authority from competing in the sale of electricity with respondent, the Kentucky Utilities Company, in two small villages in Claiborne County, Tennessee, and in a narrow corridor between the two villages and the Tennessee-Kentucky state boundary 16 miles away. By § 15d of the Tennessee Valley Authority Act of 1933, as added by the 1959 amendments to that Act, Congress barred the TVA from expanding its sales outside 'the area for which the Corporation (TVA) or its distributors were the primary source of power supply on July 1, 1957,'1 and our problem is therefore the narrow one of deciding whether these villages and the narrow corridor are part of an 'area' for which TVA was the primary source of power on the crucial date. The difficulty lies in determining the location and extent of the 'area' to which the statute refers. In June 1957, TVA supplied 62% of the power used in all of Claiborne County, and therefore if the entire county is an 'area' within the meaning of the statute, TVA would have been the 'primary' source of power, and its expansion into the two villages would be permissible. On the other hand, in the villages themselves, TVA supplied only 6% of the power in June 1957, while respondent supplied 94%; thus if the two villages either alone or with the corridor constitute an 'area,' TVA would not have been the primary source of power, and it would be barred by § 15d from expanding into that area.
2
The question of statutory interpretation now before us arose in this way. TVA is the major supplier of electric power in Tennessee and in many adjoining areas of Alabama, Mississippi, Georgia, Virginia, and Kentucky. Respondent, whose service area is centered in Kentucky, has long served customers in Tazewell and New Tazewell, the two villages within 16 miles of the Kentucky border in Claiborne County, Tennessee. The power lines of TVA distributors also crisscross Claiborne County, and TVA has therefore been able to serve a small number of customers in the two villages, even though respondent was the predominant source of power. Because Kentucky Utilities' retail rates for electricity in the two villages were approximately 2 1/2 times higher for typical consumers than the rates for TVA power,2 the value of residential and commercial properties served by TVA was substantially and uniformly higher than the value of similar properties served by respondent. This rate disparity created a seething discontent among residential and industrial consumers in the villages. Pointing out that they lived in the very heart of the TVA watershed and in immediate proximity to TVA's large Norris Lake, these citizens contended that it was wholly unjust and inequitable to deny them the benefits and advantages of cheap TVA power. After complaints, planning, and consultations over a period of more than three years, the local governments engaged a contractor to build the facilities necessary to establish a municipal system linked to TVA's cheap power. Kentucky Utilities' customers immediately began to discontinue their service and become customers of the municipal system.
3
Kentucky Utilities then filed this suit against TVA, the mayors of the two Tazewells, and the Powell Valley Electric Cooperative, a TVA distributor, charging them with conspiracy to destroy its Tazewell business and asking the court to enjoin TVA from supplying power to the new municipal system in alleged violation of § 15d. The District Court upheld the determination of the TVA Board of Directors that the two Tazewells were within TVA's primary service 'area' and dismissed the case, 237 F.Supp. 502 (1964), but the Court of Appeals reversed, holding that the two villages plus the corridor constituted an 'area' and that TVA accordingly was barred from extending its service in the Tazewells. 375 F.2d 403 (1966). We granted certiorari, 386 U.S. 980, 87 S.Ct. 1284, 18 L.Ed.2d 228 (1967), to resolve this important question in the administration of the TVA Act. We reverse and agree with the District Court that the TVA Board properly determined the relevant service 'area' to extend beyond the two Tazewells and to include the entire county. TVA, as the primary power source within this area, could therefore properly make its low-cost power available to consumers in this entire county area including the two villages.
I.
4
Before discussing the merits, we shall briefly consider petitioners' contention that the Kentucky Utilities Company lacks standing to challenge the legality of TVA's activities. We agree with both the courts below that this contention is without merit. This Court has, it is true, repeatedly held that the economic injury which results from lawful competition cannot, in and of itself, confer standing on the injured business to question the legality of any aspect of its competitor's operations. Railroad Co. v. Ellerman, 105 U.S. 166, 26 L.Ed. 1015 (1882); Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374 (1938); Tennessee Power Co. v. TVA, 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543 (1939); Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108 (1940). But competitive injury provided no basis for standing in the above-cases simply because the statutory and constitutional requirements that the plaintiff sought to enforce were in no way concerned with protecting against competitive injury. In contrast, it has been the rule, at least since the Chicago Junction Case, 264 U.S. 258, 44 S.Ct. 317, 68 L.Ed. 667 (1924), that when the particular statutory provision invoked does reflect a legislative purpose to protect a competitive interest, the injured competitor has standing to require compliance with that provision. See Alton R. Co. v. United States, 315 U.S. 15, 19, 62 S.Ct. 432, 435, 86 L.Ed. 586 (1942); City of Chicago v. Atchison, T. & S.F.R. Co., 357 U.S. 77, 83, 78 S.Ct. 1063, 1066, 2 L.Ed.2d 1174 (1958).
5
Petitioners concede, as of course they must, that one of the primary purposes of the area limitations in § 15d of the Act was to protect private utilities from TVA competition. This is evident from the provision itself and is amply supported by its legislative history. The provision grew out of TVA's efforts to find some way to meet the cost of new facilities without dependence upon annual appropriations from Congress. In 1955 TVA began to seek authority to issue bonds to finance these expenditures. Although TVA spokesmen assured Congress that the objective was not territorial expansion but only improvement of facilities in TVA's existing service area, many members of Congress were apprehensive and thought that if congressional budgetary control was to be weakened, some substitute to prevent territorial expansion should be found. A series of bills to give TVA borrowing power failed to pass.3 Several bills were then introduced combining the grant of borrowing power with various provisions to prohibit territorial expansion,4 and one of these bills was eventually enacted as the TVA amendments of 1959. Although discussions of the teritorial limitation mentioned a number of policy reasons for the restriction,5 it is clear and undisputed that protection of private utilities from TVA competition was almost universally regarded as the primary objective of the limitation.6 Since respondent is thus in the class which § 15d is designed to protect, it has standing under familiar judicial principles to bring this suit, see Stark v. Wickard, 321 U.S. 288, 309, 64 S.Ct. 559, 570, 88 L.Ed. 733 (1944); cf. United States v. ICC, 337 U.S. 426, 433—434, 69 S.Ct. 1410, 1414—1415, 93 L.Ed. 1451 (1949), and no explicit statutory provision is necessary to confer standing.7
II.
6
Basic to our consideration of the merits of these cases is an appraisal of the significance of the TVA Board's determination that all of Claiborne County, including the two Tazewells, constituted a single 'area' in which TVA is the primary source of power. Petitioners argue that the Court of Appeals gave no weight whatever to this determination and urge that the finding should instead have been treated like an administrative interpretation by an agency or executive officer, to be set aside only if it is not properly related to the purposes of the statute. The opinion of the Court of Appeals is not altogether clear in dealing with this question, however,8 and respondent has not attempted to argue here that the Court of Appeals could have decided the matter entirely on its own, without any consideration of the TVA Board's finding. Rather, respondent appears to agree with petitioners that the determination of the TVA Board is entitled to acceptance unless it lies outside the range of permissible choices contemplated by the statute, and we think this is the proper rule. The initial determination as to the extent of the 'area' under § 15d must be made by the TVA Board in every case, since TVA is required under the Act to make power available to public bodies and cooperatives within the permissible area.9 In making this determination as to the most appropriate boundaries for its service area, the TVA Board will normally evaluate the economic an engineering aspects of providing its service to the customers in question, especially in relation to the particular topography of the affected region. Given the innate and inevitable vagueness of the 'area' concept and the complexity of the factors relevant to decision in this matter, we think it is more efficient, and thus more in line with the overall purposes of the Act, for the courts to take the TVA's 'area' determinations as their starting points and to set these determinations aside only when they lack reasonable support in relation to the statutory purpose of controlling, but not altogether prohibiting, territorial expansion. Cf. SEC v. New England Electric, 384 U.S. 176, 185, 86 S.Ct. 1397, 1402, 16 L.Ed.2d 456 (1966); Bates & Guild Co. v. Payne, 194 U.S. 106, 109 110, 24 S.Ct. 595, 597, 48 L.Ed. 894 (1904).
III.
7
Tested by this standard, we think the determination of the TVA Board with respect to Claiborne County should have been upheld by the court below. Neither the language of § 15d, its legislative history, nor any of the economic and technical circumstances of this particular locality suggest that the TVA Board's determination here exceeded the outer boundaries of choice contemplated in the Act.
8
Certainly nothing in the language of § 15d(a) itself forecloses the TVA's present decision. The second paragraph of that section reads:
9
'Nothing in this subsection shall prevent the Corporation or its distributors from supplying electric power to any customer within any area in which the Corporation or its distributors had generally established electric service on July 1, 1957, and to which electric service was not being supplied from any other source on the effective date of this Act.'
10
In light of this provision, respondent argues that even within its 'area,' TVA may not extend its services to new customers previously served by a private company. Literally, of course, this language does not establish such a rule. It simply states that when a customer is served by a private utility in this area of generally established service, an area perhaps broader than the 'area' of primary service which is controlling under the first paragraph of § 15d(a), the Act may prevent TVA from supplying the customer; other parts of the subsection must be looked to for the actual prohibition. This literal reading, moreover, is the only appropriate one in light of other provisions of the statute. The first paragraph of § 15d(a) authorizes TVA to provide power not only within its 'area' but also within an additional region 'extending not more than five miles around the periphery of such area'. This is followed by a proviso denying TVA the right to serve within this additional region any 'municipality receiving electric service from another source on or after July 1, 1957.' Since the Act makes the existence of a private supplier an explicit bar to TVA expansion only within the additional region, we cannot read the statute as also making the existence of a private supplier, in and of itself, an automatic bar to expansion in the primary service 'area.'
11
The parties have also called our attention to numerous incidents in the legislative history suggesting that Congress may have regarded the very villages involved in this case as either inside or outside of TVA's service area. Petitioners note that maps placed before the congressional committees showed the Tazewells as within TVA's primary service area. Respondent counters that one map submitted to the House Public Works Committee showed the Tazewells as within respondent's service area. In addition, respondent notes that a 'gentlemen's agreement' between TVA and neighboring private utilities had placed the Tazewells within respondent's area, and respondent refers to a number of statements indicating that various sponsors of the territorial limitations intended to enact the 'gentlemen's agreement' into law.
12
We do not find any of this information particularly helpful in resolving the question before us. The maps on which petitioners rely were large-scale representations of TVA's entire multistate system, and they were submitted to various committees for general reference. Even if all these maps had placed the Tazewells in the same area, it would be artificial in the extreme to assume that Congress actually entertained any specific intention with respect to these small villages in one tiny portion of the county, the State and the map. With respect to the 'gentlemen's agreement,' it is undeniable that many members of Congress did hope to freeze completely the existing situation by enactment of the territorial limitation. Others, the majority of the Senate Public Works Committee in particular, undoubtedly sought to include language that would authorize adjustments and permit a certain amount of elasticity in the availability of TVA service. We think it is sufficient to note, without tracing all the changes in the wording of the territorial limitation, that the language of the Act in its final form is a compromise and that the views of those who sought the most restrictive wording cannot control interpretation of the compromise version.
13
Finally, we think that apart from the structure of the Act and its legislative history, the facts of the situation in Claiborne County, in Tennessee, and in Kentucky support rather than undercut the TVA Board's determination. The parties place great stress on the question whether respondent's service area should be characterized as a 'peninsula' attached to its main region of service or as a mere 'island' surrounded by TVA territory and therefore more properly subject to TVA intrusion. But we can attribute no controlling significance to such characterizations. The most isolated area of private service will necessarily be connected to the private company's main area by at least one power line such as the one present here, and the company may even, as here, serve scattered customers along the line—if indeed the region contains any customers to serve. At the same time a broad area served almost entirely by a private company and contiguous with its main service area may be crisscrossed by the lines of TVA distributors and TVA may even have scattered customers along these lines; the fact that the private company was thus surrounded by TVA might not under this statute justify TVA expansion into the 'peninsula' or 'island,' whatever it may be, served by private power. In the present cases respondent did serve a substantial number of customers in the corridor between the Tazewells and its main service area in Kentucky, but if a 'peninsula,' it was at best a very narrow and tiny one in relation to the possible patterns of power distribution. TVA, on the other hand, served most of the rural areas in Claiborne County and had a substantial minority of the customers in the Tazewells themselves. Under these circumstances, the TVA Board could properly have concluded that the pattern of electric power distribution would be more sensible and efficient if TVA competed in the entire Tazewell municipal area as well as serving the relatively unprofitable rural customers, many of whom were rather close to respondent's transmission line into the Tazewells. In addition, the Board could have considered the existence of its significant, though not primary, service in the Tazewells themselves as a compelling reason for including these villages in its 'area,' since the factors supporting inclusion were in any event significant and since the great disparity of rates in the villages had resulted in significant economic dislocations.
14
Under all these circumstances we cannot say that the conclusion of the TVA Board in the present cases is incompatible with the 'area' concept formulated in the Act. We therefore reverse the judgment of the Court of Appeals and affirm that of the District Court. It is so ordered. Judgment of Court of Appeals reversed and judgment of District Court affirmed.
15
Mr. Justice DOUGLAS and Mr. Justice MARSHALL took no part in the consideration or decision of these cases.
16
Mr. Justice HARLAN, dissenting.
17
These cases present a narrow question of statutory construction, upon which differing views might reasonably be entertained. I cannot, however, agree that the position now adopted by the Court will satisfactorily achieve the purposes evidently sought by Congress in 1959. I therefore respectfully dissent.
18
The scope of judicial review of administrative action is, of course, governed principally by the terms and purposes of the underlying statutory system. Compare generally 4 Davis, Administrative Law Treatise § 30.03 (1958); Jaffe, Judicial Review: Question of Law, 69 Harv.L.Rev. 239; Jaffe, Judicial Control of Administrative Action 546 et seq. (1965). The purposes of these statutory provisions are uncommonly plain. The Court acknowledges, as it must, that 'it is clear and undisputed that protection of private utilities from TVA competition was almost universally regarded as the primary objective of the (service area) limitation.' Ante, p. 665.
19
The provisions in question were expected to protect private utilities by 'defin(ing)' and 'limit(ing)' the 'working arrangement that now exists with respect to' the Authority's service area. S.Rep. No. 470, 86th Cong., 1st Sess., 8. They were thus intended to constrict the Authority's discretion as to the expansion of its area of service. It is no disparagement of the Authority to recognize that an orderly system of law does not place the enforcement of a restraint upon discretion into the unfettered hands of the party sought to be restrained; surely, therefore, the scope of judicial review of proceedings involving such limitations should be measured generously.
20
The role of the courts should, in particular, be viewed hospitably where, as here, the question sought to be reviewed does not significantly engage the agency's expertise. This is an instance 'where the only or principal dispute relates to the meaning of the statutory term,' NLRB v. Marcus Trucking Co., 2 Cir., 286 F.2d 583, 591; it may, as Judge Friendly has noted, therefore appropriately be denominated a 'question of law.' Ibid. It presents issues on which courts, and not the Authority, are relatively more expert. See 4 Davis, supra, at § 30.04. No doubt 'economic and engineering aspects,' ante, p. 9, including topography, may influence the Authority's wish to expand its area of service, but such factors can hardly prescribe the terms or stringency of Congress' prohibitions against expansion.
21
In light of these considerations, I am unable to accept this decision, the effect of which is to restrict severely the scope of judicial review of the Authority's determinations under § 15d(a). The Court forbids reviewing courts to set aside such determinations unless they lack 'reasonable support,' and then discovers such support here in the most minimal evidence.1 At bottom, the support adduced for this determination by the Court consists of two facts: first, the Authority's distributor served on July 1, 1957, eight customers in New Tazewell and 20 customers in Tazewell;2 and second, at least some of the other residents of the two municipalities quite understandably would prefer to pay the lower rates for electrical power charged by the Authority.3 If these facts illustrate the 'reasonable support' demanded by the Court, Congress' stringent limitation upon the Authority has proved extraordinarily fragile.4
22
Neither the statute nor the pertinent legislative history provides any formula for the precise measurement of the Authority's service area. However, given Congress' clear purpose to restrict stringently the expansion of the area served by the Authority on July 1, 1957, I think that the emphasis placed by the Court of Appeals on the number of customers served on that date by respondent and the Authority offers the basis of a sensible and practical standard. Certainly Congress did not wish or expect that, as this Court now holds, the question should be left largely, if not entirely, in the hands of the Authority. I would therefore affirm the judgment below for the reasons given in Judge O'Sullivan's opinion for the Court of Appeals, 375 F.2d 403, supplemented by the considerations discussed in this opinion.
1
Tennessee Valley Authority Act of 1933, § 15d(a), 73 Stat. 280, as amended, 73 Stat. 338, 16 U.S.C. § 831n—4(a). The full text of the relevant portion of § 15d(a) is as follows:
'Unless otherwise specifically authorized by Act of Congress the Corporation shall make no contracts for the sale or delivery of power which would have the effect of making the Corporation or its distributors, directly or indirectly, a source of power supply outside the area for which the Corporation or its distributors were the primary source of power supply on July 1, 1957, and such additional area extending not more than five miles around the periphery of such area as may be necessary to care for the growth of the Corporation and its distributors within said area: Provided, however, That such additional area shall not in any event increase by more than 2 1/2 per centum (or two thousand square miles, whichever is the lesser) the area for which the Corporation and its distributors were the primary source of power supply on July 1, 1957: And provided further, That no part of such additional area may be in a State not now served by the Corporation or its distributors or in a municipality receiving electric service from another source on or after July 1, 1957, and no more than five hundred square miles of such additional area may be in any one State now served by the Corporation or its distributors.
'Nothing in this subsection shall prevent the Corporation or its distributors from supplying electric power to any customer within any area in which the Corporation or its distributors had generally established electric service on July 1, 1957, and to which electric service was not being supplied from any other source on the effective date of this Act.'
2
For the owner of an electrically heated home, TVA power might cost $30.50 for a winter month as against $75.53 for the identical amount of power supplied by respondent.
3
S. 2373, 84th Cong., 1st Sess. (1955); H.R. 4266, 85th Cong., 1st Sess. (1957).
4
S. 1855, S. 1869, S. 1986, S. 2145, 85th Cong., 1st Sess. (1957); S. 931, H.R. 3460, 86th Cong., 1st Sess. (1959).
5
One of the Senators active in framing the territorial limitation expressed concern over TVA's powerful bargaining position with respect to its purchase of coal. See S.Rep. No. 470, 86th Cong., 1st Sess., 54 (1959) (Supplemental Views of Senator Randolph).
6
See, e.g., id., at 9 (majority report); id., at 54—55 (Supplemental Views of Senator Randolph); 105 Cong.Rec., 13053 (July 9, 1959) (remarks of Senator Cooper); id., at 13054 (remarks of Senator Holland); id., at 13055 (remarks of Senator Kerr); id., at 13060—13061 (remarks of Senator Randolph); id., at 13061 (remarks of Senator Byrd); hearings on H.R. 3460 before House Committee on Public Works, March 10—11, 1959, 86th Cong., 1st Sess., 110, 115 (testimony of Representative Vinson); id., at 122 (testimony of Representative Boykin).
7
Petitioners' reliance on Kansas City Power & Light Co. v. McKay, 96 U.S. App.D.C. 273, 225 F.2d 924, cert. denied, 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780 (1955), is thus misplaced. The Court in McKay ruled that an explicit statutory provision was necessary to confer standing because of the 'long established rule' that an injured competitor cannot sue to enforce statutory requirements not designed to protect competitors. In the case of statutes concerned with protecting competitive interests, the 'long established rule' is of course precisely the opposite.
8
The Court of Appeals stated at one point:
'But, TVA argues, the 1959 Act must be read as committing to its Board of Directors authority to determine 'the area' in which it was the primary source of power on that date. We find no words in the Act which directly or impliedly delegated to TVA's Board such authority.' 375 F.2d, at 412.
Later in its opinion, however, the court suggests that this statement was not intended to deny any role to the Board's determination:
'We hold that the resolution of the TVA Board did not foreclose the testing of its validity of the District Judge or by this Court on this appeal.' 375 F.2d, at 415.
9
See § 12 of the Tennessee Valley Authority Act, 48 Stat. 65, 16 U.S.C. § 831k.
1
It should be noted that the agency determination upon which the Court places so much weight was reached at a 'special meeting' of the Board of Directors on August 26, 1964, more than eight months after respondent filed its complaint, and only three weeks before trial. One of the staff memoranda upon which the determination was based refers specifically to this litigation. One might have supposed that a determination which was made post litem motam warranted at least cautious treatment.
2
The Court's choice of descriptive phrase is noteworthy. The Court suggests that the Authority's distributor served 'a substantial minority' of the customers in the two Tazewells. The District Court found, in fact, that on July 1, 1957, respondent served 95.3% of those customers. 237 F.Supp. 502, 513.
3
The Court intimates darkly that 'economic dislocations' have occurred. The pertinent evidence appears to consist at bottom of allegations that housing and other forms of economic development tend to locate in areas in which the Authority's less expensive electrical power is available. Surely the Court does not suppose that Congress in 1959 was unaware that the Authority's electrical power is relatively inexpensive, or that it did not recognize that those who reside outside the Authority's service area would find it economically desirable to have that area extended so as to include themselves.
4
It is pertinent to note that neither of the two staff memoranda upon which the Authority's belated determination was explicitly based included among the 'facts which appear to be relevant' (Memorandum from the Manager of Power to the General Manager, Tennessee Valley Authority, August 25, 1964, 2 Transcript of Record 801) any references to 'economic and engineering aspects' (ante, p. 9), or even to any 'economic dislocations' (ante, p. 13). Whatever the relevance of these factors in the eyes of the Court, the Authority's staff appears to have thought them immaterial. The determination itself does not, of course, refer to these factors.
| 89
|
390 U.S. 17
88 S.Ct. 682
19 L.Ed.2d 799
Herbert SCHNEIDER, Appellant,v.Willard SMITH, Commandant, United States Coast Guard.
No. 196.
Argued Dec. 12 and 13, 1967.
Decided Jan. 16, 1968.
Leonard W. Schroeter, and John Caughlan, Seattle, Wash., for appellant.
John S. Martin, Jr., Washington, D.C., for appellee.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Appellant, who has served on board American-flag commercial vessels in various capacities, is now qualified to act as a second assistant engineer on steam vessels. But between 1949 and 1964 he was employed in trades other than that of a merchant seaman. In October 1964 he applied to the Commandant of the Coast Guard for a validation of the permit or license which evidences his ability to act as a second assistant engineer.
2
Under the Magnuson Act, 64 Stat. 427, 50 U.S.C. § 191(b), the President is authorized, if he finds that 'the security of the United States is endangered by * * * subversive activity,' to issue rules and regulations 'to safeguard against destruction, loss, or injury from sabotage or other subversive acts' all 'vessels' in the territories or waters subject to the jurisdiction of the United States.1
3
President Truman promulgated Regulations, 33 CFR, pt. 6, which give the Commandant of the Coast Guard authority to grant or withhold validation of any permit or license evidencing the right of a seaman to serve on a merchant vessel of the United States. § 6.10—3. He is directed not to issue such validation unless he is satisfied that 'the character and habits of life of such person are such as to authorize the belief that the presence of the individual on board would not be inimical to the security of the United States.' § 6.10—1.
4
The questionnaire, which appellant in his application was required to submit, contained the following inquiry which he answered:
5
'ITEM 4. Do you now advocate, or have you ever advocated, the overthrow or alteration of the Government of the United States by force or violence or by unconstitutional means?
6
'Answer: No.'
7
The questionnaire contained the following inquiries which related to his membership and participation in organizations which were on the special list of the Attorney General as authorized by Executive Order 10450, 18 Fed.Reg. 2489:
8
'ITEM 5. Have you ever submitted material for publication to any of the organizations listed in Item 6 below? 'Answer. No.
9
'ITEM 6. Are you now, or have you ever been, a member of, or affiliated or associated with in any way, any of the organizations set forth below? (There followed a list of more than 250 organizations.)
10
'Answer. Yes.
11
'If your answer is 'yes,' give full details in Item 7.
12
'ITEM 7. (Use this space to explain Items 1 through 6. * * * Attach a separate sheet if there is not enough space here.)
13
'Answer. I have been a member of many political & social organizations, including several named on this list.
14
'I cannot remember the names of most of them & could not be specific about any.
15
'To the best of my knowledge, I have not been a member or participated in the activities of any of these organizations for ten years.'
16
Upon receiving the questionnaire returned by the appellant, the Commandant advised him that the information was not sufficient and that answers to further interrogatories were necessary.2
17
In reply, appellant, speaking through his counsel, admitted to the Commandant that he had been a member of the Communist Party as well as other organizations on the Attorney General's list and that he had subscribed to People's World. He said that he had joined the Party because of his personal philosophy and idealistic goals, but later quit it and the other organizations due to fundamental disagreement with Communist methods and techniques. But beyond that he said he would not answer because 'it woudl be obnoxious to a truly free citizen to answer the kinds of questions under compulsion that you require.' The Commandant declined to process the application further, relying upon 33 CFR § 121.05(d)(2), which authorizes him to hold the application in abeyance if an applicant fails or refuses to furnish the additional information.
18
Appellant thereupon brought this action for declaratory relief that the provisions of the Magnuson Act in question and the Commandant's actions thereunder were unconstitutional, praying that the Commandant be directed to approve his application and that he be enjoined from interfering with appellant's employment upon vessels flying the American flag.
19
A three-judge court was convened and the complaint was dismissed. 263 F.Supp. 496. The case is here on appeal, 28 U.S.C. § 1253. We postponed the question of jurisdiction to the merits. 389 U.S. 810, 88 S.Ct. 53, 19 L.Ed.2d 62.
20
We agree, as does appellee, that the case was one to be heard by a threejudge court and that accordingly we have jurisdiction of this appeal. For appellant did raise the question as to whether the statute was unconstitutional because of vagueness and abridgement of First Amendment rights and also questioned whether the power to install a screening program was validly delegated. A three-judge court was accordingly proper. Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377; Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179.
21
The Magnuson Act gives the President no express authority to set up a screening program for personnel on merchant vessels of the United States. As respects 'any foreign-flag vessels' the power to control those who 'go or remain on board' is clear. 50 U.S.C. § 191(a). As respects personnel of our own merchant ships, the power exists under the Act only if it is found in the power to 'safeguard' vessels and waterfront facilities against 'sabotage or other subversive acts,' that is, under § 191(b). The Solicitor General argues that the power to exclude persons from vessels 'clearly implies authority to establish a screening procedure for determining who shall be allowed on board.' But that power to exclude is contained in § 191(a) which, as noted, applies to 'foreign-flag vessels,' while, as we have said, the issue tendered here must find footing in § 191(b).3
22
We agree with the District Court that keeping our merchant marine free of saboteurs is within the purview of this Act. Our question is a much narrower one.
23
The Regulations prescribe the standards by which the Commandant is to judge the 'character and habits of life' of the employee to determine whether his 'presence * * * on board' the vessel would be 'inimical to the security of the United States':
24
'(a) Advocacy of the overthrow or alteration of the Government of the United States by unconstitutional means.
25
'(b) Commission of, or attempts or preparations to commit, an act of espionage, sabotage, sedition or treason, or conspiring with, or aiding or abetting another to commit such an act.
26
'(c) Performing, or attempting to perform, duties or otherwise acting so as to serve the interests of another government to the detriment of the United States.
27
'(d) Deliberate unauthorized disclosure of classified defense information.
28
'(e) Membership in, or affiliation or sympathetic association with, any foreign or domestic organization, association, movement, group, or combination of persons designated by the Attorney General pursuant to Executive Order 10450, as amended.' 33 CFR § 121.03.
29
If we assume arguendo that the Act authorizes a type of screening program directed at 'membership' or 'sympathetic association,' the problem raised by it and the Regulations would be kin to the one presented in Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231, where a teacher to be hired by a public school of Arkansas had to submit an affidavit 'listing all organizations to which he at the time belongs and to which he has belonged during the past five years.' Id., at 481, 81 S.Ct., at 248.
30
We held that an Act touching on First Amendment rights must be narrowly drawn so that the precise evil is exposed; that an unlimited and indiscriminate search of the employee's past which interferes with his associational freedom is unconstitutional. Id., at 487—490, 81 S.Ct., at 251—253.
31
If we gave § 191(b) the broad construction the Solicitor General urges, we would face here the kind of issue present in Shelton v. Tucker, supra, whether government can probe the reading habits, political philosophy, beliefs, and attitudes on social and economic issues of prospective seamen on our merchant vessels.
32
A saboteur on a merchant vessel may, of course, be dangerous. But no charge that appellant was a saboteur was made. Indeed, no conduct of appellant was at issue before the Commandant. The propositions tendered in the complaint were (1) plaintiff is now and always has been loyal to the United States; (2) he has not been active in any organization on the Attorney General's list for the past 10 years; (3) he has never committed any act of sabotage or espionage or any act inimical to the security of the United States. Those propositions were neither contested by the Commandant nor conceded. He took the position that admission of evidence on those propositions was 'irrelevant and immaterial.'
33
We are loath to conclude that Congress, in its grant of authority to the President to 'safeguard' vessels and waterfront facilities from 'sabotage or other subversive acts,' undertook to reach into the First Amendment area. The provision of the Act in question, 50 U.S.C. § 191(b), speaks only in terms of actions, not ideas or beliefs or reading habits or social, educational, or political associations.
34
The purpose of the Constitution and Bill of Rights, unlike more recent models promoting a welfare state, was to take government off the backs of people. The First Amendment's ban against Congress 'abridging' freedom of speech, the right peaceably to assemble and to petition, and the 'associational freedom' (Shelton v. Tucker, supra, at 490, 81 S.Ct. 247) that goes with those rights creates a preserve where the views of the individual are made inviolate. This is the philosophy of Jefferson that '(t)he opinions of men are not the object ov civil government, nor under its jurisdiction * * *. (I)t is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order * * *.'4
35
No act of sabotage or espionage or any act inimical to the security of the United States is raised or charged in the present case.
36
In United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770, the Court construed the statutory word 'lobbying' to include only direct representation to Congress, its members, and its committees, not all activities tending to influence, encourage, promote, or retard legislation. Id., at 47, 73 S.Ct., at 546. Such an interpretation of the statute, it was said, was 'in the candid service of avoiding a serious constitutional doubt' (ibid.)—doubts that were serious 'in view of the prohibition of the First Amendment.' Id., at 46, 73 S.Ct. at 546.
37
The holding in Rumely was not novel. It is part of the stream of authority which admonishes courts to construe statutes narrowly so as to avoid constitutional questions.5
38
The Court said in Rumely, 'Whenever constitutional limits upon the investigative power of Congress have to be drawn by this Court, it ought only to be done after Congress has demonstrated its full awareness of what is at stake by unequivocally authorizing an inquiry of dubious limits. Experience admonishes us to tread warily in this domain.' 345 U.S., at 46, 73 S.Ct., at 546.
39
The present case involves investigation, not by Congress but by the Executive Branch, stemming from congressional delegation. When we read that delegation with an eye to First Amendment problems, we hesitate to conclude that Congress told the Executive to ferret out the ideological strays in the maritime industry. The words it used—'to safeguard * * * from sabotage or other subversive acts'—refer to actions, not to ideas or beliefs. We would have to stretch those words beyond their normal meaning to give them the meaning the Solicitor General urges. Rumely, and its allied cases, teach just the opposite—that statutory words are to be read narrowly so as to avoid questions concerning the 'associational freedom' that Shelton v. Tucker protected and concerning other rights within the purview of the First Amendment.
40
Reversed.
41
Mr. Justice BLACK, while concurring in the Court's judgment and opinion, also agrees with the statement in Mr. Justice FORTAS' concurring opinion that the statute under consideration, if construed to authorize the interrogatories involved, is offensive to the First Amendment.
42
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
43
Mr. Justice FORTAS, concurring.
44
I concur in the opinion of the Court. Reversal is dictated because the interrogatories which petitioner refused to answer offend the First Amendment. Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). (They also pass the outermost bounds of reason. No agency may be permitted to require of a person, subject to heavy penalty, sworn essays as to his 'attitude toward the form of Government in the United States' or 'full particulars,' under oath, without time limit, as to contributions made and functions attended with respect to 250 organizations.) I agree that since Congress did not specifically authorize a personnel screening program, authority to impose procedures of the comprehensive type here involved, necessarily impinging on First Amendment freedoms, may not be inferred from dubious general language. The fault, however, is not that there was an inadequate or improper delegation, but that Congress did not authorize the type of investigation which was launched. Needless to say, Congress has constitutional power to authorize an appropriate personnel screening program and to delegate to executive officials the power to implement and administer it. See United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967).
45
Mr. Justice STEWART, agreeing with the separate views of Mr. Justice FORTAS, concurs in the judgment.
46
Mr. Justice WHITE, with whom Mr. Justice HARLAN joins, concurring in the result.
47
I agree with the Court that the Magnuson Act did not authorize the inquiry undertaken by the Coast Guard Commandant and that therefore the judgment of the District Court must be reversed. I express no opinion as to the scope of inquiry which Congress could constitutionally provide with respect to applicants for the position of merchant seaman.
1
Section 191 provides in part:
'Whenever the President finds that the security of the United States is endangered by reason of actual or threatened war, or invasion, or insurrection, or subversive activity, or of disturbances or threatened disturbances of the international relations of the United States, the President is authorized to institute such measures and issue such rules and regulations—
'(a) to govern the anchorage and movement of any foreign-flag vessels in the territorial waters of the United States, to inspect such vessels at any time, to place guards thereon, and, if necessary in his opinion in order to secure such vessels from damage or injury, or to prevent damage or injury to any harbor or waters of the United States, or to secure the observance of rights and obligations of the United States, may take for such purposes full possession and control of such vessels and remove therefrom the officers and crew thereof, and all other persons not especially authorized by him to go or remain on board thereof;
'(b) to safeguard against destruction, loss, or injury from sabotage or other subversive acts, accidents, or other causes of similar nature, vessels, harbors, ports, and waterfront facilities in the United States, the Canal Zone, and all territory and water, continental or insular, subject to the jurisdiction of the United States.'
2
'1. With respect to your statements above, furnish the following information, fully and honestly to the best of your ability:
'(a) List the names of the political and social organizations to which you belonged, and location.
'(b) Furnish approximate dates of membership.
'(c) Furnish full particulars concerning the extent of your activities and participation in the organizations (number and type of meetings/functions attended; positions or offices held; classes or schools attended; contributions made; etc.).
'(d) Your reason for discontinuing the membership.
'(e) Your present attitude toward the principles and objectives of the organizations.
'If your answer is 'YES' to the following Questions, explain fully in the space provided at the end of the Interrogatories:
'2. Are you now, or have you ever, been a member of or affiliated with, in any way, the Communist Party, its Subdivisions, Subsidiaries, or Affiliates?
'_........................._ (Answer 'Yes' or 'No.')
'3. Have you at any time been a subscriber to the 'People's World'?
'_........................._ (Answer 'Yes' or 'No.') If your answer is 'Yes,' give dates.
4. 'Have you at any time engaged in any activities in behalf of the 'People's World'? _........................._ (Answer 'Yes' or 'No.')
'If your answer is 'Yes,' furnish details.
'5. What is your present attitude toword the Communist Party?
'6. What is your present attitude toword the principles and objectives of Communism?
'7. What is your attitude toward the form of Government in the Unied States?'
3
It is true that Senator Magnuson when discussing this measure stated that it 'will give the President the authority to invoke the same kind of security measures which were invoked in World War I and in World War II.' 96 Cong.Rec. 10795. And from that the Solicitor General argues that the Act authorizes the broad sweeping personnel screening programs which were in force during World War II.
But this reference by Senator Magnuson apparently was to § 191(a) which, as noted, covers 'any foreign-flag vessels.' When it came to § 191(b) Senator Magnuson did not speak in terms of any screening program, but said:
'It (the bill) also has this purpose, which I think is a good one: As I have said before, the last stronghold of subversive activity in this country, in my opinion, or at least the last concentrated stronghold, has been argund our waterfronts. It would be impossible for destruction to come to any great port of the United States, of which there are many, as the result of a ship coming into port with an atomic bomb or with biological or other destructive agency, without some liaison ashore.
This would give authority to the President to instruct the FBI, in cooperation with the Coast Guard, the Navy, or any other appropriate governmental agency, to go to our water fronts and pick out people who might be subversives or security risks to this country. I think it goes a long way toward taking care of the domestic stuation, as related to this subject, particularly in view of the large amount of talk we have had in the Senate within the past few days about Communists. The bill also protects that last loophole which is left, by which there might be some actual destruction along the shores of the United States.' 96 Cong.Rec. 11321.
4
A Bill for Establishing Religious Freedom, Jeffersonian Cyclopedia 976 (1900).
5
United States v. Delaware & H. Co., 213 U.S. 366, 407—408, 29 S.Ct. 527, 535—536, 53 L.Ed. 836; United States v. Harriss, 347 U.S. 612, 618, n. 6, 74 S.Ct. 808, 812, 98 L.Ed. 989; International Association of Machinists v. Street, 367 U.S. 740, 749, 81 S.Ct. 1784, 1789, 6 L.Ed.2d 1141; Lynch v. Overholser, 369 U.S. 705, 710—711, 82 S.Ct. 1063, 1067, 1068, 8 L.Ed.2d 211; United States v. National Dairy Products Corp., 372 U.S. 29, 32, 83 S.Ct. 594, 597, 9 L.Ed.2d 561.
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390 U.S. 29
88 S.Ct. 824
19 L.Ed.2d 808
William EPTONv.NEW YORK (two cases).
Nos. 502, Misc., and 771, Misc.
Supreme Court of the United States
October Term, 1967.
January 22, 1968
Rehearing Denied March 4, 1968.
See 390 U.S. 976, 88 S.Ct. 1057, 1061.
Eleanor Jackson Piel, for William Epton.
Frank S. Hogan, H. Richard Uviller and Michael Juviler, for New York.
On Petition for Writ of Certiorari to the Court of Appeals of New york.
PER CURIAM.
1
The petition for a writ of certiorari is denied in No. 502, Misc. The motion to dismiss is granted in No. 771, Misc. and the appeal is dismissed for want of a substantial federal question.
2
Mr. Justice STEWART, concurring in the denial of certiorari and the dismissal of the appeal.
3
I join the denial of certiorari in No. 502, Misc., and the dismissal of the related appeal in No. 771, Misc., but only because Epton has been sentenced to serve three concurrent one-year terms: one for conspiring to riot, New York Penal Law (1944 and 1966 Cum.Supp.), §§ 580, 2090; one for advocating criminal anarchy, §§ 160, 161; and one for conspiring to engage in such advocacy, §§ 580, 160, 161. I think the riot conviction presents no substantial federal question,* and since the three sentences were ordered to run concurrently, I conclude that these cases do not require the Court to consider either the criminal anarchy conviction or the associated conspiracy conviction. See Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 87 L.Ed. 1774; Lanza v. State of New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384. If the constitutionality of New York's criminal anarchy laws were properly presented, however, I would vote to grant the petition for certiorari and note probable jurisdiction of the appeal, to reconsider the Court's decision in Gitlow v. People of State of New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138, and to decide whether the New York anarchy statutes, either on their face or as applied in these cases, violate the First and Fourteenth Amendments.
4
Mr. Justice DOUGLAS, dissenting.
5
I would hear argument in these cases, since I am of the opinion that all questions presented, including those under the first count of the indictment for conspiring to riot, present substantial federal questions.
6
In the first count, the State alleged the commission of 15 overt acts by Epton in furtherance of the alleged conspiracy to riot. The alleged acts consisted in part of speeches made by Epton and his participation in the preparation and distribution of certain leaflets. Such activities, of course, are normally given the protection of the First Amendment with exceptions not now necessary to state. See Yates v. United States, 354 U.S. 98, 77 S.Ct. 1064, 1 L.Ed.2d 1356; Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137; Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131; Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430; Bridges v. State of California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192; Gitlow v. People of State of New York, 268 U.S. 652, 672, 45 S.Ct. 625, 69 L.Ed. 1138 (dissenting opinion); Abrams v. United States, 250 U.S. 616, 624, 40 S.Ct. 17, 63 L.Ed. 1173 (dissenting opinion); Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470; Chaplinksy v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031; Feiner v. People of State of New York, 340 U.S. 315, 329, 71 S.Ct. 303, 95 L.Ed. 267 (dissenting opinion).
7
Under New York law, a conviction for conspiracy requires both an agreement to commit an unlawful act and at least one overt act in furtherance of that agreement.1 Whether the overt act required to convict a defendant for conspiracy must be shown to be constitutionally unprotected presents an important question. An argument can of course be made that overt acts are used only to demonstrate the existence of a conspiracy, and to draw reasonable inferences as to the intent of the alleged conspirator.
8
Although the Court has indicated that the overt act requirement of the treason clause ensures that 'thoughts and attitudes alone cannot make a treason' (Cramer v. United States, 325 U.S. 1, 29, 65 S.Ct. 918, 89 L.Ed. 1441), it has never decided whether activities protected by the First Amendment can constitute overt acts for purposes of a conviction for treason. The matter was adverted to in Cramer v. United States:
9
'Thus the crime of treason consists of two elements: adherence to the enemy; and rendering him aid and comfort. A citizen intellectually or emotionally may favor the enemy and harbor sympathies or convictions disloyal to this country's policy or interest, but so long as he commits no act of aid and comfort to the enemy, there is no treason. On the other hand, a citizen may take actions which do aid and comfort the enemy—making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength—but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason.' (Italics added.) Id., at 29, 65 S.Ct., at 932.
10
In the same case, the four dissenters noted that:
11
'It is plain * * * that the requirement of an overt act is designed to preclude punishment for treasonable plans or schemes or hopes which have never moved out of the realm of thought or speech.' Id., at 61, 65 S.Ct., at 947.
12
The lower federal courts have considered the question in a few cases, the most exhaustive treatment probably being found in Chandler v. United States, 171 F.2d 921 (C.A. 1st Cir. 1948). Treason, of course, is not the charge here. Yet the use of constitutionally protected activities to provide the overt acts for conspiracy convictions might well stifle dissent and cool the fervor of those with whom society does not agree at the moment. Society, like an ill person, often pretends it is well or tries to hide its sickness. From this perspective, First Amendment freedoms safeguard society from its own folly. As long as the exercise of those freedoms is within the protection of the First Amendment, the question is presented whether this Court should permit criminal convictions for conspiracy to stand, when they turn on that exercise.
13
The issue, then, is whether Epton's speeches and his participation in the preparation and distribution of leaflets can be used as overt acts in a conspiracy charge, without a requirement that they must first be found constitutionally unprotected.
14
Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356, can be construed to permit constitutionally protected activities to be used as overt acts in criminal conspiracies. But there was a separate opinion in that case, written by my Brother BLACK, which I joined, saying in part:
15
'The only overt act which is now charged against these defendants is that they went to a constitutionally protected public assembly where they took part in lawful discussion of public questions, and where neither they nor anyone else advocated or suggested overthrow of the United States Government.' Id., at 343, 77 S.Ct., at 1089.
16
The majority in the Yates case, however, went to some lengths in protecting First Amendment freedoms. There advocacy was the heart of the case, and the majority held that 'advocacy' to be an ingredient of a crime 'must be of action and not merely abstract doctrine,' id., at 325, 77 S.Ct., at 1080. The Court reversed the convictions because the instructions to the jury did not properly delineate that line of distinction. While the majority held that attending a meeting could be an overt act, id., at 334, 77 S.Ct., at 1085, it went on to hold that the line between constitutionally protected First Amendment rights and those that exceeded the limits must be carefully drawn in instructions to the jury. In the present cases, however, the trial court in its charge to the jury made no qualifications whatsoever as to the permissible range of the use of speech and publications as overt acts. There was no instruction whatsoever that the jury would first have to determine that the particular speech or the particular publication was not constitutionally protected. The principle of Yates was therefore disregarded.2
17
Since in my opinion, none of Epton's convictions is free of doubt there is no basis for applying the rule that there is no occasion to review a conviction on one count of an indictment if the judgment on another count is valid and the sentences are concurrent. See Lanza v. State of New York, 370 U.S. 139, 146, 152, 82 S.Ct. 1218, 8 L.Ed.2d 384 (separate opinion of Mr. Justice BRENNAN); Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 87 L.Ed. 1774; Whitfield v. State of Ohio, 297 U.S. 431, 438, 56 S.Ct. 532, 80 L.Ed. 778. Like my Brother STEWART, I believe that Epton's convictions for advocating criminal anarchy and conspiracy to advocate criminal anarchy should be reviewed by this Court to consider whether New York's anarchy statutes either on their face or as applied here pass beyond the pale of constitutionality. See Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629; Gitlow v. People of State of New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138. Accordingly, I would grant certiorari in No. 502, Misc., note probable jurisdiction in No. 771, Misc., and set the cases for oral argument.
*
It is true that some of the acts relied upon by the State to establish the existence of a conspiracy to riot consisted of speeches made by Epton. Like my Brother DOUGLAS, I think it is at least arguable that a State cannot convict a man of criminal conspiracy without first demonstrating some
constitutionally unprotected overt act in furtherance of the alleged unlawful agreement. But the State in these cases presented proof that Epton had actively participated in the formation of a group dedicated to armed revolt against the police under the direction of 'block captains' and with the assistance of 'terrorist bands,' equipped with Molotov cocktails that Epton himself had explained how to use. In the context of this record, activities such as these can make no serious claim to constitutional protection.
1
N.Y.Penal Law, §§ 105.00-105.20 (1967). At the time of Epton's trial, the New York law was essentially the same N.Y.Penal Law, §§ 580, 583 (1966 Cum. Supp.).
2
My Brother STEWART agrees that 'it is at least arguable that a State cannot convict a man of criminal conspiracy without first demonstrating some constitutionally unprotected overt act in fur-
therance of the alleged unlawful agreement.' But he dismisses that contention in this case because, in his view, the record demonstrates that at least some of Epton's activities were not constitutionally protected. Perhaps my Brother STEWART means that although some overt acts charged were constitutionally protected, others were not. The latter is doubtless true. But the charge to the jury drew no such discriminating line; and so far as we know the conviction may have rested in whole or in part on overt acts which had First Amendment protection. Because the jury rendered a general verdict on count one, it is impossible for this Court to determine whether a protected activity was employed to convict Epton of conspiracy to riot. In such circumstances, our precedents indicate that the proper procedure would be to set aside the conviction if any of the acts submitted were constitutionally protected. See Haupt v. United States, 330 U.S. 631, 631, n. 1, 67 S.Ct. 874, 91 L.Ed. 1145. Cf. Yates v. United States, 354 U.S. 298, 311-312, 77 S.Ct. 1064, 1 L.Ed.2d 1356; Cramer v. United States, 325 U.S. 1, 36, n. 45, 65 S.Ct. 918, 89 L.Ed. 1441; Stromberg v. People of State of California, 283 U.S. 359, 367-368, 51 S.Ct. 532, 75 L.Ed. 1117. Moreover, the approach taken by my Brother STEWART hearkens back to the view of the Court in Dennis v. United States, 341 U.S. 494, 512-513, 71 S.Ct. 857, 95 L.Ed. 1137, that the question of 'clear and present danger' is one of law. The Court ruled that as long as the jury had found the facts essential to establish the substantive crime, the protection of the First Amendment against conviction on those facts was a matter of law for the courts to determine. I dissented in that case, in part on the ground that our precedents had established that the 'question of the clear and present danger, being so critical an issue in the case, would be a matter for submission to the jury.' Id., at 587, 71 S.Ct., at 906. And, as already noted, the Court in Yates v. United States showed greater solicitude toward the role of the jury in this sensitive First Amendment area than the Court in Dennis or this Court today. To be consistent with the approach taken in Yates, the jury should be instructed on all points of law that make the difference between conviction and acquittal.
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